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Two Defendants and a Part 20 Contribution
Claim in a Clinical Negligence Case – a Look
at Healey v McGrath and Ramsay Healthcare UK
Operations Ltd [2024] EWHC 1360 (KB)
Vanessa Cashman, barrister at 12 King’s Bench Walk considers the judgment of the Part 20
claim brought by D2 against D1 for a contribution towards the claim it settled with C.
D1 (also the Part 20 Defendant) was the surgeon. D2
was the body responsible for a private hospital. C was
the widow of Mr Simon Healey who died following a
right hemicolectomy at the hospital. The operation
was performed by D1 and was required as treatment
for cancer. There was a post-operative leak at the
anastomosis and Mr Healey died of sepsis.
death. The judge asked himself whether it was
appropriate to exercise his discretion under s 51 of
the Senior Courts Act 1981 and CPR 44.2 to order a
contribution in costs in respect of the main claim.
In reviewing various factors, the judge considered
again the responsibility for the death. He repeated
that D1 was the surgeon in charge, that D2’s nurses
were subordinate to him and that his failures were the
substantial contributory cause of the death. He also
considered that D2 had been “realistic enough” to
compromise the claim but D1 did not. His defence
was fundamentally flawed. His conduct in the litigation was unsatisfactory, unrealistic and uncooperative.
It was too simplistic to say that D2 was 100% responsible for its own negligence so should bear all its own
costs of defending but the 75% sought was excessive
and disproportionate.
D1 was negligent in the provision of post-operative
care, when Mr Healey’s marked deterioration was not
acted on and there was a consequent delay in diagnosing and treating the leak. D2 was negligent in that
the nurses, employed by the hospital, should have
asked for more frequent medical reviews and should
have carried out more frequent, and then continuous,
observations.
The hospital settled the claim and reserved its
position on a contribution claim.
The judge ordered D1 to pay 1/3 of D2’s costs of
defending the main claim.
D1’s solicitors came off the record before C’s claim was
settled. He continued to represent himself but failed
to comply with directions for the contribution claim
and failed to attend the trial. The trial proceeded in
his absence. The two issues for the judge were (1)
apportionment and (2) costs.
D2’s costs of bringing the contribution claim
D2 had been successful in establishing a contribution
from D1. D2 was awarded its costs of bringing the
contribution claim.
D1 had submitted a witness statement but had not
obtained any expert evidence.
Commentary
It is not clear why D1’s solicitors ceased acting but
there may remain a question as to whether D1 is either
appropriately insured or adequately funded such that
he will be able to pay the contributions ordered. C is
protected from this situation by the agreement with D2
to pay the entirety of damages and costs. D2 thus bears
the risk of not achieving financial satisfaction.
The judge considered that D1’s failures were very
serious and he was responsible for more than 50% of
the fault but not 100% of it. The nursing failures were
considered to be “dwarfed in comparison to the
failures of the consultant surgeon” (paras 26-27).
He further found that the failure to arrange diagnostic imaging to investigate a leak was the direct cause of
Mr Healey’s death. The crucial delay was predominantly attributable to D1’s failures and his breach of
duty was more causative than the nursing breaches.
He apportioned responsibility at 75% to D1 and 25%
to D2.
The considerations on whether D1 should contribute
to another negligent defendant’s costs of defending a
claim which has been successful show just how wide
the discretion is (and how difficult any decision would
be to appeal). It is plain that D1’s litigation conduct
did not do him any favours in this regard.
It is assumed that C’s original case against D1 and D2
was that both are jointly and severally liable for the entirety of the damage i.e. if C succeeded against either
of them she would receive 100% of the damages. It is
not known whether either D raised the question of
gross negligence, or arguments about breaking the
chain of causation. However, it seems probable that
this was the most proportionate way of dealing with
C’s costs
It followed that D1 would pay 75% of C’s costs of the
claim.
D2’s costs of defending the main claim
D2 sought an order that D1 should pay 75% of D2’s
costs in defending the main claim, despite the fact that
it too was negligent and caused/contributed to the
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