Crumlish v Health Service Executive (Approved)

Factual and Procedural Background

The Plaintiff initiated proceedings against the Defendant, a State health service body, alleging negligent failure to diagnose a cancerous tumour in the right breast in 2017. The Plaintiff claimed that this failure led to more extensive treatment and a reduced life expectancy. The central factual dispute concerned whether a 15mm tumour was identifiable in May 2017. The Court found insufficient evidence of a discernible tumour at that time, concluding that the treatment provided then was not relevant to the later diagnosis in October. The Plaintiff was unsuccessful in proving the claim and sought an order that no costs be awarded against her.

Legal Issues Presented

1. Whether the Court should depart from the default rule that costs follow the event and make no order as to costs despite the Plaintiff's failure to prove negligence.
2. Whether the Plaintiff could have reasonably anticipated and addressed the Defendant's defence regarding tumour size and growth rate during the hearing.
3. The applicability of the precedent set in Hanrahan v. Waterstone and others [2021] IEHC 274 to the costs decision in this case.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff argued that the Court should make no order as to costs because the issue on which the Defendant succeeded—the absence of a discernible tumour in May—only crystallised late in the lengthy hearing.
• The Plaintiff relied on the case of Hanrahan v. Waterstone and others, where a significant error by a medical expert justified a departure from the usual costs rule.
• The Plaintiff contended that she could not have predicted the true nature of the Defendant's defence until near the end of the hearing.

Appellee's Arguments

• The Defendant argued that the default position that costs follow the event should apply as it was successful in defending the claim.
• The Defendant submitted that the defence case, including that the lump palpated in May was a cyst and not cancer, was clearly pleaded and identifiable before the hearing.
• The Defendant highlighted that expert reports and pleadings sufficiently signposted the issues regarding tumour growth rates and the reliability of the Plaintiff’s expert’s calculations.
• The Defendant maintained that it was reasonable to expect the Plaintiff’s expert to address these arguments and that no unfair surprise arose from the late crystallisation of the defence.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by reaffirming the standard rule that costs follow the event, with exceptions being rare and requiring strong justification under Section 169 of the Legal Services Regulation Act 2015. The Court examined the pleadings, expert reports, and evidence to assess whether the Plaintiff could have reasonably anticipated the defence that the lump in May was a cyst rather than a tumour.

The Court analysed the expert evidence concerning tumour doubling times, noting that the Plaintiff's expert relied on a 1993 study with a fixed doubling time to infer the tumour size in May. The Defendant’s expert challenged this, citing more recent studies and highlighting the variability and uncertainty in tumour growth rates, including the possibility of faster growth than previously recorded.

While the Defendant’s successful argument on doubling times was more clearly articulated late in the hearing, the Court found this was a normal feature of litigation and that the Plaintiff’s expert had sufficient opportunity and information to address these points. The pleadings and reports had sufficiently signposted the issues, and no unfair surprise or procedural unfairness arose.

The Court rejected the Plaintiff’s reliance on Hanrahan, emphasizing the absence of deliberate or egregious conduct by the Defendant and the difference in factual circumstances. The Plaintiff’s failure to predict the full thrust of the defence did not amount to a reason to depart from the usual costs rule.

Finally, the Court noted the public policy underpinning medical negligence litigation and cost awards, stressing fairness to the Defendant where the Plaintiff failed to prove negligence or causation.

Holding and Implications

The Court awarded costs to the Defendant, affirming the default position that costs follow the event. The Plaintiff’s request for no order as to costs was refused.

The direct effect is that the Plaintiff must bear the costs of the Defendant’s successful defence. The Court did not establish any new precedent or depart from established principles governing costs in medical negligence cases. The decision underscores the importance of expert evidence accuracy and the foreseeability of defence arguments in litigation costs assessments.