Marcus v Medway Primary Care Trust and Another
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division,Lord Justice Jackson,Lord Justice Tomlinson |
| Judgment Date | 29 June 2011 |
| Neutral Citation | [2011] EWCA Civ 750 |
| Docket Number | Case No: A2/2010/2090 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 June 2011 |
[2011] EWCA Civ 750
[2010] EWHC 2061 (QB)
President of The Queen's Bench Division
Lord Justice Jackson
and
Lord Justice Tomlinson
Case No: A2/2010/2090
HQ08X01154
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ANDREW EDIS QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Alex Hutton (instructed by Barlow Lyde and Gilbert; Berryman Lace Mawer) for the Appellants
Mr Guy Mansfield QC and Ms Sarah Lambert (instructed by Gadsby Wicks) for the Respondent
Hearing date: 5th May 2011
Introduction
Awards of costs in litigation are peculiarly fact sensitive, and this court will not disturb a trial judge's costs decision unless it was wrong in principle or otherwise plainly erroneous. In the present appeal from the costs decision of 5 th August 2010 of andrew Edis QC, sitting as a deputy High Court Judge, the claimant had failed entirely on the only main issue in the action and had recovered a tiny fraction only of the amount he claimed on a part of the claim which had scarcely featured as an issue at all; yet the deputy judge awarded him 50% of his costs of the entire action. The appellant defendants maintain that this was manifestly unjust and wrong, and that they should have recovered all or a substantial proportion of their costs because the claim for practical purposes failed.
The deputy judge's costs judgment may be found at [2010] EWHC 2061 (QB) and may be referred to for details which this judgment need not contain. The deputy judge's liability judgment of 22 nd July 2010, which is not appealed, may be found at [2010] EWHC 1888 (QB).
Facts
The respondent, Sebastian Marcus, was a young man aged 31 in the first half of 2005, when he contracted a very unusual condition in his left lower leg which resulted in its amputation below the knee on 20 th June 2005. This became necessary because the arteries in his left lower leg became blocked with embolisms deriving from elsewhere. This caused very painful ischaemia in the foot, which resulted in the death of the tissue. The claim against the first defendant essentially was that Dr Ruth Thom, a General Practitioner employed by the first defendants, whom the claimant consulted on 6 th April 2005, diagnosed ischaemia but negligently failed to take appropriate steps to see that it was treated; and that the second defendant, a locum General Practitioner, negligently failed to diagnose ischaemia on any of the occasions on 14 th, 21 st and 28 th April 2005 when he saw the respondent. When the respondent was admitted to Medway Maritime Hospital on 12 th May 2005, it was too late to save his leg. His case was that, if each of the doctors had not been negligent, timely appropriate treatment would have saved his leg. He quantified his claim at £731,255 plus general damages. The appropriate quantum of the claim was agreed at £525,000 shortly before the liability trial. In short, the claim was all about the defendants' alleged responsibility for the leg amputation.
The second defendant admitted breach of duty in his defence, which was the first practical opportunity of doing so, there having been no pre-action protocol letter. This was not the respondent's fault, since much time had been spent in obtaining medical notes and tracing the second defendant, so that the limitation period was about to expire. However that may be, neither defendant had an earlier opportunity to admit breach or to take appropriate steps to protect themselves from an adverse costs award. The second defendant's defence denied that the breach of duty had caused the respondent's loss. It was specifically pleaded that, if the respondent had been referred for thrombectomy or embolectomy on 14 th April 2005, this would inevitably have failed because the arterial blockage had been in place too long to avoid amputation.
The first defendants' defence denied breach of duty, contending that there was no sufficient indication compelling a diagnosis of critical limb ischaemia on 6 th April 2005 and asserting that Dr Thom had on examination felt a weak left malleolus pulse. In due course a witness statement of Dr Thom was exchanged which contained her assertion that she had felt this weak pulse on that day. But about 2 days before the liability trial and shortly after a meeting of vascular experts, the first defendants changed their position by admitting breach of duty. Dr Thom was not called to give evidence, but her witness statement was available for the respondent to use as hearsay evidence.
Mr Stephen Brearley, consultant general and vascular surgeon, was the second defendant's vascular expert. It was he who expressed the opinion that, even if the respondent had been referred to hospital after first seeing his General Practitioner with foot pain on 24 th March 2005, he would already have had blocked arteries for three weeks and neither thrombolysis nor embolectomy would have been at all likely to succeed. Even if any of the doctors who saw the respondent before his admission to hospital negligently failed to recognise that his symptoms were the result of blocked arteries, the blockages were so well established when they saw him, and so far distal, that the situation was irremediable and below knee amputation of his leg was already inevitable. Mr Brearley noted that Dr Thom, when she saw the respondent on 6 th April 2005, believed she could feel a week posterior tibial pulse (at the ankle), but the claimant simply could not have had the symptoms he did have at that stage (and had had for over a month previously), if he had had patent arteries down to the ankle level. Mr Brearley wrote that it is well known that practitioners who are not vascular specialists quite frequently believe that they can feel peripheral pulses when clinical and arteriographic evidence shows that those pulses could not be present. Mr Brearley referred to a paper "Peripheral pulse palpation: an unreliable physical sign" which he, with others, published in the Annals of the Royal College of Surgeons of England 1992 Vol. 74 page 167.
The other two vascular surgery experts were Mr Jack Collin for the respondent, and Professor Charles McCollum for the first defendants. The three of them made a joint statement. This records that Professor McCollum agreed with Mr Brearley that the weak pulse which Dr Thom recorded on 6 th April 2005 was unreliable. Mr Collin believed that there was no reason to doubt the observation of Dr Thom that there was a weak malleolus pulse. On the critical causation issue, the statement records that Professor McCollum and Mr Brearley were of the opinion that neither thrombolysis nor thrombectomy/embolectomy would have had any chance of success unless offered within 2–3 weeks of the onset of symptoms and that even then the likelihood of success would have been low. They agreed that the small arteries in the claimant's left foot were occluded by mid-March 2005 and that there was no prospect that any available treatment could have restored perfusion to this foot such that amputation could have been avoided on 6 th April 2005 or any later date. Mr Collin considered that occlusion of the popliteal artery probably occurred about three weeks before angiography on 13 th May 2005 and the treatment to restore perfusion would have been successful if it had been given in early May 2005. This was the essence of the contest on causation which the judge, accepting the opinions of Mr Brearley and Professor McCollum and rejecting that of Mr Collin, decided against the respondent. This being the central and eventually only issue in the case, the main claim failed entirely.
There had, however, been breaches of duty for which, as an afterthought, the claimant's counsel claimed modest damage for the additional time during which the respondent had suffered pain by reason of the ischaemia and before the amputation. There was a pleaded general unspecific claim for pain and suffering. The deputy judge ruled that this covered this small claim, and there is no appeal against that ruling. There was a written question to the experts capable of covering the point, which they had not answered in writing. We are told that evidence covered the matter in passing and that the claimant's counsel first raised the matter in his closing address. It was scarcely part of the claim as conducted, but the deputy judge found that it succeeded and awarded the respondent £2,000 damages. Thus the respondent's main (and essentially only) claim, on which virtually all the costs had been spent, failed and the respondent recovered about 0.25% of the amount of his claim. I regard it as forensic hyperbole to suggest, as Mr Mansfield QC did, that this recovery nevertheless constituted vindication for the claimant. The defendants had admitted breaches of duty – one later than the other. But that and £2,000 would have been scant consolation for a respondent whose only real claim was for the amputation of his lower left leg.
Rules about costs
Orders for costs should be made in accordance with the relevant provisions of the Civil Procedure Rules. These relevantly include that the court has a discretion as to whether costs are payable by one party to another and as to the amount of those costs – rule 44.3 (1). If the court decides to make an order about costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order – rule 44.3 (2). It is thus necessary for the...
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