As slips, trips and falls cases go, Nicole Chapman’s experience in the Accident and Emergency department at Tameside Hospital should have been a straightforward personal injury claim.  Ms Chapman alleged that she slipped on a leaflet on a hospital floor.  The claim clearly related to the Hospital Trust’s duties under the Occupiers Liability Act 1957 to take reasonable steps to ensure visitors are reasonably safe.  The key initial questions were therefore:

1. Did the accident happen?  and, if so
2. Did the trust have strong enough systems in place to minimise the risk of such accidents?

The pre-action protocol (PAP) for personal injury cases applied, so the Claimant’s solicitors sent a Letter of Claim.  Not unusually, in response the Trust (through the NHS Litigation Authority) denied liability and put the Claimant to proof.  In line with the PAP, the Defendant should at that stage have provided: “documents in their possession which are material to the issues between the parties, and which would be likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings” (para 6.5).  The Defendant stated that it had no documents to disclose.  The Defendant having (apparently) fulfilled its disclosure obligations, the Claimant decided to start proceedings.  The decision to pursue the claim was the natural one because, in such a case, especially where the defendant is a large organisation, a claimant would expect the defendant’s disclosure to include details of the systems in place to ensure the safety of visitors.  In the face of there being, by implication, no such systems, the Claimant’s solicitors would have determined that the claim was worth pursuing, especially given the evidential burden upon the Defendant to show that it had taken reasonable care (Ward v Tesco Stores Ltd [1976] 1 WLR 810).

The claim was therefore issued and a defence subsequently filed.  However, the defence stated that risk assessments were in place, that contract cleaners cleaned the floors to an agreed schedule and that staff were trained to spot and report hazards.  Once the Court made an order for standard disclosure, it became clear that the Defendant had supporting documentary evidence which it planned to use in the proceedings.  These documents were then (using the court’s words) “drip-fed” to the Claimant over two months.  The last document disclosed was the cleaning contractor’s rota which, the Defendant argued, showed not only that good systems were in place but that they were being operated at the time of the alleged accident.

Following that last disclosure, the Claimant decided to discontinue the claim, but also to pursue the Defendant for costs on the grounds that it had failed to follow the requirements of the PAP.  In essence, the Claimant argued that the Defendant’s response to disclosure had undermined the overriding objective by encouraging her to start litigation she would not have otherwise pursued.  The Court noted that this was not a failure to address disclosure (which would have been likely to spur the Claimant to seek an order for pre-action disclosure) but inaccurate disclosure.

The Court, describing the Defendant’s conduct as “entirely unacceptable”, held that the breach must inevitably lead to a costs sanction.  The Judge then had to decide what that sanction should be.   Normally, costs sanctions would follow the indemnity principle, however, this case was governed by a fixed costs regime.  The Court of Appeal had recently considered this issue in the context of a claimant who at trial had beaten a Part 36 offer she had made (Broadhurst & Another v Tan & Another [2016] EWCA Civ 94).  There, the court had noted the conflict between the CPR Part 45 fixed cost scales and the sanctions described in CPR 36.14.  The court noted that: “… fixed costs and assessed costs are conceptually different. Fixed costs are awarded whether or not they were incurred, and whether or not they represent reasonable or proportionate compensation for the effort actually expended. On the other hand, assessed costs reflect the work actually done” (at para. 30).  It resolved the question in favour of the Part 36 sanctions, largely as a matter of logic, noting that the CPR aims to encourage actions that keep cases out of court.

Although not specifically referring to Broadhurst & Another v Tan, the Judge in Chapman v Tameside Hospital NHS Foundation Trust took the same view.  He concluded that the failure to disclose had resulted in unnecessary litigation and unnecessary costs for the Claimant.  The Judge said that he did not suggest that the failure to accurately disclose was intended to rack up the Claimant’s legal costs, but held, given the overriding objective, that a costs sanction based on the indemnity principle was justified.

The next question for the Court was how to quantify the sanction.  The Judge decided to award a figure which was the difference between the Claimant’s base costs if she had succeeded with the claim and the scale figure if the case had not proceeded after proper disclosure, together with the medical expert’s costs. 

However, this was not the only sanction applied in the matter.  Having reached his conclusion in favour of the Claimant, the Judge then turned to the question of costs for the application.  The Judge decided to award these to the Claimant, but as they had not prepared a costs schedule, they were to bear the costs of any assessment proceedings.

Taking a step back, in Chapman v Tameside Hospital NHS Foundation Trust there was an accident that may or may not have happened; fault that was never attributed; three sets of solicitors (the NHS Litigation Authority having latterly instructed Weightmans); two counsel; one substantive hearing; a possible costs hearing; and a four-figure costs bill to the taxpayer.  As such, this case serves as a good reminder that the main role of civil litigators is to avoid civil litigation.  Bypassing the relevant PAP is a quick way to lose, even when you think you have won!