England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/02/15

Mr Justice Hickinbottom :

Introduction

1. On 16 February 2015, I handed down judgment on liability in this claim, finding both Defendants liable to the Claimant in the following proportions as between themselves: the First Defendant Dr Mills 30%, and the Second Defendant the Football Club 70%. The parties asked for time to make submissions on consequential matters, which I heard on 18 February 2015, when I refused the application of the Football Club and Third Parties (Dr Cowie and Dr Curtin, doctors who were employed by the Football Club at the relevant time) for permission to appeal against the apportionment. I also heard submissions with regard to costs, in respect of which I reserved judgment. This is the reserved costs judgment.
2. It will be helpful to set out the relevant dramatis personae. The Claimant is a young man who, whilst playing professional football for the Football Club at a match in Belgium on 4 August 2006, suffered a cardiac arrest and consequent severe brain damage. Dr Mills is a cardiologist, who had screened the Claimant at the behest of the Football Club. He is a member of the Medical Defence Union ("the MDU") which, whilst not an insurer as such, supports him in this claim by way of an indemnity against damages etc. Dr Cowie and Dr Curtin were specialist sports physicians employed by the Football Club. The Football Club is vicariously liable for their conduct during the course of working at the Club; but they are also each a member of the Medical Protection Society ("the MPS"), another defence organisation, which supports them in this claim. The arrangements are such that the MPS has indemnified the Football Club in respect of any negligence found against Dr Cowie or Dr Curtin, including costs; and. within these proceedings, the Football Club has brought a Part 20 claim against them to pass on any liability to the Claimant that might find against it as a result of the acts and omissions of either of those two doctors. Therefore, on the basis of my judgment, the MDU will pick up 30% of the liability I found as against Dr Mills; and the MPS the 70% I found as against Dr Cowie and Dr Curtin. Two other employees of the Football Club feature: Dr Nick Krasner (another sports physician), and Rory Brown (a physiotherapist)

Costs: The Common Ground

3. In respect of costs, as between the Claimant and the Defendants, the position is largely agreed. The Claimant succeeded against both Defendants, and the usual rule generally applies: he is entitled to his costs from each.
4. Those would normally be on the standard basis, but, on 26 November 2014, the Claimant made a Part 36 offer to Dr Mills that he would accept 95% of his damages. That offer was open for acceptance until 17 December 2014. The offer was not accepted by Dr Mills, nor was it beaten at trial: indeed, on the third day of the trial (5 February 2015), Dr Mills conceded full liability – although keeping open a claim as against the Football Club for a proportion of it. Therefore, from 18 December 2014, the Claimant is entitled to his costs against Dr Mills on an indemnity basis. Mr Westcott QC for Dr Mills does not suggest otherwise.
5. Generally, the liability of the Defendants for the Claimant's costs will be in the substantive liability proportions I have determined, i.e. Dr Mills 30% and the Football Club 70% .
6. It would be wrong to impose costs on the Football Club from 18 December 2014 on an indemnity basis in circumstances in which that basis applies only because of Dr Mills' failure to accept a Part 36 offer directed only at him. From 18 December 2014 to 5 February 2015, in respect of the 70% of costs for which the Football Club is otherwise liable, the difference in the Claimant's costs on a standard and indemnity basis should be paid by Dr Mills.
7. So much is agreed. However, there are three areas of dispute between the parties.

Costs Issue I

8. During the course of the proceedings, the Claimant made four claims against the Football Club that involved allegations in respect of conduct by employees of the Club other than Dr Cowie and Dr Curtin, claims which the Claimant did not ultimately pursue.
9. The factual background to these claims is, briefly, as follows.

i) There was no defibrillator at the football match at which the Claimant had the cardiac arrest. From the outset, the Claimant claimed that the Football Club was negligent in this respect. The allegations of negligence were pleaded thus in paragraph 8 of the original Particulars of Claim, dated 13 September 2012:

"C6. Failing to ensure that a defibrillator was available for immediate use at the football match on 4 August 2006.

C7. Failing to ascertain, prior to the commencement of that football match, whether a defibrillator was available for immediate use and, upon establishing that a defibrillator was not available for immediate use, causing or permitting the match to commence or the Claimant to participate in the match."

The allegation in paragraph C6 was abandoned on 6 June 2014. The costs of that amendment to the Claimant's case were expressly made costs in the case (see paragraphs 19 and 20 of the Order of 6 June 2014). The allegation in paragraph C7 was abandoned on 25 November 2014, paragraph 5 of the Order of that day providing that there was to be no order for costs on the withdrawal of that allegation.

ii) As a result of allegations first made by Dr Mills, on 3 February 2014 the Claimant obtained permission to amend his claim to include allegations concerning the conduct of Rory Brown at the 4 August 2006 football match, by the addition of paragraphs 8A and 8B to the Particulars of Claim. However, those allegations were not in the event pursued by Dr Mills, and had been abandoned by both Dr Mills and the Claimant by 6 June 2014. Again, the costs of the amendments to include and then abandon the claim were expressly made costs in the case (see paragraph 10 of the Order of 3 February 2014, and paragraph 20 of the Order of 6 June 2014).

iii) The Claimant alleged that Dr Krasner had been negligent in completing an assessment form for the Claimant in November 2005 which indicated that he had had a cardiac clinical review, either because Dr Krasner did not ascertain that such a review had been carried out or because he erroneously believed that it had. That allegation was made in an amendment to the Particulars of Claim to insert a paragraph C9 on 4 February 2014, and abandoned on 25 November 2014. Paragraph 4 of the Order of 25 November 2014 provided that that there was to be no order for costs on the withdrawal of the allegations.

iv) Finally, the allegation of negligence in paragraph C1 – essentially focused on the failure to arrange a clinical review – was amended on 4 February 2014 expressly to make clear that "this allegation is not confirmed to acts/omissions of the [Football Club's] servant or agent [Dr Cowie]". That was not formally abandoned until 25 January 2015, when the Claimant confirmed that he restricted his claim to allegation concerning the conduct of Dr Cowie and Dr Curtin.

10. Save for (iv), the costs of the various amendments (including those abandoning the claims) were therefore dealt with by the court when dealing with the case management of the claim; so it is superficially surprising that the costs of those pleading changes have been raised again now. However, the Football Club contend, not that it should have an order that the Claimant and/or Dr Mills pay its costs of dealing with those abandoned claims, but that the court should order the whole of the Football Club's costs in the claim be paid by the Claimant and/or Dr Mills – because, but for those claims involving the conduct of individuals other than Drs Cowie and Curtin, the Club would not have had to play any part in the proceedings at all. It could have handed the conduct of its defence over to the MPS which is behind Drs Cowie and Curtin.
11. I am unpersuaded by that submission. As can be seen from the above, the various Masters who dealt with the case management of this claim considered and made orders in respect of the costs of the relevant amendments, including amendments to add claims and to remove them. Claim (iv) above, in which no express order for costs has been made, does not significantly add weight to Mr de Navarro's argument; because, once (i), (ii) and (iii) had gone, there was no substantial claim against the Football Club that was reliant upon anything other than the conduct of Dr Cowie and Dr Curtin. Dr Cowie, as Head of the Medical Service Department, accepted that she was generally responsible for what went on in the department, including its systems.
12. Mr de Navarro submitted that this application is concerned, not with the costs thrown away (that were covered by those orders), but with the consequences of the Claimant maintaining any claim against the Club that involved the conduct of any of its employees other than Dr Cowie and Dr Curtin. Those consequences (he said) were that separate teams had to be maintained to conduct the litigation for the Football Club and the Third Party doctors respectively. Although there was no conflict of interest in respect of the claims that were made on the basis of their conduct, whilst there were any claims against the Club that were made on a different basis, there was scope for a conflict.
13. However, I have considered the Third Party pleadings with care and, having done so, I accept the submission of Mr Featherby, that such scope was always more hypothetical than real. The court having previously made the costs orders that it did in relation to these matters, I am quite sure that it would be neither just nor appropriate for either the Claimant or Dr Mills to bear any of the Football Club's costs. In relation to the specific claims, I consider the costs orders already made are sufficient to deal with those; and, in the circumstances of this case, in my view the other parties cannot properly be made liable for costs which, in essence, result from the (rather unusual) arrangements between the Football Club and its own employees. In considering the costs orders as a whole, I consider it is just and appropriate simply to make no further orders for costs in respect of these claims.
14. Otherwise, in the usual way, the Football Club must bear its own costs.

Costs Issue II

15. With respect to liability for the Claimant's costs as between the Defendants, the usual rule would be that they would bear these in the proportions they bear liability, i.e. 30%/70%. However, following a round table meeting on 21 November 2015, the Claimant served his Part 36 offer letter on the First Defendant, and Dr Mills changed Counsel to Mr Westcott QC. Following advice from him, Dr Mills through solicitors sent two letters to the Football Club's solicitors, both marked "Without Prejudice save as to Costs", although not Part 36 offers in form or automatic consequences. However, they were offer which I can, and should, take into account in considering where costs should lie (see CPR Part 44.4(3)(a), and French v Groupama Insurance Company Limited [2011] EWCA Civ 1119).
16. The first letter read as follows:

"In the event that both Defendants in this matter are found to be liable, our client offers to accept a 50/50 split on apportionment with your client in respect of the Claimant's damages and costs. Please let us know if this offer is agreed.

We reserve the right to refer to this letter on the issue of costs in due course."

17. The second letter read as follows:

"We refer to our letter of today concerning contribution from your client. We consider it sensible in the interests of saving costs that the Defendants should advise the Claimant that, although each blames the other, one way or another there ought to have been discussions involving a Cardiologist, the Club, the Claimant and his family regarding the cardiac investigations which had been undertaken and our client's comments on these from July, August and September 2005. We do not see how this proposition can be sensibly be denied."

18. Mr Westcott submitted that the Football Club acted unreasonably in not accepting these offers. Although there is no specific evidence filed with regard to what would have happened had the Football Club accepted the offers, on instructions, Mr Westcott said this. Had the offers been accepted, Dr Mills would himself have accepted the Claimant's Part 36 offer on the basis that the Claimant agreed to compensation being paid in the form of a lump sum. Given that Dr Mills could not evidence a proper ability to secure periodical payments, the Claimant would have been bound to have done so. In those circumstances, Dr Mills would have played no further part in the proceedings, and the litigation would have continued only to determine whether the Football Club was liable to the Claimant at all. If it had been found liable, then the 50%/50% agreement between the Defendants would have come into play: but, without such a compromise, Dr Mills would have had to have remained in the litigation to protect his position on apportionment, and one main purpose of these offers was to avoid the costs of Dr Mills playing any further substantive part in the litigation. If the Football Club had not been found liable to the Claimant at all, then Dr Mills would have been 100% liable for the sums due to the Claimant, i.e. pursuant to the Part 36 offer and acceptance, 95% of the Claimant's damages (although, in the light of the Football Club's concession by accepting the offer in the second letter, Mr Westcott considered a finding of some liability on the part of the Football Club would have been inevitable). Therefore, Mr Westcott seeks an order that the Football Club should pay Dr Mills' costs of the claim from 7 January 2015, on the standard basis if not agreed.
19. Those submissions have some force. On the basis of the findings in my judgment, the Club was unreasonable in not accepting the offers put to it, if not by 6 January, by, say, 13 January 2015. However, had the Football Club done so, the amount of costs that would have been saved is highly speculative. As I have described, on instructions, Mr Westcott said that the Claimant's Part 36 offer would have been accepted by Dr Mills, and all of his costs from that acceptance would have been saved; but, in fact, he continued to contest that he even owed a duty of care to the Claimant until after he had given evidence in the trial itself. It is possible – although, I accept, unlikely – that, in the event, no costs would have been saved.
20. As I have emphasised, the offers by Dr Mills to the Football Club were not Part 36 offers; but nevertheless I have to take the Football Club's (unreasonable) failure to accept them into account when considering costs orders. Having done so – and not without anxious consideration – I have concluded that, in the context of all the circumstances of the case (including the uncertainties to which I have referred) and the costs orders looked at as a whole, the just and appropriate course would be not to reflect the Football Club's failure to accept the offers in any adverse costs order.

Costs Issue III

21. Mr Westcott submitted that any liability of Dr Mills for the Claimant's costs should end as at 11am on 5 February 2015, when he announced in open court that Dr Mills conceded liability. Mr Featherby accepted that in principle, so long as the costs of that day incurred before 11am (e.g. Counsel's refresher fees, fees to experts) would be fall the right side of that watershed. Costs such as solicitors' hourly fees for time spent after 11 am that day, he accepts, would fall, for him, the wrong side.
22. By the end of the costs hearing, there was nothing of substance in dispute here. I shall order that Dr Mills' liability for the Claimant's costs shall cease as at 11am on 5 February 2015, but, for the avoidance of doubt, that costs of that day incurred prior to that time (e.g. Counsel's refresher fees and expert fees for that day) will fall on the side of the line that means Dr Mills is liable for them.

Conclusion

23. For the above reasons, I shall make the following Order in relation to the 16 February 2015 judgment and consequential matters. In respect of costs, in my judgment, these orders do justice as between the various parties in this claim.

1. There be judgment for the Claimant against the First Defendant and the Second Defendants for damages to be assessed.

2. The Claimant's damages, interest and costs be apportioned as between the Defendants (and without prejudice to the Claimant's right to enforce the totality of the judgment against either Defendant or both Defendants) so that, as between them, the First Defendant contribute 30% and the Second Defendants contribute 70% of the judgment sum.

3. The action be listed before a Master for a case management conference on the first open date with a time estimate of one and a half hours.

4. The Defendants are to make an interim payment of £50,000 to the Claimant on account of his damages (to be paid to the Claimant's solicitors) within 28 days.

5. With regard to costs the following orders will apply.

6. In respect of the costs of the Claimant's claims against the conduct of Dr Krasner and Rory Brown, and in respect of the non-availability of a defibrillator at the football match on 4 August 2006, there shall be no further orders as to costs.

7. The Defendants shall pay the Claimant's costs of liability issues to 11am on Thursday 5 February 2015, to be subject, if not agreed, to a detailed assessment on the standard basis save, in relation to the Claimant's costs against the First Defendant since 17 December 2014, such costs be assessed on the indemnity basis. Such costs shall include costs for 5 February 2015 incurred by the Claimant prior to 11am, such as Counsel's refresher fees and experts' fees for that day.

8. With regard to the costs in paragraph 7, as between the Defendants:

8.1 The First Defendant shall pay (i) 30% of the costs that may be awarded to the Claimant against the Defendants in respect of the whole period and (ii) of the remaining 70% of those costs, the difference between the costs payable by the Second Defendant under paragraph 8.2(ii) below and indemnity costs for the period from 18 December 2014 to 11am on 5 February 2015.

8.2 The Second Defendant shall pay (i) 70% of the costs that may be awarded to the Claimant against the Defendants in respect of the whole period and (ii) 70% of the costs that would have been awarded against the Defendants on the standard basis for the period from 18 December 2014 to 11am on 5 February 2015, and, for that purpose, so far as required, it is directed that there be a detailed assessment of those costs on the standard basis.

9. The Second Defendants shall pay the Claimant's and the First Defendant's costs of the issue of liability after 11 am on 5 February 2015 to be assessed on the standard basis, if not agreed. For the avoidance of doubt, the First Defendant shall have no liability for the Claimant's costs of the issue of liability after 11am on 5 February 2015.

10. The Third Parties shall pay the Second Defendant's costs of defending the main action and of the Part 20 proceedings, to be assessed on the standard basis if not agreed.

11. Other than as provided in this order and previous court orders, the First Defendant and the Third Parties shall each bear their own costs.

12. The Defendants shall make an interim payment of £200,000 to the Claimant's solicitors on account of his costs within 28 days.

13. As between the Defendants, the interim payments referred to in paragraphs 4 and 11 will be paid 30% by the First Defendant and 70% by the Second Defendant.

14. The Third Parties shall indemnify the Second Defendant in respect of such damages and interest and costs that the Second Defendant is ordered to pay to the Claimant and/or any other party under this order and/or in respect of the assessment of damages.

15. The application by the Second Defendant and Third Parties for permission to appeal the order in respect of apportionment of liability between the Defendants be refused.