The general rule on costs is that "costs follow the event", ie loser pays. However, there is a growing body of case law, mainly emanating from the Commercial Court, which suggests that in complex litigation the court should engage in a more detailed analysis. Where litigation is classified as complex and where the plaintiff who is successful overall is unsuccessful on one or more discrete claims, the court will consider the amount of time and expense (for example, expert evidence) which relates to those claims which were ultimately unsuccessful.
Costs of personal injuries proceedings have tended to follow the general rule. However, in the case of Wright v. HSE and Mater Miscordiae University Hospital Limited, the High Court limited the costs awarded to the plaintiff to 65% of her costs on the basis that, following a 21-day trial, she was successful in only one of her four claims.
The plaintiff made three distinct claims of negligent medical treatment relating to three separate periods she spent in hospital. She also made a fourth discrete claim for medical negligence regarding the actions of her surgeon.
The court considered two key questions:
whether the proceedings could be classified as complex such as to warrant the court adopting a greater degree of scrutiny when addressing the costs issue; and who, for legal purposes, could be considered to be the 'overall winner' in the proceedings. On the first question, the court noted that the vast majority of personal injury cases would not be classified as complex because they usually involve the consideration of one particular event (eg, a road traffic accident or an assault). In contrast, many cases before the Commercial Court would be classified as complex with the court making decisions on a number of discreet issues.
The court considered all four claims advanced by the plaintiff individually. In each case, the court noted that the negligence claim was separate...