Kerry Underwood


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In Harrap v Brighton and Sussex University Hospitals NHS Trust [2018] EWHC 1063 (QB) (9 May 2018)

the Queen’s Bench Division of the High Court held that the Defendant’s failure properly to deal with witness evidence was unreasonable conduct justifying departure from the usual rule that a discontinuing Claimant is liable for the Defendant’s costs (CPR 38.6(1)).

This was a clinical negligence action where the Claimant discontinued after cross examination of one of the Defendant’s witnesses at trial elicited new evidence which was fatal to the Claimant’s case on causation.

The evidence given by the defence witness in cross examination had not been in his Witness Statement.

The judge found that the new evidence amounted to a change of circumstances and was due to the unreasonable conduct of the Defendant and constituted a good reason to depart from the general rule in relation to costs on discontinuance as set out by the Court of Appeal in

Brookes v HSBC Bank [2011] EWCA Civ 354.

The Defendant had unreasonably failed to set out the full story in witness evidence and no explanation had been provided and it must have been obvious that such evidence was highly relevant following the service of the Claimant’s expert’s report.

There had been a failure to take a proper Witness Statement from the expert.

The High Court held that the appropriate order was that the Claimant bear the costs up to the date of service of the expert report and that thereafter there be no order for costs.


CPR 38.6(1) 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 key authorities are:

Teasdale v HSBC Bank Plc [2010] EWHC 612,

as approved by the Court of Appeal in one of the Teasdale appeals in


Erica Brookes v HSBC Bank [2011] EWCA Civ 354,

 where the Court of Appeal said:



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.”


A discontinuing Claimant has a high hurdle to clear to displace the normal rule.

In Nelson’s Yard Management Co v Eziefula [2013] EWCA Civ 235,

the Court of Appeal stressed that higher threshold for avoiding the usual costs consequences of discontinuance and stated that once there was to be no trial, it was not the function of the court considering costs to decide whether or not the claim would have succeeded.


Written by kerryunderwood

May 25, 2018 at 8:23 am

Posted in Uncategorized

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