Gabriele Shaw (suing as the personal representative of the estate of William Ewan (Deceased)) v Medtronic Corevalve LLC (a company incorporated in the USA) and Others
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Lavender |
| Judgment Date | 05 July 2017 |
| Neutral Citation | [2017] EWHC 1646 (QB) |
| Court | Queen's Bench Division |
| Date | 05 July 2017 |
| Docket Number | Case No: HQ15C05279 |
[2017] EWHC 1646 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Lavender
Case No: HQ15C05279
David Berkley QC (instructed by Pearson Solicitors and Financial Advisers LLP) for the Claimant
Toby Riley-Smith QC (instructed by CMS Cameron McKenna LLP) for the First, Third and Fourth Defendants
Hearing date: 19 May 2017
(1) Introduction
Subject only to the possibility of an appeal, these proceedings are now at an end:
(1) On 20 January 2017 I set aside the service of the Claim Form on the First and Third Defendants out of the jurisdiction.
(2) On 20 January and 19 May 2017 I ordered that the Particulars of Claim was struck out insofar as it related to the Second and Fourth Defendants.
(3) In March 2017 the Claimant served notice of discontinuance on the Fifth Defendant.
On 19 May 2017 I ordered the Claimant to pay the costs of all five defendants. I directed the parties to provide written submissions on the appropriate basis of assessment of costs. In those submissions, the Defendants argued for the indemnity basis and the Claimant argued for the standard basis. In this judgment, I give my reasons for my decision, which is that the costs should be assessed on the standard basis.
(2) Relevant Factors
The parties relied on a number of matters, which I consider in turn.
(2)(a) Earlier Proceedings
The Claimant was involved in a number of proceedings which arose out of her late father's death: the inquest, which took place in January 2011; the application for judicial review, which was determined in February 2013 at first instance and in February 2014 on appeal; and the First Action, which resulted in judgment in her favour in July 2015 and an assessment of damages in October 2015.
The Claimant says that in none of those proceedings did she bring a claim or application which was held to be without merit or an abuse of the process of the Court, although that claim does not sit easily with paragraph 44 of Judge Platts' judgment in the First Action, which I quoted in paragraph 27(2) of the First Judgment.
The Claimant says that it was in the context of the First Action that she obtained disclosure of the documents which led her to commence the present action. These included the investigation protocol disclosed in February 2015.
(2)(b) Pre-Action Protocol
The Defendants rely on the fact that the Claimant did not follow the pre-action protocol. The Claimant says as follows:
(1) She wrote letters to Medtronic before April 2015 (but she did not write a pre-action protocol letter to any of the Defendants).
(2) In April 2015 she obtained an order for non-party disclosure in the First Action, but Medtronic did not comply with this (although I note that in his skeleton argument for the hearing on 12 January 2017 Mr Berkley said that "The Fourth Defendant … was an interested party in the Inquest and were represented by the Defendants' current Solicitors and provided the non-party disclosure as well as the evidence of Dr Dunham regarding CE marking.")
(3) The Claim Form in this action was issued on 21 December 2015, less than 2 months after the assessment of damages in the First Action on 28...
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