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Unsuccessful plaintiff entitled to outlay of medical negligence proceedings where there were exceptional circumstances

By: James Cross BL

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High Court, having dismissed medical negligence proceedings, makes no order as to costs but orders that the Plaintiff is entitled to all the outlay of the proceedings, to include the witness expenses, on the grounds that: the proceedings were taken on foot of an erroneous letter from defendant doctor and, accordingly, this was an exceptional case and one where justice would not be met by following normal rules of the costs following the event and being awarded to the entirely successful defendant.

Costs of legal proceedings – medical negligence - proceedings arose out of fertility treatment – High Court found in favour of the Defendant - defendants sought 50% of their costs and the plaintiff, notwithstanding the result sought an order for the costs of the first ten days of the hearing and of the submissions prepared with no order as to costs for the remainder of the hearing – defendant wrote a letter to Plaintiff’s GP – High Court accepted that the letter was a mistake – gave evidence about the letter on day 9 and 10 – without prejudice offer – law governing costs – due to misunderstanding caused by letter defendants seeking 50% of costs – experts engaged on the basis of the letter - entire case was opened on the basis of that letter – letter central to the case being taken - because the fibroid was believed to be a protruding fibroid, and only because it was believed to be a protruding fibroid that the second aspect of the plaintiff’s case was sustainable - no guidelines as to when the court should exercise its discretion and award an unsuccessful party its cost - extraordinary circumstances which resulted in the case being taken and which persisted until day 10 of the proceedings – defendant was to a significant extent responsible for the bringing of this case - failure to address the scans until the trial was in progress - exceptional case in which the normal rules of the cost following the event and being awarded to the entirely successful defendant in justice cannot stand – no order as to costs save Plaintiff entitled to all the Outlay of the proceedings to include the witness expenses -

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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