Ibiyinka Macaulay v (1) Dr Abdul Karim (2) Croydon Health Services NHS Trust

Janice Gardner and Claire Henaghan of Russell-Cooke Solicitors and Counsel Shaman Kapoor of 39 Essex Chambers were instructed by the Claimant in consequential costs proceedings following a long-running clinical negligence claim. Judgment was handed down last week, on 25 May 2022, with Senior Costs Judge Gordon-Saker finding in the Claimant’s favour.

By way of background to the substantive proceedings, a clinical negligence claim was brought by the Claimant, Mr Ibiyinka Macaulay, against Dr Abdul Karim, a General Practitioner (the ‘First Defendant’), and Croydon Health Services NHS Trust (the ‘Second Defendant’) arising out of a delay in diagnosis and treatment of a necrotising fasciitis infection. The Claimant suffered septic shock as a result, leading to the amputation of his left lower leg, part of his right foot, all of his toes, and the fingers and thumb on his right hand. The Claimant pursued his claim with Legal Aid funding.

A 10 day trial in the High Court before Mr Justice Foskett took place in May 2017 on the issues of breach of duty and causation. The Second Defendant was found to be negligent and liable to compensate the Claimant for his injuries (the amount of compensation to be agreed between the parties or decided by a quantum trial). Whilst the Claimant succeeded against the First Defendant in respect of causation, the Claimant did not succeed against the First Defendant in respect of breach of duty and therefore the First Defendant was found not to be negligent. The Claimant was ordered by Mr Justice Foskett to pay the First Defendant’s costs on the following basis:

‘The Claimant do pay the First Defendant’s costs in respect of breach of duty, such costs to be subject to a detailed assessment if not agreed. These costs are to be payable from any damages awarded to the Claimant at the conclusion of his action against the Second Defendant but are not to be enforced without permission of the Court. The First Defendant is not entitled to his costs arising out of the causation argument.’

Under the same Order of Mr Justice Foskett, the Second Defendant was to make an interim payment on account of damages to the Claimant.

The Claimant went on to compromise his claim against the Second Defendant by way of a Tomlin Order in January 2021.

The First Defendant lodged an Application in October 2021 seeking to recover the costs which were subject to Mr Justice Foskett’s Order.

Following a preliminary issues hearing in April 2022, in his Judgment, Senior Costs Judge Gordon-Saker found the following:

  • Claimants in personal injury claims can have the benefit of both Legal Aid costs protection and qualified one-way costs shifting (QOCS) protection at the same time.
  • An agreement to pay a sum under a Schedule to a Tomlin Order is not an order for damages and interest in respect of Section 11 Access to Justice Act 1999 (Legal Aid), as was already recognised in respect of QOCS in Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654. Such a sum is therefore not available for a successful defendant’s costs.
  • An order for a payment of a sum on account of damages is not an ‘order for damages and interest’ for the purposes of CPR 44.14.

In consequence, the payment on account of damages the Claimant had received in 2017 and the damages the Claimant received under the Tomlin Order of January 2021 were not available for payment of the First Defendant’s costs.

The Claimant successfully defended the First Defendant’s Application for costs and was entitled to his costs of doing so. The First Defendant is to bear his own costs of the substantive proceedings and the consequential costs proceedings.

The full Judgment can be found here.