In the matter of Harrap v Brighton and Sussex University Hospitals NHS Trust  EWHC 1063 (QB) as a result of the Defendant's error, a Claimant who discontinued partway through trial, was not ordered to pay all of the Defendant's costs as the lateness of the discontinuance was as a result of the Defendant's error.
The underlying action was a claim for clinical negligence following the Defendant's alleged failure to arrange a cardiology review. It was the Claimant's contention that had the review taken place he would have undergone treatment which would have avoided the stroke from which he later suffered.
On the third day of the trial in March 2018, the Claimant discontinued the action.
The Claimant's Submissions
It was accepted by the Claimant that they would need to bear the Defendant’s costs of the action as a result of the discontinuance. However, the Claimant's view was that they should only be ordered to pay costs up to the exchange of witness statements and that thereafter the Defendant should pay the Claimant’s costs.
The evidence of the Defendant's factual witness, Professor Hildick Smith, proved to be detrimental to the claim to such a degree that the Claimant was required to discontinue. The evidence in relation to the review of a transesophageal echocardiogram (TOE) provided at trial by Professor Hildick Smith had not been present in his signed witness statement. This was fatal to the Claimant's case on factual causation as the reasonable timeline for the referral which was established by the new evidence, was extended well beyond the date of the Claimant's stroke.
It was therefore the Claimant's case that had the Defendant sufficiently proofed the witness at the time of preparing the evidence, the Claimant would have discontinued at a far earlier stage.
The Defendant's Submissions
The Defendant contended that the claim was always doomed to failure and that the Claimant should not be able to avoid the usual costs consequences of discontinuance by relying on this one point.
The further information provided by the witness did not amount to a change in circumstances and the Claimant's attempt to make it appear as such was simply a method of trying to avoid the inevitable consequences of discontinuing a case which was doomed to failure.
The starting point where a Claimant has discontinued a claim is CPR 38.6(1):
“(1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.”
Mrs Justice Lambert DBE, noted that there is a high hurdle for displacing the usual rule. In considering her judgment she made reference to the guiding principles when considering making an order other than the usual rule; set out in Teasdale v HSBC Bank Plc  EWHC 612.
As to the merits of the claim, Mrs Justice Lambert DBE noted that she did not consider that the claim had been doomed to fail; at the point of discontinuation she still had an open mind as to the prospects. The evidence provided by Professor Hildick Smith did constitute a change of circumstance and the new evidence had a direct bearing on Claimant's case.
The Defendant’s conduct was considered to have been unreasonable either in that they did not realise the relevance of the further information or, alternatively, that they had not adequately proofed the witness.
Taking the above into account, it was decided that the threshold had been reached and that the general rule in 38.6 should be displaced. However, the date to which the Claimant was to bear the Defendant's costs was to be to the date of the service of Dr Saltissi's report, rather than the exchange of witness evidence, as this was when the salient issue was considered to have been clarified.
Following the date of this report there was no order as to costs, as the Claimant could have sought further clarification as to the salient dates.
It appears from the comments in this judgment that whether or not the claim was doomed to failure, it was not a strong case. However, up until the point that Professor Hildick Smith’s witness evidence was obtained, it was the Claimant’s decision to continue to proceed on the basis of the prospects as they were. At the point at which the Claimant was not made aware that the Defendant’s evidence assured the failure of the claim, the Claimant ceased to be making their decision to proceed with knowledge of all of the facts.
It is therefore reassuring to see that in this case, the failure by the Defendant to provide the Claimant with timely information which would have led them to discontinue, resulted in an amendment to the usual rule under 38.6(1).