IEHC 302
THE HIGH COURT
[2016 No. 2033 P.]
JUDGMENT of Mr. Justice Barr delivered on the 10th day of May, 2019
1. In a judgment delivered on 20th March, 2019,  IEHC 172, the court found in favour of the plaintiff in her medical negligence action against the defendant, who was sued as a representative of the medical and nursing staff in St. James’s Hospital, Dublin. The plaintiff’s claim rested on two separate allegations of negligence. Firstly, she alleged that her treating cardiologist and the surgeon who had removed her temporary pacemaker, had been negligent in their decision not to insert a temporary pacemaker, also known as a temporary wire, for use in the period after removal of the permanent pacemaker and prior to the insertion of a new pacemaker some days later. Secondly, she alleged that there was failure on the part of her treating doctors and on the part of the nursing staff to look after her post-operative management in a safe and proper manner. In particular, it was alleged that they were negligent in failing to ensure that she was confined to bed in the days when she did not have any temporary wire, due to the fact that she had a premorbid history of syncope and falls.
2. The plaintiff’s permanent pacemaker had been removed on 17th May, 2014. On 18th May, 2014, at approximately 23:18hrs, she had a syncope episode during which she fell and struck her head. The plaintiff alleged that her injuries had been caused due to the aforementioned negligence on the part of her treating doctors and the nursing staff.
3. In the substantive judgment, the court held that there was no negligence on the part of either the plaintiff’s cardiologist or the surgeon, in making the decision not to insert a temporary wire in the circumstances which pertained in this case. The court did, however, find that there was negligence on the part of the plaintiff’s cardiologist for failure to instruct the nursing staff that, having regard to the plaintiff’s premorbid history of syncope and falls, she should be confined to bed as she did not have a temporary wire in place and was, therefore, once again at risk of syncope and falls. The court further found that in allowing the plaintiff to ambulate freely about the ward, there was a failure on the part of the doctors and nursing staff in and about her post-operative management. Accordingly, the court found in favour of the plaintiff on the management issue.
4. The plaintiff was awarded damages in the sum of €63,112.48 against the defendant. This judgment deals with the issue of costs of the action.
Submissions on Costs
5. It was submitted on behalf of the plaintiff that the general rule in relation to costs provided for in O. 99 of the Rules of the Superior Courts was that costs should follow the event. It was submitted that as the plaintiff had been successful in establishing liability against the defendant and had recovered damages within the jurisdiction of the High Court, the general rule should apply and she should be awarded the costs of the action.
6. In response, counsel for the defendant submitted that that was an overly simplistic way of viewing the matter. It completely ignored the fact that the plaintiff had brought her claim on two grounds. While she had succeeded on the second ground, being the management issue, she had failed on the first ground, being the temporary wire issue. It was submitted that that had been a very significant issue, as the plaintiff had in effect challenged the general practice in Irish hospitals in relation to the decision not to use a temporary wire in the circumstances which pertained in the plaintiff’s case. Accordingly, it was a matter upon which the defendant had to call cogent expert evidence. The defendant had been successful in its defence on this issue. In these circumstances, it was submitted that it would be unjust and inappropriate that the plaintiff should recover all her costs, when she had not been successful on a significant element of her claim.
7. Counsel pointed out that a significant amount of the trial, which lasted some seven days, was directed to the cross examination of the plaintiff’s expert witness on the temporary wire issue and in calling evidence from the defendant’s expert on that issue. It was submitted that as the plaintiff had lost on that issue, she should not be allowed her costs in respect of those days, or the costs of the plaintiff’s expert, Mr. Cripps, who gave evidence primarily on the temporary wire issue.
8. Counsel submitted that of the seven days at hearing, the court should discount Day 2 of the hearing, which was effectively a day lost, due to the fact that the plaintiff’s nursing expert, Ms. Mudd, had become unwell on her way to Manchester airport and accordingly, was not able to attend to give evidence that day. While the plaintiff’s husband had been called to give evidence, that had been very brief. He had not been cross examined on behalf of the defendant. If that day was discounted, this meant that the remainder of the hearing amounted to six days. Counsel submitted that of that period, some four days were spent dealing with the temporary wire issue.
9. It was submitted by counsel on behalf of the defendant that having regard to the decisions in Veolia Water UK plc v. Fingal County Council  2 I.R. 81, Wright v. HSE  IEHC 363, and Dardis v. Poplovka  IEHC 249, there was clear authority for the proposition that where a plaintiff was successful in the overall action, but had been unsuccessful in respect of a significant portion of their claim, either on liability or quantum, they should not be awarded costs in respect of the period that was spent dealing with that issue on which the plaintiff had been unsuccessful.
10. Indeed, counsel for the defendant went further and submitted that in this case, the defendant should be awarded the costs of the four days which he submitted had been spent dealing with the temporary wire issue. This would mean that the plaintiff would be awarded the costs of two days of the trial and the defendant would be awarded the costs of the remaining four days. The two sets of costs could then be set off one against the other.
11. In response to these submissions, Mr. O’Neill, S.C., on behalf of the plaintiff submitted that while the plaintiff had been unsuccessful on the temporary wire issue, she had succeeded on the liability issue, in that she had been successful on the management issue. She had also recovered damages within the jurisdiction of the High Court in respect of her injuries. She had not been excessive in relation to the number of expert witnesses that she had called at the trial. She had called one witness in respect of the management issue. She had also called Mr. Cripps, who had given evidence on both the temporary wire issue and the management issue. The defendant had also called two expert witnesses. One of these was a nursing expert, who gave evidence on the management issue. The other, Dr. Quigley, gave evidence on both of the liability issues. In these circumstances, counsel submitted that there was nothing like four days spent dealing exclusively with the temporary wire issue. Nor were there any witnesses that were specifically called in relation to the temporary wire issue alone.
12. Counsel pointed out that the in the Wright case, Irvine J. had held that of the 21 days spent at hearing, 80% of that time had been spent dealing with issues on which the plaintiff had been ultimately unsuccessful. In that case, the plaintiff had made four separate allegations of negligence. She had only succeeded in establishing one of these heads of claim against the defendants. Notwithstanding that, Irvine J. had awarded her 65% of her costs.
13. Finally, it was submitted that as the expert witnesses in question, being Mr. Cripps and Dr. Quigley had given evidence on both of the liability issues and as there had been no appreciable prolonging of the hearing of the action as a result of the investigation of the temporary wire issue, it was just and fair that the plaintiff should be awarded the full costs of the action.
14. The law in relation to the awarding of costs in personal injury and other actions has been developed in a number of decisions in recent years. The seminal case is the judgment of Clarke J. (as he then was) in Veolia Water UK plc v. Fingal County Council  2 I.R. 81. The learned judge began by pointing out two fundamental principles that should always be kept in mind when deciding on the issue of costs. The first is that costs always remain discretionary in the hands of the trial judge. Secondly, the overriding starting position should remain that costs should follow the event. Parties who are required to bring a case to court in order to secure their rights are¸ prima facie, entitled to the reasonable costs of maintaining the proceedings. Parties who successfully defend proceedings are, again, prima facie, entitled to the costs to which they have been put in defending what, at the end of the day, the court has found to be unmeritorious proceedings.
15. Clarke J. went on to state that where the winning party has not succeeded on all issues which were argued before the court then, ordinarily, the court should consider whether it is reasonable to assume that the costs of the parties in pursuing the set of issues before the court were increased by virtue of the successful party having raised additional issues upon which it was not successful. He went on to outline what should happen where the winning party in the action, was not successful on all the issues that it raised at the trial of the action:-
16. In Wright v. HSE & Anor  IEHC 363, Irvine J. had to consider what was the appropriate costs order in a medical negligence case, where the plaintiff had made four separate allegations of negligence in respect of her treatment in two different hospitals over a period of years and had ultimately only been successful in establishing liability in respect of one such occasion. The learned judge found that of the 21 days spent at hearing, less than 20% of that time was spent dealing with the plaintiff’s case between 12th and 16th March, 2006, being the only period in respect of which she had found that the defendants had been negligent. She was satisfied that in complex litigation, which included medical negligence actions, it was appropriate for the court to engage in a detailed analysis of the case when deciding what ultimate order for costs should be made at the conclusion of the proceedings.
“ 2.9 Where the court is so satisfied, then the court should attempt, as best it can, to reflect that fact in its order for costs. Where the matter before the court involved oral evidence and where the evidence of certain witnesses was directed solely towards an issue upon which the party who was, in the overall sense, successful, failed, then it seems to me that, ordinarily, the court should disallow any costs attributable to such witnesses and, indeed, should provide, by way of set off, for the recovery by the unsuccessful party of the costs attributable to any witnesses which it was forced to call in respect of the same issue. A similar approach should apply to any discrete item of expenditure incurred solely in respect of an issue upon which the otherwise successful party failed.
 2.10 Similarly, where it is clear that the length of the trial of whatever issues were before the court was increased by virtue of the raising of issues upon which the party who was successful in an overall sense, failed, then the court should, again ordinarily, award to the successful party an amount of costs which reflects not only that that party should be refused costs attributable to any such elongated hearing, but should also have to, in effect, pay costs to the unsuccessful party in relation to whatever portion of the hearing the court assesses was attributable to the issue upon which the winning party was unsuccessful.”
17. Having reviewed the relevant authorities, Irvine J. set out the following principles as being applicable to a consideration of the issue of costs: -
18. In applying those principles to the facts of the case before her, Irvine J. stated that the court had to fashion a costs order that would do justice between the parties:-
“17. (i) The costs of proceedings in any court are ultimately a matter for the discretion of the trial judge.
(ii) In non-complex litigation a successful plaintiff will usually be entitled to an order for the reasonable costs of bringing their case to court to secure their rights. Similarly, a successful defendant will normally be entitled to an order providing for their reasonable costs of defending the action.
(iii) In complex litigation, where there are several events or relatively discrete issues which have not all been resolved in favour of the party who may be considered to have been the successful party in the overall sense, the court should look with greater scrutiny as to how the costs should be treated.
(iv) Where in complex litigation it can be concluded with some degree of certainty that the trial of any discrete issue of law and/or fact which was not resolved in favour of the successful party had the effect of increasing the costs of the proceedings by extending the duration of the hearing then the court should reflect this fact in its order for costs.
(v) Where in complex litigation the party who is in the overall sense considered to have been the successful party has unsuccessfully litigated an issue requiring evidence to be heard from witnesses directed solely towards that issue, the court should disallow the costs of that party's witnesses and should consider making an order that the party who was successful on the issue be paid their costs which should then be set off against any order for costs made against them.
(vi) In complex litigation the court should seek to fashion an order for costs that will do more than award the costs to the winning side so as to discourage parties from raising additional unmeritorious issues.”
19. Irvine J. noted that in those proceedings, the duration of the proceedings had been significantly extended due to the pursuit by the plaintiff of the allegation of negligence which had not been substantiated and which greatly increased the costs of both parties. She found that no more than 20% of the evidence touched upon the period when the plaintiff was actually successful in establishing negligence against the defendants. The learned judge went on to state that as the plaintiff had made a discrete allegation of negligence against a particular surgeon and as that issue probably took up about three days of court time in terms of expert evidence, she believed that that would have justified the court in making some type of costs order in favour of the defendant and then setting that off against the plaintiff’s costs. However, as that practice had not to date been customary in that type of litigation, she decided against such an approach and stated that she would do no more than reflect in a proportionate way, the plaintiff’s failure to succeed on that issue when reducing the level of costs to which she was entitled. Irvine J. awarded the plaintiff 65% of her costs.
“31. […] The action involved a number of relatively discreet issues in respect of which the plaintiff failed and in light of the Court’s findings I believe it behoves the Court to fashion a costs order that will do justice between the parties having regard to those findings.”
32. Just because a plaintiff has one good point they should not, to my mind, be permitted to litigate a myriad of others and have the court make an order requiring the successful defendant on such issues to pay for that luxury. There must be some sanction in terms of costs should this occur. Further, in clinical negligence litigation, the career and reputation of the clinician is inevitably attacked and if there be no penalty for making allegations of negligence which fail, unless the plaintiff loses on every point, it seems to me that plaintiffs may be encouraged to pursue any point upon which they can garner even the most modest support and expect the defendant to cover their costs of having done so. It is not beyond the realms of possibility that an unscrupulous solicitor might use the potential costs of litigation as a type of battering ram to achieve a settlement in a case that a defendant might otherwise contest were it not for the exorbitant costs of defending the action... I do not believe that the plaintiff should enjoy absolute immunity in respect of the costs of their pursuit of allegations of negligence in respect of which they are unsuccessful if by pursuing the same they have significantly lengthened the trial or otherwise increased the costs of the proceedings by making their opponent retain additional witnesses in respect of those issues.”
20. In Godsil v. Ireland  4 I.R. 535, McKechnie J. set out the rationale behind the general rule in relation to the awarding of costs in the following terms at paras. 19 and 20:-
21. McKechnie J. went on to explain the general rule in relation to the awarding of costs in the following terms at para. 23:-
“19. Inter partes litigation for those unaided is, or can be, costly: certainly it carries with it that risk. It is therefore essential in furtherance of the high constitutional right of effective access to the courts on the one hand and the high constitutional right to defend oneself, having been brought there, on the other hand, that our legal system makes provision for costs orders. This is also essential as a safeguarding tool so as to regulate litigation, and the conduct and process thereof, by ensuring that it is carried on fairly, reasonably and in proportion to the matters in issue. Whilst the importance of such orders is therefore clearly self-evident, nevertheless some observations in that regard, even at a general level, are still worth noting.
20. A party who institutes proceedings in order to establish rights or assert entitlements, which are neither conceded nor compromised, is entitled to an expectation that he will, if successful, not have to suffer costs in so doing. At first, indeed at every level of principle, it would seem unjust if that were not so but, it is, with the “costs follow the event” rule, designed for this purpose. A defendant’s position is in principle no different: if the advanced claim is one of merit to which he has no answer, then the point should be conceded: thus in that way he has significant control over the legal process, including over court participation or attendance. If, however, he should contest an unmeritorious point, the consequences are his to suffer. On the other hand, if he successfully defeats a claim and thereby has been justified in the stance adopted, it would likewise be unjust for him to have to suffer any financial burden by so doing. So, the rule applies to a defendant as it applies to a plaintiff.”
22. This Court had to consider the issue of costs in Dardis v. Poplovka  IEHC 249. That case concerned an assessment of damages arising out of an RTA on 21st October, 2009. In the substantive judgment, the plaintiff was awarded damages of €84,688.52. An issue arose as to what order for costs should be made having regard to the fact that the plaintiff had put forward a claim for loss of earnings at the trial in the sum of €620,042.00, but had only recovered the sum of €20,000 in respect of loss of opportunity on the job market.
“23. The general rule is that costs follow the event unless the court otherwise orders: O. 99, r. 1(3) and (4) of the Rules of the Superior Courts 1986. This applies to both the original action and to appeals to this court (Grimes v. Punchestown Developments Co. Ltd.  4 I.R. 515 and S.P.U.C. v. Coogan (No. 2)  1 I.R. 273). Although acknowledged as being discretionary, a court which is minded to disapply this rule can only do so on a reasoned basis, clearly explained, and one rationally connected to the facts of the case to include the conduct of the participants: in effect, the discretion so vested is not at large but must be exercised judicially (Dunne v. Minister for the Environment  IESC 60,  2 I.R. 775 at pp. 783 and 784). The “overarching test” in this regard, as described by Laffoy J. in Fyffes plc v. DCC plc  IEHC 32,  2 I.R. 417 at para. 16, p. 679, is justice related. It is only when justice demands should the general rule be departed from. On all occasions when such is asserted the onus is on the party who so claims.”
23. Having reviewed the authorities on costs which had been opened in the course of argument, the court set out the following general principles at para. 26:-
24. Having reviewed the evidence given at the trial, the court came to the conclusion that the hearing had been prolonged by approximately two days by virtue of the unmeritorious loss of earnings claim which had been made by the plaintiff. The court went on to hold that not only had the hearing been extended by that amount of time, but also that the defendant had been put to extra expense in dealing exclusively with that aspect of the case. In those circumstances, the plaintiff was disallowed two days’ costs and was also disallowed the costs in respect of two witnesses who had both been retained solely in relation to the loss of earnings claim. Furthermore, as the court was satisfied that the hearing had been extended by two days due to the unsustainable loss of earnings claim, it awarded the defendant his costs in respect of two days at hearing. The defendant was also awarded the costs payable to his accountant, who had been called to deal with the plaintiff’s loss of earnings claim. The order provided that when the respective costs had been ascertained, they could be set off one against the other.
“26. (i) The general rule which should be applied is that costs follow the event. However, the court has a discretion to depart from this rule when the justice of the case so demands. If there was a discrete issue on which the plaintiff was unsuccessful, he may be denied his costs in respect of that issue, notwithstanding that he was successful in the action overall.
(ii) However, just because the plaintiff's evidence may not have been accepted by the trial judge on one aspect of the case, does not necessarily mean that he should be deprived of any portion of his costs. There will be many issues on which there will be opposing evidence from each party. Just because the judge decides in favor of the defendant on a particular issue, does not mean that the plaintiff should necessarily be penalised in costs. As long as the claim made by the plaintiff was reasonably stateable on his evidence, he should not be penalised just because the judge preferred the defendant's evidence on that issue. For example, there may be a dispute between the medical experts in relation to the level of the plaintiff's disability into the future. The plaintiff's doctors may have given the opinion that the plaintiff would be unfit for anything other than very light work, while the defendant's doctors may have reached the opinion that the plaintiff would be capable of light/medium work, but not for heavy manual work. Even if the trial judge finds with the defendant's doctors and as a result, rules out a portion of the plaintiff's claim for future loss of earnings, or future care costs, the plaintiff should not be deprived of his costs, as long as there was some medical evidence on which he was justified in advancing the claim at the trial.
(iii) Where a plaintiff puts forward a distinct and separate claim, on which he loses completely, such as putting forward a totally unsustainable loss of earnings claim, then it may be appropriate to deny the plaintiff his costs for the time spent at the hearing dealing with the discrete issue on which he has lost. If that is appropriate, he should also be denied the costs of his witnesses, who were called to establish that aspect of his claim.
(iv) It seems to me that the distinction between these two levels is essentially one of degree. If a plaintiff had a stateable case on the issue, he should not be penalised just because the trial judge found in favour of the defendant. However, if the plaintiff has put forward a particular head of claim, that was ultimately held to be unstateable, then it would be appropriate that he should be deprived of his costs in respect of the time spent trying to establish such head of claim at the trial. Thus in order for the plaintiff to be deprived of his costs, there must be a discrete issue which the plaintiff looses completely and the hearing of that issue must have led to a definite elongation of the hearing of the action.
(v) The question then arises as to the circumstances in which it will be appropriate for the trial judge to go further and actually award the defendant some of his costs in dealing with the particular issue. Again it seems to me to be a question of degree. In Veolia Water U.K. plc. v. Fingal County Council, Clarke J. suggested at para. 14, that where the trial was prolonged by an appreciable amount due to the fact that the plaintiff put forward a particular claim on which he was ultimately unsuccessful, then it would be appropriate not only to deny the plaintiff his costs for that portion of the trial, but also to grant the defendant his costs of dealing with that claim for the period by which the hearing was unnecessarily prolonged.
(vi) It seems to me that the approach of Clarke J. in the Veolia case, is a logical and sensible approach to the consideration of whether it is appropriate to award the defendant some of his costs in dealing with a discrete issue. Where a trial has been prolonged by an ascertainable amount and where the defendant has had to incur extra expense in dealing with that head of claim, on which the defendant was ultimately successful at trial, it is appropriate that he should be given his costs in respect of that discrete issue. Thus the defendant would have to establish that he had incurred definite extra expenditure, such as calling witnesses, to deal specifically with that particular issue. In order to recover the witnesses' expenses, it would have to be shown that those witnesses were retained solely to deal with the discrete issue on which the defendant succeeded and were not going to be called to give evidence on other issues in the trial.
(vii) These principles apply in the same way to the converse situation where the defendant is ultimately successful in the overall action, but where the plaintiff succeeds on one or more discrete issues.”
25. Finally, in Naylor (otherwise Hoare) v. Maher  IECA 32), the Court of Appeal looked at the costs issues which might arise where a plaintiff had been successful in one element of his claim, but had been unsuccessful in a significant element of his claim in the context of a probate action. In that case, the plaintiff had challenged the validity of a second will made by the testator on the grounds that same had been procured by undue influence exercised by the defendant over the testator. The court rejected that allegation. However, the court did find with the plaintiff in respect of an alternative claim, that he was entitled to the testator’s farm under the principle of promissory estoppel.
26. In a detailed judgment, Peart J. looked at the interaction between the principles laid down in the Veolia case, and the principles generally applied in probate actions, which had been set out in the decision of the Supreme Court in In Re Morelli, deceased, Vella v. Morelli  I.R. 11. The learned judge stated that in probate actions, notwithstanding the decision in Vella, the Veolia principles still applied. He stated as follows at para. 38:-
27. Applying those principles to the facts of the case, Peart J. held that the plaintiff should suffer a deduction of 25% of his costs, due the fact that he had been unsuccessful on the undue influence issue.
“38. In my view, having regard to the decision in Vella v. Morelli, yet tempered by the more recent principles in Veolia, and taking into account the unusual length of the hearing in this case, and the undisputed fact that a significant amount of time was occupied by the failed issue of undue influence, it is appropriate that some deduction be made to the amount of costs to which the plaintiff should be entitled to have paid from the deceased's estate.”
28. I am satisfied that counsel for the defendant is correct in his submission that this medical negligence action, which was heard over a period of seven days, is complex litigation of the type envisaged by Clarke J. in Veolia and by Irvine J. in Wright. Accordingly, it is appropriate for the court to adopt a more nuanced approach to the issue of costs, than merely a simple application of the "costs follow the event" rule.
29. I accept the submission of Mr. Nolan SC on behalf of the defendant that the Court should take into account the fact that the plaintiff was not successful on the temporary wire issue. However I am not satisfied that any additional witnesses were called as a result of this. Mr. Cripps gave evidence on behalf of the plaintiff on both issues, being the temporary wire issue and the management issue. The fact that he had to be recalled to the witness box, was due to the fact that the defendant's expert had not referred in his medical report to medical literature to which he intended to refer to in his evidence. This only became known to the defendant's counsel after Mr. Cripps had concluded his evidence and had returned to England. This necessitated the provision of a supplemental report from the defendant’s expert and further cross examination by the defendant's counsel of the plaintiff's expert, Mr. Cripps, for which purpose he had to be brought back from the UK. Thus, the reason why he had to give evidence again on Day 3 of the hearing, was entirely due to the defendant's own making.
30. In relation to the submission that there should be no costs in respect of Day 2 of the hearing, which had had to be truncated due to the fact that the plaintiff's nursing expert, Ms. Mudd, had become ill on her way to Manchester airport, it is noteworthy that on that day, evidence was taken from the plaintiff's husband. That evidence, though short, was significant because he gave evidence that his wife had been allowed to ambulate freely about the ward and had accompanied him to the top of the stairs, at a time when she did not have any temporary wire in place. This was significant evidence. In these circumstances, I think it would be unreasonable to disallow the costs of that day.
31. Having regard to the principles of law enunciated in the cases referred to earlier in this judgment, I am not satisfied that the defendant was put to any appreciable additional expense in terms of the number of witnesses called to give evidence, as a result of the plaintiff not being successful on the temporary wire issue. The plaintiff's cardiologist and the surgeon would have had to have given evidence in any event on the management issue. The defendant's expert, Dr. Quigley, gave evidence on both issues. Thus, I am not satisfied that the defendant had to call any additional witnesses to deal solely with the temporary wire issue.
32. In terms of additional time at hearing on the temporary wire issue, I accept the submission on behalf of the defendant that the length of the trial was prolonged to some extent by virtue of the investigation of this aspects of the case. However, I do not agree with the submission made by counsel on behalf of the defendant, that this additional time amounted to four days out of the seven days at hearing. Given that the experts, Mr. Cripps and Dr. Quigley, gave evidence on both issues, it is simply not tenable to suggest that anything like that period of time was spent dealing with the temporary wire issue. However, in order to do justice between the parties, some deduction has to be made from the costs recoverable by the plaintiff to take account of the fact that the hearing was undoubtedly prolonged to some extent by an investigation of the temporary wire issue.
33. Having regard to the decision of Irvine J. in the Wright case, where the plaintiff failed in three out of four allegations of negligence, and where there was only 20% of the time spent dealing with the issue on which the plaintiff was successful; yet she recovered 65% of her costs, and having regard to the decision in Naylor, where the plaintiff failed on the undue influence point which consisted of 50% of his case; yet he was awarded 75% of his costs, and having regard to the fact that no additional witnesses were necessitated by the temporary wire issue in this case and that the length of the trial was only marginally prolonged by an investigation of that issue, I consider it just that the plaintiff should recover 80% of her costs in this case.