Contribution Costs: To what extent should a Part 20 Defendant be liable for the costs of a Part 20 Claimant
In the matter of Healey v McGrath & Ramsay Health Care Uk Operations Limited [2024] EWHC 1360 (KB), the Court considered an application by the Second Defendant for a contribution towards costs and damages from the First Defendant. The Court noted that the success of applications of this nature are largely case specific. Relevant factors to consider are the level of fault, the causative contribution and the party’s role in the proceedings.
Background
The costs were incurred in relation to a clinical negligence claim. Mr Healey was diagnosed with colon cancer and opted to undergo surgery privately under the care of The First Defendant. He unfortunately suffered a post-surgery anastomosis leak which resulted in sepsis, from which he died 9 days after his surgery. The Claimant issued proceedings against the Defendants and the claim was compromised by the Second Defendant by way of a Tomlin Order dated 6 February 2023. The Second Defendant agreed to pay £1.2 million in damages, plus reasonable costs which were subsequently agreed in the sum of £417,500. Prior to settlement of the claim, the Second Defendant had served a contribution notice on the First Defendant seeking an indemnity or such contribution as reasonable. The trial of the contribution claim took place on 17 April 2024 (which the First Defendant failed to attend) and judgment was handed down on 7 June 2024.
Legal Principles
Judge Dias KC referred to the jurisdiction provided by section 51 of the Senior Courts Act 1981 and the discretion provided under CPR Part 44.2. He also considered the application of the Civil Liability (Contribution) Act 1978 and the further guidance provided by the Court of Appeal in Downs v Chappell [1997] WLR 426, which notes that the extent of the party’s fault and the degree to which it contributed to the damage should be key considerations.
Fault and Causative Contribution
The judge considered the relevant medical evidence within the main proceedings. He noted that, whilst there was criticism of the Second Defendant’s nursing staff, it was the First Defendant’s responsibility to devise a treatment plan and therefore the primary fault lay with the First Defendant. The court concluded that he was responsible for 75% of the blame, with the remaining 25% lying with the Second Defendant.
Effect on Costs
On the basis that the First Defendant was found to be 75% at fault, the Court held that he should pay 75% of the agreed damages and 75% of the Claimant’s costs as agreed.
The Second Defendant submitted that the First Defendant should be liable for 75% of their costs defending the claim on the same basis. The court disagreed with this approach and noted that the issue of the costs incurred by the Second Defendant was not quite as straightforward. The details of Mouchel Ltd. v Van Oord (UK) Ltd (No.2) [2011] PNLR 26 were considered. The contribution to breaches of duty in this matter were limited and, as such, it was not considered appropriate to make an order for contribution however Ramsey J indicated there would be the opportunity to do so in the right circumstances.
The facts of the current matter were considered. The First Defendant had been involved from the start as the surgeon in charge of Mr Healey’s treatment and the care provided by the Second Defendant’s nursing staff was very much insubordinate to this. While the Second Defendant was realistic enough to compromise the claim, the First Defendant was not and it was necessary for contribution proceedings to be brought. The First Defendant’s defence was in fact fundamentally flawed on the basis of the evidence and he failed to engage actively in both the main proceedings and the contribution proceedings; conduct which the Court considered to be unsatisfactory, unrealistic and uncooperative.
As a result, the Court concluded that the First Defendant should pay one third of the Second Defendant's costs of defending the claim and 100% of the contribution proceedings.
Commentary
Despite the primary fault lying with the First Defendant, the Second Defendant took a proactive role in these proceedings which ultimately benefited it from a costs perspective. This case demonstrates that, regardless of fault, Defendants should take an active role and compromise the claim where sensible and possible. It also illustrates that, in the case of multiple Defendants, it is possible to still be liable for costs and damages despite taking a robust stance on liability. Therefore where a Defendant is not cooperating, a claim for contribution should be considered.
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