“Despite our obvious disappointment for the client, we still achieved a remarkable result. It’s not every day you will see a judge award full costs in this manner. Credit goes to our team, who fought the case all the way.” Olivia Mayhew, Trainee Solicitor, Employers’ Liability

The Case

The case revolves around our client, a care worker, who allegedly suffered a back injury when helping a resident into her bed. She didn’t believe the bed was appropriate for the resident, which subsequently caused her the injury.

The Trial

At trial the defendant argued the bed was in fact appropriate for use. They stated risk assessments had been undertaken, and alleged the injury had more likely been caused by a slip in the shower which they maintained our client had disclosed to them in a meeting with care home staff.

Unfortunately, we were unsuccessful in proving breach of duty. Yet the below shines a light on the complexity of the case, the defendant’s conduct and their failure to comply with their pre- and post-action duty of disclosure and ultimately how we managed to win costs.

Missing Documents

Representing our client was our in-house barrister,Mr Cronie, when the Judge handed down her judgment in favour of the defendant, Mr Cronie quickly drew the court’s attention to the defendant’s poor conduct and asked the court to depart from the normal costs position. This was because in cross examination two of the defendant’s witnesses, made it clear that there were a vast number of documents that could have been provided that weren’t. The witness’s response to each query regarding why these documents were not provided in evidence was simply; “that their solicitor did not ask for them”. Their statements contained various unsupported allegations, since these documents were not presented as evidence, rendering most of their statements redundant. These documents included risk assessments, inspections, detailed care plans of the service user, the client’s HR records and handwritten notes of a meeting that the defendant heavily relied on.

The Minutes to the Meeting

As previously mentioned, a significant part of the case relied on the minutes of a meeting that allegedly took place a few months post-accident between our client and care home staff. According to the notes from this meeting, our client reported that her injury occurred because of a slip in the shower and not the accident at work. This opened the door for accusations that our client was making fraudulent allegations. We had doubts regarding the accuracy of the information contained in these minutes, yet we had very limited evidence to disprove the contents.

During cross-examination, it was revealed that the minutes of this meeting were not typed up until the solicitor requested them to be, therefore we had no proof of the date and type that these minutes were taken. Although the defendant witnesses claimed to still have the original handwritten minutes, these were not presented as evidence.

Failure to Disclose Evidence

A pre-action disclosure application was made, requesting the risk assessments and care plans for the resident our client was assisting at the time of the injury. We sought documentation covering the six months prior to the accident and the six months following it. Unfortunately, these documents were never disclosed, despite a court order compelling the defendant to do so. The defendant barrister contended that they had supplied a one page summary of the requested documents, albeit late.

The Judge’s Verdict

Our team made submissions that had these documents been produced, and they contained the information that the defendant witnesses were alleging they did, then it is entirely possible we would have closed the case pre-action and not proceeded to trial, thereby not incurring costs.

The judge was not impressed with the behaviour of defendant solicitor. She noted that there was a clear failure on the part of the defendant to disclose documents that would either help or hinder the defendant’s case and noted that there is an ongoing duty of disclosure.

Accordingly, it was the court’s opinion that full costs should be awarded to us.

However, the defence argued that the legal disbursements (payments made by us on behalf of the client, such as expert witnesses and court fees) should not be paid, only costs, however Ross noted that costs and disbursements are inseparable, and we should be awarded the full statement of costs. Fortunately, the judge agreed, stating that the sanction given ought to deal with defendant’s solicitors conduct and it was an all or nothing approach to fixed costs.

Full Costs Paid

On conclusion of the hearing, we were awarded over £8,000 in costs. Reflecting on the case Olivia Mayhew said: “We were, of course, very disappointed for the client. The actions of the defendant’s solicitors in withholding these documents had a major impact on how we approached the case. It was an interesting conclusion regarding costs and full praise goes to Mr Cronie for his submissions in court and our team for strongly arguing our client’s position”.