Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR. JUSTICE LAVENDER
Between :
GABRIELE SHAW (suing as the personal representative of the estate of WILLIAM EWAN (deceased)) | Claimant |
- and - | |
(1) MEDTRONIC COREVALVE LLC (a company incorporated in the USA) (2) JEAN CLAUDE LABORDE (3) MEDTRONIC INC (a company incorporated in the USA) (4) MEDTRONIC LIMITED (5) MEDTRONIC PLC | Defendants |
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
JUDGMENT
Mr. Justice Lavender:
Introduction
Subject only to the possibility of an appeal, these proceedings are now at an end:
On 20 January 2017 I set aside the service of the Claim Form on the First and Third Defendants out of the jurisdiction.
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.
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.
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:
She wrote letters to Medtronic before April 2015 (but she did not write a pre-action protocol letter to any of the Defendants).
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.”)
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 October 2015.
Facing limitation issues, the Claimant had no option but to issue the Claim Form protectively.
I do not accept that the Claimant was excused from following the pre-action protocol. The Claimant had always known that it was a Corevalve valve which was used in the operation. According to her written submissions, the Claimant attached importance to the investigation protocol, which was disclosed in February 2015, but the Claim Form was not issued until 10 months later.
The Claimant’s failure to follow the pre-action protocol is not a determinative factor, but it is a relevant factor.
(2)(c) The Nature of the Claims
The mere fact that claims have been struck out or held to be unsustainable is, in itself, not a sufficient reason for ordering indemnity costs. Nor is the fact that a claimant has sought to raise novel points of law. But four factors of the present case are unusual. As I have held:
No cause of action was pleaded against the Second Claimant.
The Fifth Defendant did not even exist until 12 January 2014.
The Third, Fourth and Fifth Defendants had no involvement with the operation in September 2007. They were not the manufacturers, producers or suppliers of the Valve and they only became involved when the First Defendant was acquired by the Medtronic group in 2009. (As to this latter point, it is also relevant to note that, as I have held, the order permitting service of the Claim Form out of the jurisdiction was obtained on the basis of a misrepresentation that the Third Defendant was the successor in title to the First Defendant.)
The Particulars of Claim referred to the successful outcome of the First Action, but failed to address the defence of satisfaction to which this gave rise.
The Defendants also allege that, by her amendment application, the Claimant made unwarranted allegations of fraud. I say nothing about that, because I did not deal with the merits of those allegations.
(2)(d) The Conduct of the Actions
The amendment application was made late. It was issued on 14 March 2017, at a time when the hearing before me was listed for 17 March 2017. It was a late response to a strike-out application which had been issued by the Second Defendant on 21 October 2016.
There is force in the Defendant’s submission that this was characteristic of the conduct of this action. For example, the notice of discontinuance was not served until March 2017, although the flaw in the Claimant’s case against the Fifth Defendant had been pointed out in correspondence in October 2016.
This conduct is not sufficient in itself to merit an indemnity costs order, but it is a relevant factor. Moreover, there are examples going the other way. It was only on 18 May 2017 that the Defendants agreed to the Claimant’s proposal that there should be no order as to the costs of the Claimant’s disclosure application.
(2)(e) The Defendants’ Offer to Settle
The parties held without prejudice settlement discussions in June 2016. The Claimant tells me that the Defendants offered her £25,000 on that occasion. On 20 December 2016 the Defendants made a written offer of £40,000. Each offer was inclusive of costs and was to be in full and final settlement of all claims.
These were not Part 36 offers and, significantly, would have included settlement of the claims which the Claimant indicated by her amendment application that she wishes to pursue against the Second Defendant and which I have not dealt with on their merits.
Conclusion
Looking at all of these factors in the round, I consider that this case is close to being one in which I should order indemnity costs, but that the appropriate order in all the circumstances is that costs should be assessed on the standard basis.