Introduction

Crumlish v Health Service Executive ([2023] IEHC 202) is a pivotal judgment delivered by the High Court of Ireland on April 25, 2023. The case revolves around Catriona Crumlish (the Plaintiff) who alleged that the Health Service Executive (HSE) (the Defendant) negligently failed to diagnose her breast cancer in 2017. This alleged negligence, she contended, led to more extensive treatment and a reduced life expectancy. A central issue in the case was whether a 15mm tumor existed in Ms. Crumlish's right breast in May 2017, which was fundamental to her claim of negligent misdiagnosis.

Summary of the Judgment

The High Court ultimately dismissed Ms. Crumlish's claim, ruling in favor of the Health Service Executive. Ms. Justice Mary Rose Gearty determined that the Plaintiff failed to provide sufficient evidence to establish the existence of a discernible 15mm tumor in May 2017. Consequently, the treatment administered at that time was deemed irrelevant to her subsequent health outcomes in October 2017.

Regarding costs, although the Plaintiff requested that no order be made, the Court reaffirmed the default position that "costs follow the event." This means that the losing party is generally responsible for their own legal expenses and, in some cases, those of the winning party. The Plaintiff's argument to depart from this rule was rejected as the Court found no exceptional circumstances warranting such a departure.

Analysis

Precedents Cited

The Plaintiff invoked the precedent set by Hanrahan v. Waterstone and others ([2021] IEHC 274). In Hanrahan, a medical expert's significant factual error led the defendant to only seek half of the costs, acknowledging the mistake. The court in Hanrahan decided against making a no-costs order, emphasizing that only deliberate or egregious conduct by the defendant would justify such an award.

However, in Crumlish v Health Service Executive, the Court found the circumstances markedly different. There was no deliberate or significant error by the Defendant. The Plaintiff's inability to predict the Defendant's argument about tumor discernibility was not a result of any misconduct but rather a matter of evidentiary insufficiency.

Legal Reasoning

The Court's legal reasoning centered on the principles outlined in Section 169 of the Legal Services Regulation Act 2015, which governs the discretionary power to depart from the default costs rule. The Court examined several factors, including:

• The nature and circumstances of the case.
• The conduct of the parties before and during the proceedings.
• The reasonableness of raising, pursuing, or contesting issues in the case.
• Whether any party exaggerated their claim.

Applying these criteria, the Court concluded that there was no evidence of conduct by the Defendant that would warrant departing from the standard costs rule. The Plaintiff's expert witness failed to adequately address credible defense arguments, particularly concerning the calculation and applicability of tumor doubling time, but this did not rise to the level of egregiousness required to alter the costs outcome.

Impact

This judgment reinforces the established "costs follow the event" doctrine, especially in medical negligence cases involving state bodies. It serves as a cautionary tale for plaintiffs to ensure robust and comprehensive evidence is presented, particularly when scientific and medical expertise is pivotal to their claims. For defendants, especially large state entities, the decision underscores the protection afforded by default costs rules, minimizing the financial risk associated with defending litigation unless exceptional circumstances prevail.

Furthermore, the case highlights the critical importance of expert testimony in medical litigation and the need for experts to thoroughly anticipate and address potential defense arguments. The judgment may encourage more meticulous preparation and cross-examination strategies in future cases.

Complex Concepts Simplified

Costs Follow the Event

This is a legal principle wherein the losing party in a lawsuit is typically required to pay the legal costs of the winning party. It aims to deter unfounded litigation and ensure fairness by assigning financial responsibility based on the outcome.

Doubling Time

In medical terms, doubling time refers to the period it takes for a tumor to double in size. This metric is crucial in cancer diagnosis and treatment planning as it helps estimate the growth rate and potential spread of the cancer.

Section 169 of the Legal Services Regulation Act 2015

This section provides courts with the discretion to depart from the standard costs rules under specific circumstances. Factors influencing this discretion include the conduct of the parties and the particularities of the case.

Conclusion

The Crumlish v Health Service Executive judgment reinforces the judiciary's commitment to the established costs rules, emphasizing fairness and discouraging speculative litigation. By upholding the "costs follow the event" principle, the Court ensures that parties entering litigation bear their own expenses unless exceptional conditions are met. This decision highlights the necessity for plaintiffs to present well-substantiated claims and for experts to anticipate and robustly address potential defenses. In the broader legal context, the judgment serves as a pivotal reference point for future medical negligence cases, shaping litigation strategies and cost considerations.