A review of the decision in Harrap v Brighton & Sussex University Hospitals NHS Trust [2018] EWHC 1063 (QB)

The recent decision in Harrap v Brighton & Sussex University Hospitals NHS Trust [2018] EWHC  1063 (QB) contains salient lessons to ensure witness evidence is fully pleaded and sets out the “full story”.

The matter was a clinical negligence claim brought as a result of the Defendant’s alleged failure to arrange a cardiology review following the discovery that he had a patent foramen ovale (an abnormal communication between the chambers of the heart). The Claimant, who suffered a stroke in October 2012, had undergone transoesophageal echocardiogram (“TOE”) and asserted that had the results been reviewed by a cardiologist, he would have been advised upon, and chosen to undergo, surgical closure of his patent foramen ovale which it was asserted would have led to the stroke being avoided.

The claim progressed with the parties obtaining medical evidence and exchanging witness statements. The matter came to trial in March 2018 when, on day three of the trial, Claimant’s Counsel was cross examining the Defendant’s witness of fact, Professor Hildick Smith, who advised for the first time that he had actually seen the TOE results and requested the Claimant’s further medical records to consider the position further. Given the timescales involved from the investigations being undertaken to the Claimant having the stroke, the evidence fatally undermined the Claimant’s case and the claim was discontinued.

The Defendant sought their costs in accordance with CPR38.6 (1) which provides that

Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant, against whom the claimant discontinues, incurred on or before the date on which the notice of discontinuance was served on the defendant“.

The Claimant asserted that the Defendant’s failure to elicit the information from Professor Hildick Smith when preparing his statement was misconduct sufficient to depart from the standard rule. The Defendant asserted that the claim was bound to fail in any event and the standard rule should apply. The parties agreed that the authorities were set out by Judge Waksman QC in Teasdale v HSBC Bank Plc [2010] EWHC 612 as approved by Moore Bick LJ in Erica Brookes v HSBS Bank [2011] EWCA Civ 354:

“i) When a claimant discontinues the proceedings, there is a presumption by reason of CPR 38.6 that the defendant should recover his costs; the burden is on the claimant to show a good reason for departing from that position;

  1. ii) the fact that the claimant would or might well have succeeded at trial is not itself a sufficient reason for doing so;

iii) however if it is plain that the claim would have failed, that is an additional factor in favour of applying the presumption;

  1. iv) the mere fact that the claimant’s decision to discontinue may have been motivated by practical, pragmatic or financial reasons as opposed to a lack of confidence in the merits of the case will not suffice to displace the presumption

  2. v) if the claimant is to succeed in displacing the presumption he will usually need to show a change of circumstances to which he himself has not contributed;

  3. vi) however, no change in circumstances is likely to suffice unless it has been brought about by some form of unreasonable conduct on the part of the defendant which in all the circumstances provides a good reason for departing from the rule.”

Mrs. Justice Lambert agreed with the Claimant, denying that the claim was bound to fail at the point it had been discontinued and that based on the specific of the case the Defendant’s failure to elicit the information from Professor Hildick Smith was unreasonable and that the Defendant had failed to provide any reason for the omission at any stage. The Court therefore departed from the standard rule and ordered the Claimant to pay the Defendant’s costs up to December 2017 with the parties to bear their own costs thereafter.


David Burke