Witness Statements – A Word of Warning!

Published 24 May 2018

In the very recent case of Duncan Harrop v Brighton & Sussex University Hospitals NHS Trust [2018] EWHC 1063 (QB) Mrs Justice Lambert handed down an important clinical negligence judgment with significant costs consequences for the Defendant Trust. 

Despite success at trial, the Defendant's witness statements were found to omit important detail which was found unreasonable. As a result the Defendant was denied recoverability of a significant proportion of its costs. The case highlights the importance to review all evidence at each stage of a case and consider carefully whether it requires further detail, amendment or investigation. 

The facts

The Claimant sought damages due to alleged failure to arrange cardiology review following the discovery of an abnormal communication between the chambers of his heart. He suffered a stroke in October 2012 and it was his case that had he been adequately reviewed, he would have been advised upon and elected to undergo surgical closure and the stroke would have been avoided. 

The trial commenced on 12 March 2018. On day three the Claimant discontinued his action.  A dispute regarding the rightful payment of the Defendant's costs followed.

The cost dispute

As the case was brought prior to the introduction of qualified one way costs shifting (QOCS) in April 2013, the starting point was CPR 38.6(1) which provides that "Unless the court orders otherwise, a Claimant who discontinues is liable for the costs which a Defendant incurred."

The Claimant argued that this should not apply as new evidence had emerged from one of the Defendant's witnesses during cross-examination which substantially altered the Claimant's prospects of successfully arguing his case. That if this detail had been included in the clinician's original witness statement that the case would never have reached trial. The Defendant resisted this argument and maintained that the normal order for costs should apply. Suggesting that whilst the Claimant's argument was 'ingenious', that it was merely a smokescreen to avoid the inevitable costs consequences of a trial which was doomed to fail from the outset.

The Judgment

Mrs Justice Lambert concluded that the evidence which emerged at trial amounted to a change of circumstances. It had a direct bearing upon the Claimant's case and its effect was to shut down the claim on factual causation. Mrs Justice Lambert found that any ambiguity in the Claimant's case (arising from the Particulars of Claim) was dispelled by the time of service of expert evidence. That following service of this report, it was incumbent upon the Defendant to review the claim. The Defendant should have ensured that the witness was adequately proofed and the Judge found that, salient details were omitted. The failure to set out the full story was unreasonable and it was noted that no explanation for the absence of this evidence was provided by the Defendant at any stage.

For these reasons, Mrs Justice Lambert concluded that the default position that the Claimant should bear the costs should be displaced. It was ordered that the Claimant should bear the costs in the usual way but only up to the date of service of the expert report and that thereafter each party should bear its own costs.

Lessons to be Learned

It is not clear from the Judgment whether the omission of facts within the witness statement was tactical or a genuine oversight. However, this case is a stark reminder that if such a tactic is adopted, or if salient facts are omitted by oversight, the cost consequences may be significant. It is important to make sure that all witnesses are properly proofed and the witness statement covers all relevant issues. Furthermore that evidence in a case must be reviewed periodically and following each step in the disclosure process. To consider whether new issues have arisen and whether further evidence is required. We have a team of experts in clinical negligence who can advise and support you through such evidential issues. For more information please contact Rachel Thompson.