Wright v Health Service Executive & Mater Misericordiae University Hospital Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 19 July 2013
• Neutral Citation: [2013] IEHC 363
• Court: High Court
• Date: 19 July 2013

[2013] IEHC 363

THE HIGH COURT

[No. 9362P/2007]

Wright v Health Service Executive & Mater Misericordiae University Hospital Ltd

BETWEEN

MADELINE WRIGHT

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE AND MATER MISERICORDIAE UNIVERSITY HOSPITAL LIMITED

DEFENDANTS

VEOLIA WATER UK PLC & ORS v FINGAL CO COUNCIL (NO 2) 2007 2 IR 81 2006/57/12085 2006 IEHC 240

FAIRFIELD SENTRY LTD & ANOR v CITCO BANK NEDEERLAND NV & ORS UNREP FINLAY GEOGHEGAN 25.6.2012 2012/14/4109 2012 IEHC 462

RSC (NO 6) (DISCLOSURE OF REPORTS & STATEMENTS) 1998 SI 391/1998

Costs - Complex litigation - Discretion - Departure from normal rule - Clinical negligence - Personal Injuries

Facts: The plaintiff received treatment at the Sligo General Hospital and the Mater Misericordiae University Hospital. She contended that as a result of the clinical negligence of both establishments she had developed serious personal injuries for which she was entitled to damages. The court at first instance held that the only negligence found on behalf of the defendants was the delay in investigating and treating the plaintiff”s symptoms in 2006 for which both defendants were liable. This judgment concerned the costs order relating to the June 2013 proceedings.

The plaintiff submitted that the proceedings were straightforward. The plaintiff argued that she alleged and established clinical negligence on the part of the defendants. As such, the normal rule that costs should follow the event should be implemented. For the plaintiff, it was not about the ‘most points’ scored, but the outcome of the ‘game’ which had gone to the plaintiff. They contended that the only reason other grounds of negligence were presented was that they were meritorious, and that even though the court had not upheld them, that the onus remained on the defendants to satisfy the court.

The defendants argued that the circumstances of the case dictated that they should be awarded the costs of preparing their defence. They contended that the plaintiffs were successful in only one part of their claim, and that the costs order should reflect this. They stated that the normal approach could be departed from on the basis that the court was required to spend a great deal of time and expense considering allegations that went unproven.

The court decided that the proceedings were of sufficient complexity as to fall into a category whereby greater scrutiny be taken with the costs order. They rejected the plaintiff”s submission that this was straightforward litigation as in the proceedings a number of complicated issues were raised, only one of which was successful. The next issue the court had to decide was which party was the overall winner in the proceedings. Having established a right to damages for clinical negligence, the court held that the plaintiff had to be considered as the victor in these proceedings. However, the court held that less than 20% of the 21 day hearing was spent dealing with the ground upon which the plaintiff made out negligence against the defendants, and that this did require reflection in the costs order.

Being of the opinion that it was be harsh to restrict the plaintiff”s entitlement to 20% of costs, the court held that she be awarded 65% of her costs, the court finding that it would be unjust to reduce them below that.

1 1. This judgment deals solely with the issue of the costs of the within clinical negligence proceedings which were heard over a period of 21 days and culminated in a judgment delivered on 7 ^th June, 2013.

Background

2 2. As a result of toppling from her husband's stationary motor scooter at the end of November, 2005, the plaintiff developed back problems for which she was ultimately treated at Sligo General Hospital ("Sligo General") and the Mater Misericordiae University Hospital ("the Mater"). In these proceedings the plaintiff maintained that as a result of the negligence on the part of the clinicians at these hospitals that she went on to develop very significant personal injuries for which she was entitled to maintain a claim for substantial damages.

3 3. It should be readily apparent from my judgment that the plaintiff's claim related to the care afforded to her over very specific periods of time at each of the aforementioned hospitals. In respect of each such period the plaintiff made specific allegations of negligence that her clinicians delayed in investigating, diagnosing and treating her condition. The first period which I considered in any detail in my judgment was that which dealt with her care at Sligo General between the 10 ^th and 26 ^th February, 2006. I then considered the care afforded to the plaintiff when in the Mater between the 28 ^th February, 2006, and the 3 ^rd March, 2006. The last period of care scrutinised in the course of my judgment was that afforded to the plaintiff at Sligo General between the 12 ^th and the 16 ^th March, 2006, when her care was managed in conjunction with advices received from the Mater.

4 4. The plaintiff also made a number of specific allegations against her Orthopaedic Surgeon, Mr. Keith Synott, to the effect that the approach he adopted to her surgery in March, 2006 was fundamentally flawed and that the operation he carried out was not of an acceptable standard due his alleged failure to remove the entirety of the disc for which the surgery was performed.

5 5. In my judgment I concluded that the only negligence on the part of the defendants was in respect of a delay in investigating and treating the plaintiff's symptoms when she returned to Sligo General on the 12 ^th March, 2006 and for which delay both defendants were liable.

6 6. Following the delivery of my judgment I postponed dealing with the costs of the proceeding to allow the parties make submissions as to what might be an appropriate costs order in light of the fact that the plaintiff had failed to establish negligence in all but one aspect of her claim.

Submissions

7 7. Mr. O'Neill, S.C., on the plaintiff's behalf submitted that the within proceedings should be considered to be straightforward litigation rather than the type of complex litigation that had led to Clarke J. to scrutinise with a greater intensity, the court's approach to the issue of costs in Veolia Water UK Plc v. Fingal County Council [2006] IEHC 240 [2007] 2 I.R. 81. He submitted that the case made by the plaintiff was simple, namely whether the defendants had been negligent in relation to the standard of clinical care they had provided for the plaintiff. This, he urged, was a single issue which at the end of the extensive hearing had been resolved in the plaintiff's favour given that I had made a finding of negligence against the defendants. The fact that the Court had rejected the plaintiff's expert opinion on certain aspects of the case was not, he submitted, a ground which would justify the Court departing from the normal rule, namely that costs should follow the event. Putting it in less legal terms, counsel submitted that it was not a balancing exercise as to who won the most points in the match but rather who won the game.

8 8. Mr. O'Neill submitted that it was reasonable for the plaintiff to pursue all of the allegations of negligence canvassed in the course of the proceedings and that these had only been put forward because the plaintiff's experts had advised that they were meritorious. He submitted that it was only in a case where a party had pursued an argument which was unsustainable on the basis of their expert evidence that the Court should isolate that issue and penalise them for adopting such an approach. However, this is not what had occurred in the present case and the plaintiff's experts had given strong evidence supporting the alleged deficiencies in all aspects of the plaintiff's care even though these were not upheld by the Court. Further, Mr. O'Neill argued that regardless of the outcome, the Court would in any event have had to embark upon a complete forensic examination of the plaintiff's treatment at Sligo General and the Mater over the earlier periods of care in order to be in a position to deal with the aspect of her claim in respect of which she was successful as her medical condition was a continuum from the time she first presented at Sligo General in December, 2005 until the events in respect of which negligence was found commencing the 12 ^th March, 2006. It would have been impossible, he submitted, to have dealt with negligence during this last period of the plaintiff's care without visiting in extenso the earlier periods.

9 9. To conclude Mr. O'Neill submitted that the onus was on the defendant to satisfy the Court that it should depart from the well established rule that costs should normally follow the event and that while the Court had a discretion this should only be exercised in a special case and this was not such a case.

10 10. Mr. Gleeson, S.C., on behalf of the defendant relied upon the fact that it was only in supplemental particulars of negligence delivered on the 1 ^st February, 2012, that the plaintiff, for the first time had raised the allegations of negligence upon which she ultimately succeeded. In such circumstances, he submitted that the defendants should be awarded the costs of preparing their defence to the proceedings up to that date.

11 11. Mr. Gleeson submitted that the litigation was of a complex variety and as such would merit the Court scrutinising the proceedings in some detail in terms of the type of costs order that should be made. The case advanced on the plaintiff's behalf was, he contended, not a continuum involving one issue. He referred to the fact that on the opening of the case, counsel for the plaintiff had compartmentalised the proceedings into what might be described as four different legs. As the plaintiff had only been successful in...