Doctor Andre Oberholster v Ms Jayne Little
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 06 October 2020 |
| Neutral Citation | [2020] EWHC 2635 (QB) |
| Date | 06 October 2020 |
| Docket Number | Case No: QA-2020-000036 |
| Court | Queen's Bench Division |
[2020] EWHC 2635 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Freedman
Case No: QA-2020-000036
Mr Robin Dunne Counsel on behalf of the Appellant/Eighth Defendant (instructed by Browne Jacobson LLP)
Mr Hugh Rimmer Counsel on behalf of the Claimant/First Respondent (instructed by Devonshires Solicitors LLP)
Miss Isabel McArdle Counsel on behalf of the Second Defendant (instructed by Keoghs LLP)
Approved Judgment
I Introduction
This is an appeal against an order made on 14 January 2020 by HH Judge Roberts (“the Judge”) in the Central London County Court.
The underlying claim relates to elective ophthalmic surgery (refractive lens exchange). The Claimant (“C”) contracted with the optometrist Optical Express (“D2”) to undertake the surgery. The surgery was carried out by the Eighth Defendant (“D8”), an ophthalmic surgeon, engaged by D2.
D2 was sued with related Optical Express companies who were included due to uncertainty as to which company had contracted with C. They were all jointly represented and, following D2's settlement of the claim, the claims against the other Optical Express companies were discontinued without any orders for costs.
C alleged not that the operation had been performed negligently, but that prior to the operation there was a negligent failure to obtain informed consent for the ophthalmic surgery due to a failure to discuss risks/adverse outcomes and misrepresenting risks. The process for consent involved initial consultations with optometrists and sales' people and provision of a consent form by D2 for C to read, the claimant alleged. It was also alleged that at the hospital before she had the operation, she was asked to initial a consent form. Further, it was alleged that 10 minutes before surgery was performed, C met D8 who told her that everything would be fine and she was not to worry: see Particulars of Claim para. 7. The Defence of D8 was that he reviewed C's records before he saw her to ensure that she had been properly assessed and counselled. He does not recall any issue about her consent form. He does not recall any questions being asked by C: see D8 Defence para. 4a.
D2 and D8 both denied liability:
(i) D2 denied liability on the basis that the material risks had been discussed by Optometrists and other staff with C prior to surgery or were contained in the consent form: see Defence of D2 paras. 7–9. It also pleaded that it was D8 who carried out the surgery and that he was a self-employed ophthalmic surgeon. D2 stated that it was the duty of D8 to ensure that C had fully consented prior to surgery commencing including that she understood the meaning of the technical terms in the consent form, the nature and purpose of the procedure and the risks and complications described in the form: see Defence of D2 para. 43, 44, 45, 48, 51 and 52.
(ii) D8 denied liability on the basis that he was aware of the patient pathway adopted by D2, he had reviewed C's records which indicated she had consented. D8's case was that he had satisfied himself that C understood the consent form and had been appropriately counselled before signing it.
Trial was due to commence on 26 July 2019. An offer was made by C on 20 June 2019 which was “an offer to all defendants in the sum of £105,000 in full and final settlement of our clients claim net of any payments due to the CRU; plus payment of her legal costs, to be assessed if not agreed” (original emphasis). That offer was accepted by D2 alone on 1 July 2019.
Following settlement, by agreement, the claims against the other “Optical Express” defendant companies were discontinued without any order as to costs. No such agreement was reached between C and D8, and a number of applications related to this issue came before the court on 14 January 2020:
(i) C's application 24 May 2019:
To amend her budget. Made while proceedings were ongoing, to be heard on the first day of trial (had it not been superseded by settlement).
(ii) C's application 22 July 2019:
For the costs between C and D8 to be determined by the court.
(iii) D8's application 24 July 2019:
For D8's costs of defending the claim to be paid by C or D2.
(iv) D8's application 05 December 2019:
To strike out the claim against D8 and for C to pay D8's costs of the action.
Although there was no settlement between C and D8, C did not intend to seek further damages against D8, and the only outstanding issue was costs. The strike out applications were on the basis of D8's submission that it was an abuse of process to continue the claim against D8, and that C ought to have discontinued her claim against D8. Had C discontinued, she would have had to persuade the Court of a good reason to depart from the presumption that D8 should recover its costs: see CPR 38.6 and Judgment paras.11–12. C said that there was no duty to discontinue, and indeed C was entitled to resolve the question of costs before having the claim dismissed. The Judge ruled that there was no abuse of process in C seeking to resolve costs against D8. She was not obliged to discontinue.
II The Order Being Appealed
The refusal of the Judge to strike out C's claim against D8 is not appealed. Applications (ii) and (iii) were determined against D8, who was ordered to pay C's costs of proceeding against them, and application (i) was ordered to be determined at the time of the assessment of those costs.
D8 appeals the outcome of (ii) and (iii) and the order that he pay the costs of C proceeding against him. D8 seeks that this order be substituted with an order that C pay D8's costs of defending the action and then seeks to recover them from D2 as part of C's costs (a Bullock order); alternatively, an order requiring D2 to pay D8's costs (a Sanderson order); alternatively no order for costs between C and D8.
The appeal came before the Court with permission on paper by a Judge who said among other things that the matter had been settled between C and the other Defendants without D8's consent and where D8 continued to deny liability, and that it was arguable that this was an unjust result in circumstances where D8 had not had the opportunity to contest the claim at trial.
III The judgment of the Judge
In concluding his judgment against D8, the Judge said the following:
“[18(3)] The claims against the Second Defendant and the Eighth Defendant were inextricably bound up. In my judgment the claim could not succeed against the Second Defendant unless it succeeded against the Eighth Defendant. The Eighth Defendant was responsible for the consent process. As Mr Rimmer succinctly put the matter at paragraph 15 b of his skeleton argument,
“The claims are inextricably linked. Indeed, it is difficult to see how the two could not stand or fall together. The expert evidence confirms that ultimate responsibility for consent lies with the surgeon, D8. The majority of that process was delegated to staff of Optical Express or its associated companies. D8's defence makes clear his reliance on the delegated process, the forms and the records of the same. If that process was negligent, however, D8 is equally responsible; Even if the activity can be delegated the responsibility cannot.”
[19] In my judgment, having regard to the overriding objective in Part 1 and the Court's discretion as to costs in Part 44, I find that it is just and proportionate that the Eighth Defendant pays the Claimant's reasonable costs. The Claimant has succeeded on her claim, which was justifiably brought jointly against Defendants 1 to 7 and the Eighth Defendant. As was cogently pointed out by Miss McArdle on behalf of Defendants 1 to 7, that leaves the Eighth Defendant with the option of pursuing Part 20 proceedings (there is still a year of the limitation period remaining) against the Second Defendant if it is its case that it should only pay either none of the costs or a percentage of the costs. So the Eighth Defendant is not left without a remedy in respect of costs if it so chooses.”
It is important to understand the process that was before the Judge. First, D8 contended that the claim should be struck out because it had no real prospect of success and/or it was an abuse of process. As noted above, the Judge rejected the strike-out application, and there is no appeal against that. It did not follow from the fact that C had achieved satisfaction in respect of his claim that C had no continuing claim for costs against D8. The costs which D2 had agreed to pay were the costs incurred as between C and D2. Leaving aside complications about common costs of D2 and D8, there were costs as between C and D8 which were separate from the costs between C and D2.
A question which was explored on appeal was whether the acceptance by D2 of the Part 36 offer meant that D2 accepted a liability to pay C's costs of suing D8. However, this did not take matters further. First, the point had not been relied on before the Judge by D8. Second, it did not form a part of the extensive grounds of appeal. Thirdly, it did not exclude a finding that D8 was liable to a costs order in favour of C whether the order against D2 would or would not include the costs against D8. Fourthly, without deciding the matter, there was reason to doubt a proposition that the costs order against D2 would include all of the costs against all defendants whether common costs or not: see Haynes v Department for...
To continue reading
Request your trial