CoA overturns HC Refusal to Award Defendant his Costs against Unsuccessful Plaintiff in Medical Negligence Claim

The CoA recently heard an appeal on the issue of costs from a Defendant in a medical negligence claim. The Defendant had successfully defended the Plaintiff's claim and applied for his costs against the Plaintiff.

O'Carroll -v- Aras Slainte Ltd & Ors. [2020] IECA 127

I. Facts

The Plaintiff had sued four defendants for negligence in the care and treatment provided to the Plaintiff in the aftermath of an injury she sustained to her right hand when it was crushed under a heavy mirror. Cross J. dismissed the claim in an ex tempore decision. The CoA Judgment does not provide any great detail about the case itself or of the particular allegations made by the Plaintiff and simply indicates that the Plaintiff failed to establish a breach of duty on the part of any of the Defendants. In any event, the Plaintiff's claim was dismissed.

Of interest was the Trial Judge's finding that the 3rd Named Defendant (the Appellant in the CoA) was not entitled to his costs against the Plaintiff as he had made an allegation of fraud during the course of proceedings. In his view, this allegation was without basis. He considered that the court should mark its disapprobation of this unfounded allegation in some way and refused to award costs against the Plaintiff.

In this case, the Defendant had pursued a particular line of questioning during cross-examination in which it was suggested that the Plaintiff had said she was significantly disabled by her injuries and guarded her injured hand in social settings, whereas a picture posted on Facebook suggested otherwise.

At certain points, the trial Judge intervened and it appeared from the transcript that the Plaintiff was to some extent, offended by the suggestion.

The Third Named Defendant appealed the decision of the refusal to award him his costs.

II. Legal Principles

As noted by the Cross J., the general rule in relation to costs is that, ‘costs follow the event’. Order 99 of the Rules of the Superior Courts articulates this general principle, applicable both in the High Court and on appeal. Essentially, costs follow the event unless the court, for special reason, directs otherwise. This principle was confirmed by Clarke J. (as he then was) in Veolia Water U.K. plc v. Fingal County Council (No. 2) [2007] 2 I.R. 81. In that judgment, Clarke J. stated that 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 entitled to the reasonable costs of maintaining proceedings. Parties who successfully defend proceedings taken against them are prima facie entitled to the costs which they have expended in defending the action.

"The Court accepts that this case was a medical negligence action and that counsel for the appellant was entitled to conduct a robust cross-examination of the claim in negligence that was made against him. However, it observes that counsel for the appellant did not cease with his particular line of cross-examination when an explanation was given for a picture which he had introduced into evidence and which was taken from Facebook. The Court observes that this line of inquiry was also pursued, to some extent, when Mr. Colgan gave his evidence."

III. Decision

The CoA overturned the decision of the HC and made an order for costs against the Plaintiff, allowing the Defendant to recover 50% of the costs he had incurred in defending this claim. It did so on the basis that, while the Trial Judge was entitled to indicate his disapproval of the line of questioning, the ultimate refusal to award any costs to the Defendant, was disproportionate.

"I consider that the trial judge was also entitled to indicate his disapproval of the line of inquiry pursued. However, in making no order for costs in circumstances where the appellant had fully and successfully defended a claim in medical negligence, I am of the view that the trial judge’s decision was disproportionate.

To allow such an order to stand in circumstances where no allegation of fraud was actually made would, in my view, create a certain ‘chilling effect’ upon defendants who robustly cross-examine plaintiffs with a view to establishing the extent to which, if at all, a plaintiff may be overstating certain symptoms. In conducting a robust cross-examination, counsel for a defendant must, of course, be satisfied that there is some evidential basis for putting such questions to a plaintiff."

IV. Conclusion and Comment

1. The decision reaffirms the importance of Order 99 and the fact that the Veolia principles will only be applied in exceptional circumstances.
2. To a certain extent, the decision follows the recent decisions which punish an unsuccessful Defendant who makes an unwarranted allegation of fraud against a Plaintiff, such as Smith v HSE, Stokes v Dublin City Council and Doyle v O'Donovan. In these cases, the Court marked its disapproval by awarding aggravated damages (Stokes) and costs on a legal practitioner/client basis (Doyle).
3. In this case, the CoA stated there must be "some" evidential basis for putting the questions to the Plaintiff and in this case, it is arguable at least that there was "some basis". Ultimately, the High Court found that there was not.
4. The Court of Appeal found that the trial Judge was entitled entitled to indicate his disapproval of the line of inquiry pursued and did not interfere with this finding as such. But it was his decision that was disproportionate and it was the decision that was adjusted.
5. In other words, Cross J. was entitled to mark his disapproval by departing from the "costs follow the event" principle, but refusing to award any costs against the Plaintiff was disproportionate.
6. The Court of Appeal considered that a 50% reduction in costs was proportionate here. Therefore, Defendants must tread carefully even in cases where they are ultimately successful and an allegation of fraud, should only be made where there is "some evidential basis" for same.
7. It also begs an interesting question if the reverse might apply to a Plaintiff who makes an unfounded allegation against a Defendant: If the Plaintiff's claim is unsuccessful, could the Plaintiff be further punished for litigation misconduct with an award of costs against it on a legal practitioner/client basis (a reverse of Doyle v Donovan)? Or if the Plaintiff is successful, will he or she be entitled to a full costs order against the wrongly impugned Defendant? Or should that costs order be reduced to mark the Court's disapproval?