Personal injury victim awarded full costs despite failing to prove clinical negligence on both counts

The Court of Appeal has ruled that a claimant who brought a claim for clinical negligence should be awarded the full costs of bringing her case despite losing on one of the issues. In Webb v Liverpool Women’s NHS Foundation Trust it was claimed that baby, Courtney Webb, suffered spinal injuries as a result of the alleged negligence of the hospital trust.

Prior to the birth her mother had been advised that she would probably need a Caesarean section to deliver her baby safely, but she claimed the Hospital Trust had acted negligently by failing to offer the procedure. The claimant’s mother further alleged that Courtney suffered a Brachial Plexus Injury as a result of shoulder dystocia because of the midwives’ negligence. Delivering the verdict in the original case, His Honour Judge Saffman, upheld the first claim but rejected the second.

Regarding costs, the claimant’s solicitor had argued that she was entitled to full recovery of damages for her injury and loss, after a Part 36 offer to settle for 65 per cent of the damages had been rejected by the trust. However, having decided the issue of liability, Judge Saffman ruled the claimant could not recover her costs for the second, unsuccessful, allegation, meaning the deduction of a midwifery expert’s fees and 25 per cent of her solicitors’ time costs.

National firm Irwin Mitchell, representing the claimant, argued the second allegation had not been made or pursued unreasonably or irresponsibly, with both allegations concerning a single event. They further argued it was common, particularly in a relatively complex personal injury case, for a claimant to succeed on some allegations of negligence and to fail on others, stating:

“The mere fact of her failing on a sensibly pursued allegation of negligence did not justify her being deprived of part of her costs.”

However, Judge Saffman said the court had discretion to make such an order, notwithstanding the success of the claim. In the circumstances, it was just to make an issues-based proportionate costs order.

At the appeal hearing Hill Dickinson, representing the defendant, said the judge had been entitled to restrict the claimant’s recovery to her costs relating to the first allegation and to have only those costs assessed on the indemnity basis. However, Sir Stanley Burnton, sitting in the Court of Appeal, said the eventual judgment was clearly more advantageous to the claimant than the proposal in her Part 36 offer. He argued that the two allegations were part of one event, despite relating to separate parts of the mother’s labour, saying:

“The judge could not properly have deprived the claimant of her costs relating to the second allegation,” he said.

‘It cannot be said that it would be unjust for her to be awarded all her costs. Furthermore, in making his determination, the judge did not take into account as he should have, the fact that the defendant could have avoided all the costs of the trial by accepting the claimant’s favourable part 36 offer.”

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