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IN THE SUPREME COURT OF JUDICATURE QBENF 97/0098 CMS1

Royal Courts of Justice

Thursday, 12th February 1998

Before:

LORD JUSTICE HIRST

LORD JUSTICE MILLETT

LORD JUSTICE BROOKE

- - - - - - - -

BURAC OKSUZOGLU

(by Alev Ahmet his Mother and Next Friend )

Respondent

-v-

(1) STEWART KAY

(2) KENNETH LESLIE OLDERSHAW

Appellants

(Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 180 Fleet Street, London, EC4A 2HD. Telephone No: 0171-421 4040. Shorthand Writers to the Court.)

- - - - - - - -

MR. T. COGHLAN Q.C. and MISS M. O'ROURKE (instructed by Messrs Le Brasseur J Tickle) appeared on behalf of the First Appellant/First Defendant.

MR. T. COGHLAN Q.C. and MISS M. O'ROURKE (instructed by Messrs Hempsons) appeared on behalf of the Second Appellant/Second Defendant.

MR. P. ANDREWS Q.C. and MISS E. GUMBEL (instructed by Messrs Taylor Johnson Garrett) appeared on behalf of the Respondents/Plaintiffs.

- - - - - - -

J U D G M E N T

(As approved by the Court )

Crown Copyright

Lord Justice Brooke

1. Burac Oksuzoglu, the Plaintiff, is now 13 years old. He was born in this country in December 1984 of Turkish immigrant parents. His parents separated when he was three months old and he has had no contact with his father, who does not maintain him. His mother speaks little English and has had few resources on which to live and bring up Burac and his sister, who is two years older. When he was nearly five years old his right leg was amputated and disarticulated at the hip, to save him from certain death. In this action he sought damages from two general practitioners for failing to refer him to hospital earlier, which would, it was claimed, have saved his leg.

2. On this appeal we have had the benefit of the judgments of two experienced judges, Judge Rivlin QC (sitting as a deputy high court judge) and Mr Justice Douglas Brown on the facts. The former conducted a nine-day trial on issues of liability in December 1994. The latter conducted a four-day hearing on issues of quantum in December 1996. Judge Rivlin recused himself from the assessment of quantum after he had been made aware that there had been a payment into court, although he did not know the amount. He remained responsible for giving interlocutory directions, and one of the three appeals before us is a challenge by the Defendants to an order he made on 16th October 1996 granting the Plaintiff leave to re-amend his statement of claim to widen the scope of his damages claim. Another of the appeals relates to the order for costs he made when he returned to the action to determine costs issues on 11th February 1997. The third appeal relates to the quantum of damages assessed by Douglas Brown J and one aspect of the order for costs he made at the end of the assessment hearing.

3. The effect of the findings of fact made by these two judges was along these lines.

4. Ewing’s sarcoma is a rare, extremely malignant, cancerous tumour. Unless it is treated promptly, it is liable to spread quickly and is potentially fatal. When Burac was three and a half years old he started experiencing pain and discomfort in his right leg. The two defendants are busy doctors in general practice in Peckham. Burac’s mother took her son to see them from time to time from July 1988 onwards because he was suffering pain in his leg. Judge Rivlin found that the Second Defendant was negligent because he should have referred Burac to hospital following a consultation on 11th October 1988. He found that the First Defendant was negligent because he failed to refer Burac to hospital following a consultation three and a half months later, at the end of January 1989. Burac was in fact referred to hospital on 26th June 1989, and his sarcoma was first diagnosed on an X-ray taken on 17th July 1989. By this time the tumour was in an advanced condition. It did not respond favourably to treatment with chemotherapy, and the doctors at St Bartholomew’s Hospital, where he was being treated, considered that treatment with radiotherapy would have no prospect of success and might seriously prejudice the child’s growth. His right leg was therefore amputated and disarticulated at the hip on 16th November 1989. He was subsequently fitted with a prosthesis which has to be renewed as he grows.

5. Despite his findings of negligence against both Defendants Judge Rivlin found that even if the tumour had been discovered by October 1988, there would have been no difference to the course of treatment Burac had to undergo, because the tumour would by then have been so large, and Burac’s age and his relative resistance to chemotherapy were such, that amputation would have been regarded as the only safe and sensible option. He therefore directed that judgment be entered against both defendants for damages to be assessed, and that the inquiry into damages should be limited to Burac’s pain, discomfort and distress from 11th October 1988 and late January 1989 respectively. At the end of the trial on liability, over five years after Burac’s leg had been amputated, his claim in this respect appeared to relate to general damages in respect of untreated Ewing’s sarcoma and, possibly, to special damage in respect of the extra care and attendance provided by his mother and family between October 1988 and June 1989 in respect of his pain, disability and other consequential needs.

6. On the assessment of damages Douglas Brown J said that for an additional eight and a half months Burac had suffered increasing pain and disability. The pain was intermittent, but towards the end the intervals between bouts of pain became shorter, and from about March 1989 there was an increasing number of occasions when the pain was sufficiently bad for his mother to have to carry him. The pain was of increasing severity. In addition, he suffered distress and discomfort associated with enuresis, which happened more than once during the night on some occasions. The judge awarded him £3,000 under this head.

7. He also suffered from a psychiatric illness which was amenable to treatment. Douglas Brown J held that Burac would probably have had in any event a behavioural disorder brought about by the amputation itself and the associated problems any child will have when a limb is removed. He found, however, that this problem would have been relatively short-lived but for the delay in diagnosis. What had led to his condition being in December 1996 in the moderately severe category of psychiatric damage was the delay in diagnosis. His mother became a chronic depressive, because she was preoccupied with what she saw as the injustice done to her son by reason of the Defendants’ poor treatment (a view, the judge observed, she was reasonably entitled to hold until December 1994), and she communicated these concerns to her intelligent son, so that by December 1996 he was in urgent need of therapy. The judge found that with therapy the prognosis was reasonable, although there was a recognisable risk he could still have problems in adolescence and early adulthood. The award of general damages under this head was £8,000.

8. The judge held that psychiatric treatment was now essential, and that it would not have been necessary at all but for the Defendants’ negligence. The judge awarded an additional agreed figure of £1,510 for the cost of psychotherapy treatment, plus £210 for a claim for travel costs.

9. Finally, the judge awarded care costs of £1,818.07 in respect of the increasing amount of time Burac’s mother spent caring for him at night (20 hours per week from 12th October 1988 to the end of February 1989 and 25 hours per week from 1st March to 26th June 1989), together with miscellaneous other minor expenses amounting to just over £500.

10. It will be convenient to consider first the Defendants’ appeal against certain of the ingredients of the damages award. In the event, for reasons which will become apparent, Mr Coghlan QC restricted his challenge to the award of £3,000 general damages for pain and suffering during the eight and a half month period of avoidable pain between the time when the Second Defendant ought to have referred Burac to a hospital for investigation and the time when he was in fact referred, and to the award of special damages which related to this period.

11. On this aspect of the case the judge accepted the evidence of Burac’s mother and her two sisters, and the evidence of Dr Ann Kilby, a consultant paediatric oncologist, who said that the symptoms those witnesses described were typical of the symptoms caused by bone sarcomas. In her report Dr Kilby summarised the position in these terms:

“Reviewing the evidence it is clear that between October 1988 and June 1989 Burac was suffering considerable pain in his right leg, the family also noticed swelling of the right thigh. In the later months of 1988 the pain was intermittent but severe causing Burac to cry for up to an hour at a time and sometimes scream with pain. He was also limping intermittently. By the early months of 1989 Burac’s pain was increasing in frequency and severity and his limp was more noticeable. By April or May 1989 Burac was finding it very difficult to put weight on his right leg because of severe pain and was crying for long periods every day and night. Throughout the time in question, Burac was wetting the bed regularly, every night, although before his symptoms started he had been dry at night. ... Burac’s sleep was disturbed by pain and distress. He also could not easily get out of bed and walk to the toilet in the months before diagnosis.”

12. Mr Coghlan attacked the judge’s award of £3,000 general damages on the ground that it was manifestly too high, alternatively because the judge ought to have made an allowance for the fact that during the period in question he did have a leg which would already have been amputated but for the Defendants’ negligence. I reject both these arguments. The judge was in a better position than this court to assess the severity of the pain this boy was suffering, and the award for this increasingly severe pain, together with the distress and discomfort associated with the enuresis, was within the range of awards open to the judge. On the second point the judge in disagreeing with the submission made by the doctors’ counsel, said: “True it is that he had a leg but it was not much of a leg; it contained a tumour and gave him a great deal of pain.” I can find no fault in the judge’s approach.

13. On the second issue, the judge made his findings in the following terms:

“That leaves the special damages. I accept the mother’s assessment that she spends an increasing amount of time caring for Burac, mainly at night. 20 hours a week from 12th October 1988 to the end of February and 25 hours from 1st March to 26th June seem to me to be entirely reasonable estimates. The rate allowed again seems to me to be reasonable, as is the deduction of 25% from the commercial rate proposed by the Plaintiff.

However, Miss O’Rourke submits that there is no recoverable loss under this head. If the referral had been made in October, the mother during the following period would have provided in any event much more care and attendance as from about February he would have had the amputation. This submission has a superficial attraction. However, the plaintiff has to be compensated, as has his mother, for that which actually befell them for eight and a half months; and I do not take into account the possible scenario of events which never happened. The costs and the laundry costs are in my judgment recoverable in full.”

14. The evidence that Burac’s mother gave to the judge was that after her son’s leg was amputated he wet his bed most nights until about 18 months before the hearing (ie until about June 1995, when he was ten and a half). When he woke up at night he could not balance on one leg without his prosthesis, so that she had to help him go to the toilet. She also had to help him on and off with his prosthesis during the day, and help him with dressing (putting on his socks and trousers, tying up his shoe laces and so on) and undressing.

15. She said she could not remember what happened before he had his amputation, although she said that he could not go to the toilet by himself on the occasions when he had such pain that he could not put weight on his leg, and she had to help him. When he cried in the night she used to get up and go to him, but when he did not have any pain in the night there was no need for her to get up.

16. It follows from this evidence that if the Defendants had not been negligent Burac’s mother would have been even more heavily involved in his care from the time of an amputation which would, on this hypothesis, have taken place eight and a half months earlier than it did. Whether her heavy involvement would have ended eight and a half months earlier than June 1995 appears to be a matter for speculation. This matter does not appear to have been explored in evidence, and if it had, it might have turned out that the time when the boy gave up bed wetting was linked with his actual chronological age rather than the length of time which followed the amputation. In any event, the mother’s evidence seems hardly adequate to justify the judge’s findings as to the amount of extra care required up to the time of actual referral, and she understandably had difficulty in remembering what happened at that stage.

17. In my judgment, therefore, the judge was wrong in making an award for the mother’s care since if the negligence had not occurred she would have been even more heavily involved in her son’s care during the same period. I would therefore disallow the judge’s awards of £1,818 past gratuitous care, and £183.57 laundry expenses until the referral to hospital, and the interest on those special damages, since all these expenses and demands would have been incurred and made in any event if the Defendants had not been negligent and the boy’s leg had been amputated eight and a half months earlier. I see no reason why the rest of the special damages award, which amounts to £100 for attendances on a private Turkish doctor whom Burac’s mother consulted, and medication for the pain, should not stand, together with interest.

18. I turn now to the main issue we have to decide. This relates to the order for costs made by Judge Rivlin for the whole of the period from the issue of the writ on 10th June 1992 until he granted the Plaintiff leave to re-amend his Statement of Claim on 14th October 1996. For this purpose it is necessary to examine the history of the litigation rather more closely.

19. Until Dr Oldershaw was joined as a party to the action in July 1993, the Plaintiff’s solicitors were pursuing the claim against Dr Kay alone. They wrote their first letter alleging negligence against him on 24th July 1990, and the following month they commissioned the only medical report they had in their possession until the completion of the trial on liability four and a half years later. This was a two-page report by Dr Judith Kingston, an honorary consultant in paediatric oncology at St Bartholomew’s Hospital where Burac had been treated from August 1989 onwards. Most of this report was concerned with the identification and attempted treatment of the sarcoma, the subsequent amputation and the post-operative recovery. The only references to the boy’s general health and, in particular, to his psychological state before and after the operation, were in the following short passages:

"He had presented with an 18 month history of intermittent aching pain in his right leg. The pain was exacerbated by exercise and associated with a limp ...

[On admission to my unit in August 1989] his general health was good and apart from the problems with his right leg there was no other systemic upset ...

Burac made an excellent post-operative recovery and mobilised well ...

Since [March 1990] Burac has remained well with no evidence of recurrence. He has a prosthetic leg to which he has shown an excellent adaptation and he is now fully able and even able to run, Plans are being made for his school placement.”

20. There was no hint in this report of any psychiatric disturbance of any kind.

21. In the original Statement of Claim against Dr Kay, dated 15th June 1992, it was said that he had negligently failed to refer Burac in October 1988 for the necessary and appropriate X-ray investigation, and that he failed thereafter to refer him for such investigation until the end of June 1989. The only part of the short Particulars of Injury which referred to the period before the amputation read: “Untreated Ewing’s sarcoma ..” The Particulars of Loss and Expense read, so far as is relevant:

"Care and attendance provided by the Plaintiff’s mother and family. This has varied, care being provided at varying levels both before and after the amputation. The Plaintiff contends that a fair average is 4 hours per day/night.

October 1988 - June 1992

= 190 weeks x 28 x £3 per hour £15,960 and continuing at £4,369.00 p.a."

22. No medical report was served with the Statement of Claim as required by Order 18 Rule 12(1A). The Plaintiff’s solicitors appear to have decided unilaterally that they were not obliged to serve one, and they suggested to Dr Kay on 12th June 1992 that liability ought to be dealt with as a preliminary issue. When they wrote to his solicitors on this subject a fortnight later they said that they were enclosing Dr Kingston’s report (which was by now nearly two years old) without prejudice to the contention that they were not obliged to serve it. They went on to ask if the Defendant’s solicitors were agreeable to an order for a separate trial on the issues of liability and damages. They pointed out that there was clearly a considerable amount of uncertainty regarding their client’s future and that it would be some time yet before the real effects of the loss of his leg would be known in terms of prognosis/damages.

23. Dr Kay’s Defence, dated 3rd August 1992, was fully pleaded. After 5 paragraphs relating to the facts, which included an assertion that no complaint was made to him about the condition of the plaintiff’s right leg until April 1989, there was a non-admission as to the alleged pain, suffering, loss and expense pleaded (save for the admitted amputation of the leg) and an express denial of causation. Paragraph 7 of the Defence read:

"Without prejudice to the generality of the denial of causation the Defendant will contend at the trial herein that such pain, suffering, loss and expense as the Plaintiff has sustained has been entirely caused by the development of a tumour and not by any delay in diagnosis (which is in any event denied) and that amputation would in any event have resulted by reason of the Plaintiff’s age and size, the nature of the tumour, the risks of radiotherapy for the Plaintiff and the Plaintiff’s failure to respond to chemotherapy.”

24. The Particulars of Loss and Expense (and specifically those relating to care) were then expressly denied.

25. On 11th August 1992 Dr Kay’s solicitors told the Plaintiff’s solicitors that they were prepared in principle to agree to a split trial.

26. In July 1993 the Plaintiff answered a request for Further and Better Particulars of the Statement of Claim on 8th July and obtained leave to join the Second Defendant on 20th July, and the Amended Statement of Claim, which pleaded additional allegations of negligence against Dr Kay, and alleged comparable acts of negligence against Dr Oldershaw dating back to July and October 1988, was served on 23rd July. This widened the allegations of negligence against the First Defendant and included allegations of negligence against the Second Defendant, but made no material alteration to the particulars of injury, loss and expense.

27. Further and Better Particulars of the latter had been afforded a fortnight earlier, and it is necessary to set out the whole of the request and the whole of the answer:

"Request

For the avoidance of doubt and again so that the Defendant might understand the case to be met, please state whether it is hereby contended that the Plaintiff has required additional care by reason of his condition and if so, please state:

(a) the nature of such care and how it is alleged to arise out of the alleged delay in diagnosis as opposed to the fact of development of a tumour and the consequent need for treatment of such tumour;

(b) the extent of such care and all facts and matters relied upon in support of the claim that four additional hours per day are spent on care (identifying also the times during which such care is provided).

Reply

(a) It goes without saying that the Plaintiff’s loss of his right lower limb has resulted in the need for increased care. The Plaintiff’s case is that the loss of his limb was occasioned by the delayed diagnosis.

(b) In the early days, the Plaintiff’s mother had to help the Plaintiff mobilise - both before the amputation, when he was in pain and undergoing chemotherapy, and afterwards. When he was supplied with the artificial prosthesis, she had to help him put it on and take it off. He now does this on his own. In addition, because the Plaintiff does not sleep in his prosthesis, he needs help to go to the toilet during the night. The Plaintiff’s mother gets him up twice during the night. Extra care is provided from 7.30am to 9.00am; 3.30pm to 4.00pm; 7.30pm to 9pm and for about ½ hour during the night.”

28. It is quite clear that the First Defendant, who had expressly pleaded that the amputation was inevitable, was seeking to obtain particulars of the nature of the claim for care that arose out of the alleged delay in diagnosis. Mr Andrews QC very fairly conceded that it was difficult to spell out of the answer any particulars of the care necessary for an untreated sarcoma whose diagnosis was delayed.

29. On 11th October 1993 a consent order was made pursuant to Order 33 that the question or issue of the liability of the First and Second Defendants to the Plaintiff be tried as a preliminary issue before the question or issue of damages (if any). This order did not refer to causation, although it is clear from the directions for the exchange of witness statements and medical records that the parties intended the preliminary issue to cover “liability issues of negligence and causation of injury”.

30. With the benefit of hindsight it would have been very much better if this order had been more carefully drafted. In a complex medical negligence case of this type the critical issue may well be not whether the Defendants were negligent but whether their negligence caused the catastrophic injuries of which the Plaintiff complains. The leading case of Wilsher v Essex Area Health Authority [1988] AC 1074 was a case of this type, where the premature baby’s blindness might have been caused by one of seven different causes, including the fact of premature birth itself. To find the Defendants liable tout seul (which is the only inquiry the order directed) would not take matters much further forward, since all that a finding of liability in negligence would show would be that there had been negligence and some resulting loss. The real issues the Master ought to have directed were:

(1) Was the First Defendant negligent in failing to refer Burac to a hospital at any time before 26th June 1989 and if so when was the first occasion on which he was so negligent?

(2) Was the Second Defendant negligent in failing to refer Burac to a hospital at any time before 26th June 1989 and if so when was the first occasion on which he was so negligent?

(3) If the answer to question (1) and/or (2) is “yes”, did the relevant act of negligent omission cause the Plaintiff to lose his leg in the sense that it would have been saved but for the delay in diagnosis?

(4) If the answer to question (3) is “no”, did the proved negligence cause the Plaintiff some loss and damage?

31. I am not saying that in every medical negligence case the preliminary issues need to be identified with this degree of refinement, but in a case like the present, where the Plaintiff is claiming very large damages as a result of the Defendants’ negligence, and the Defendants would probably be willing to concede that their negligence, if proved, caused some minor damage (but not such as to warrant a major High Court action) difficulties are likely to occur over costs if attention is not paid to the way the preliminary issues are framed. In the present case causation (of the need to amputate) was not even mentioned as one of the preliminary issues directed to be tried, although that was the intention of the order. If the order had been framed in the way I suggest, it would have been very much easier for the Defendants to make qualified admissions which would have made any later dispute about costs much easier to resolve.

32. I return to the history. Dr Oldershaw’s interests were protected by different mutual insurers who instructed different solicitors and counsel. In his Defence, served on 14th October 1993, it was pleaded that complaints about the condition of Burac’s leg were only made to him on two occasions, in July and October 1988, and negligence was denied. His Defence adopted a similar approach to issues of damage and causation as that of the First Defendant. A request for the service of a medical report substantiating any alleged injuries which complied with Order 18 Rule 12 (1A)(a) elicited only the 1990 report of Dr Judith Kingston.

33. The order for exchange of witness statements followed by the exchange of ex parte reports four months later allowed plenty of time for both sides to reassess the merits of their case on liability and causation before that trial took place. In the event, the exchange of witness statements was delayed by delays in obtaining the medical records of the Turkish doctor who saw Burac as a private patient from time to time during the relevant period. They were eventually exchanged in early July 1994, six months later than provided for in the Master’s order. This delay led in turn to a delay in the exchange of expert reports, which were exchanged on 10th November 1994, only 26 days before the trial on issues on liability and causation was due to start. On 14th November £3,500 was paid into court on behalf of both defendants, a matter to which I will return in due course. That the real issue between the parties related to the claim that but for the Defendants’ negligence Burac’s leg might have been saved was reinforced by the contents of an exchange of correspondence “without prejudice save as to costs” between solicitors during the three weeks before the trial started. The Plaintiff’s solicitors maintained adamantly right up to the trial that an earlier referral would have saved Burac’s leg, and they spurned the contents of a very careful letter written by Dr Kay’s solicitor dated 29th November. This letter had ended in the following terms:

"We will draw this letter to the attention of the Judge at the conclusion of any trial on liability and if his findings should be:

(a) that our client was in breach of his duty to the Plaintiff only in respect of a consultation of 24th April 1989 or thereafter; and

(b) the only loss suffered by that breach of duty is additional pain and suffering until the Plaintiff was, in fact, referred to hospital;

then we will ask the Judge to award the costs of the trial on liability to our client (despite the adverse finding) and disallow any claim for costs made by your client by reason of the fact of the payment into court and the contents of this letter and our earlier letter of 16th November 1994.

For avoidance of doubt, although we believe the monies in court reflect the additional pain and suffering element due even to an 18 month delay in diagnosis, we are prepared to discuss the quantum of such a claim with you without the need to proceed to an expensive trial.

Therefore, if you proceed to trial in respect only of a claim for additional pain and suffering due only to delay in diagnosis (or if you succeed at trial on such limited basis only and Professor Craft’s evidence is preferred to that of Professor Sikora) when we have accepted that we would make payment to your client on the basis that findings at (a) and (b) might be made, we will produce this letter to the Judge on any costs application in support of our contention that a trial was unnecessary and the costs have been incurred by your refusal to discuss the same.

Given the imminence of the trial we invite your immediate consideration of this letter and ask you to re-consider with Professor Sikora whether he really maintains his views on causation in the light of Professor Craft’s knowledge and expertise in this field. We trust when you have considered the matter with Counsel and your expert you will be able to indicate that no trial against our client need proceed.”

34. On 20th December 1994 Judge Rivlin QC delivered his reserved judgment on issues of liability and causation. It is a model of clarity and reasoning, and nobody sought to challenge any of his findings. He held, as I have already said, that Dr Oldershaw was negligent in the way he acted towards Burac on 11th October 1988. In particular the judge held that the doctor should have conducted a visual examination of Burac’s leg, and he rejected his evidence that he did in fact refer Burac to the casualty department of the local hospital at the end of his visit to his surgery that day. So far as Dr Kay was concerned, the judge held that he saw Burac on an occasion towards the end of January 1989 when his attitude was very dismissive and when he did not carry out a full examination of his leg. In making this finding the judge preferred Burac’s mother’s evidence to the evidence of Dr Kay, who had made no note of any such visit and denied that it had taken place, and he held that Dr Kay was negligent in not referring Burac to hospital on that occasion.

35. The last quarter of the judgment were substantially devoted to what the judge called the remaining and very important question of causation. On this issue the Defendants called Professor Alan Craft, who is professor of paediatric oncology and acting head of the department of child health at Newcastle University. The Plaintiff called Professor Sikora, who is professor of clinical oncology at the post-graduate medical school attached to Hammersmith’s hospital. The judge said of him that he was a witness of very considerable distinction in his field which was, in the main, that of adult oncology. He described Professor Craft, on the other hand, as having unrivalled experience and eminence in this country as a paediatric oncologist with, indeed, a worldwide eminence in this field. Professor Craft was of the opinion that this tumour must have grown to a considerable size by October 1988 and that amputation of the limb would have been inevitable if the tumour had been identified then. Professor Sikora initially expressed the view that six months prior to the first X-ray examination (in July 1989) was the shortest time within which he would have been able to save the leg. By the end of his evidence he had conceded that it would probably only have been possible to save Burac’s leg if it had been X-rayed and the tumour discovered in October 1988. On this issue the judge preferred Professor Craft’s clear evidence, and in those circumstances he directed that the inquiry into damages should be limited in each case to the pain, discomfort and distress suffered by Burac as from the date of each doctor’s negligent failure to refer him to hospital. The judge reserved the costs of the trial on liability and causation until after the end of the assessment of damages, and said that he would only be willing to assess damages if both parties agreed, since he had been told there had been a payment into court (although not the amount). For completeness I should add that the Defendants made a slightly enlarged offer during the trial which lapsed very soon afterwards.

36. Following the trial on liability the Plaintiff’s solicitors started to suggest that the quantum of the Plaintiff’s damages might be greater than they could reasonably have understood from anything previously pleaded or disclosed. The first hint was given in a Notice to Admit Facts in March 1995 which suggested that Burac’s pain was very much more serious than had ever been suggested before, and that the bed wetting was a psychological side effect of the stress of illness and leg pain. This was followed by the service in August 1996 of a report by Dr Dora Black, a consultant child and adolescent psychiatrist, dated 9th January 1996, which formed the basis of Douglas Brown J’s award of £8,000 for psychiatric injury and £1,720 for future psychotherapy.

37. The matter was restored before Judge Rivlin for directions four times during 1995 and 1996. On 1st August 1995 he gave timetabling directions for the assessment of damages, which was to be conducted by Master Prebble, since the Defendants objected to him conducting it himself. On 8th November 1995 he declined a renewed invitation by the Defendants to make an order for the costs of the liability trial. On 15th January 1996 Master Prebble made a consent order directing that the assessment be made by a judge. On 30th August 1996 Judge Rivlin made a further order for directions, and on 16th October 1996 he made the first order which is challenged in these proceedings, when he granted the Plaintiff leave to re-amend the Statement of Claim to plead his damages claim in the way it was now sought to put it. He did not put the Plaintiff on any terms as to costs, and made no order as to the costs of the application.

38. The action then proceeded to the assessment before Douglas Brown J. By this time the action was really all about costs, and because of the disastrous implications to their client if things went wrong, the Plaintiff’s solicitors obtained authority to instruct leading counsel on the assessment. Although Douglas Brown J reserved the costs of the assessment to Judge Rivlin, he granted the Plaintiff a certificate for two counsel. In most ordinary circumstances this would have been an assessment fit for a Master or for a judge at a county court, since nobody was suggesting that the Plaintiff could recover more than £20,000. These circumstances were, however, the very reverse of ordinary, and although the Defendants have challenged this part of the order, I do not consider that this court should interfere with the way Douglas Brown J exercised his discretion on a costs issue.

39. There remained the battle over the costs of the action before Judge Rivlin on 11th February 1997. The Plaintiff sought an award of costs in respect of the whole of the action. The Defendants contended that as they had paid £3,500 into court on 14th November 1994 and as they had been successful on the important issue of causation, and as the award in respect of pain and suffering until referral to hospital was only £3,000, the Plaintiff should be ordered to pay all the costs of the action: alternatively that in the exercise of the judge’s discretion he should grant the Plaintiff only a proportion of his costs. The chasm that divided the parties was as great as it possibly could be, and very large sums of costs, in relation to an action which took up 13 days of High Court time, were at stake.

40. The judge rejected all the Defendants’ contentions and directed that they should pay all the Plaintiff’s costs of the action. He was critical of the way the Defendants had conducted the case, and he said that they had two quite separate opportunities to protect their position as to costs. The first was by a payment in or a Calderbank letter. The second was by means of a written acceptance of liability under Order 33 Rule 4A. He did not consider that the Defendants’ efforts in the first respect had served to protect their position, and he had no doubt that the Defendants could have availed themselves of Order 33 Rule 4A if they had wished to do so. Earlier in his judgment the judge said that he had no doubt that by the time he granted the Plaintiff leave to re-amend his claim, the Defendants were well aware and always had been that the claim included an element for psychiatric, or psychological, injury and that in a split trial, as this was, this was a matter which the court would be required to investigate. I will refer to this judgment in rather greater detail in paragraph 59 below.

41. At the start of his submissions Mr Andrews told us that this appeal raised issues of very great importance to personal injury practitioners in relation to the conduct of actions in which there is an order for a split trial. In these circumstances it is necessary to set out the relevant rules and principles with some care.

42. First, Order 18 Rule 12(1A). This is in uncompromising terms:

"Subject to paragraph (1B), a plaintiff in an action for personal injuries shall serve with his statement of claim -

(a) a medical report, and

(b) a statement of the special damages claimed.

43. The definitions of these two expressions are also in uncompromising terms: see Rule 12(1C):

"For the purposes of this rule -

'Medical Report’ means a report substantiating all the personal injuries alleged in the statement of claim which the plaintiff proposes to adduce in evidence as part of his case at the trial;

'a statement of the special damages claimed’ means a statement giving full particulars of the special damages claimed for expenses and losses already incurred and an estimate of any future expenses and losses (including loss of earnings and of pension rights).”

44. The only circumstances in which a plaintiff may be relieved of his obligations under Rule 12(1A) is if the Court makes an order under Rule 12(1B), which may include an order dispensing with the requirements of (1A). Needless to say if the parties reach a clear agreement that there is no need to serve a medical report or a statement of the special damages for the time being, the plaintiff will not suffer any detriment from relying on such an agreement and the court is unlikely to be invited to make an order for their service contrary to the parties’ wishes.

45. There was, however, no such agreement in this case, and the Plaintiff’s solicitors were not free to proceed unilaterally to ignore the provisions of the rule without seeking an order under Rule 12(1B). It follows that the Defendants were entitled to rely on the 1990 medical report of Dr Kingston and the Particulars of Loss and Expense in the Statement of Claim as fulfilling the requirements of Rule 12(1A).

46. In cases where the final prognosis is uncertain at the time the Statement of Claim is served, the medical report(s) served with the Statement of Claim must make this clear, and care must be taken to include in the statement of special damages all the expenses and losses already incurred, even if for understandable reasons any future expenses and losses can only be estimated. The obligation to serve a medical report with the Statement of Claim is quite different from the obligation to comply with the requirements of the Order for Directions in relation to expert medical evidence to be called at the trial, particularly in a case where the final medical picture is not yet known at the start of the proceedings. In the same way, the statement of special damages which must be served with the Statement of Claim may have to be extended in due course, in a case in which the prognosis is uncertain or where there is a claim for future loss, to include updated figures for actual expenses and losses and a revised estimate of future losses when a schedule is served prior to trial in compliance with the Practice Direction (Damages: Personal Injuries) [1994] 1 WLR 1127.

47. The mischief which the introduction of sub-rules (1A) - (1C) into Order 18 Rule 12 was enacted to prevent is set out vividly in the Report of the Review Body on Civil Justice (Cm 394, 1988). Delay in litigation causes personal stress, anxiety and financial hardship to ordinary people and their families (para 68), and the cost of litigation is often quite disproportionate to the amount involved in the claim (para 69). Personal injuries litigation is the branch of civil litigation which has aroused most concern on the score of cost and delay (para 390(iii)). A general principle of ‘cards on the table’ as a means of reducing cost and delay in personal injury cases met with widespread approval during the course of the review (paras 439 and 446), and the idea that rules of court should be introduced of the type now enacted was identified as a means of facilitating evaluation of claims by defendants, encouraging early settlements and shortening trials (para 449 and R 60(iii)).

48. The rule-change makes it easier for defendants to evaluate claims from the outset, although they may well have to be put on notice that because the plaintiff’s medical condition has not yet settled there is still an element of uncertainty about the general damages claim and the future loss claim. This should be made apparent from a combination of the Statement of Claim and the two documents required to be served with it, which should represent between them the true amount and evaluation of the plaintiff’s claim, so far as this is practicable, at the time the Statement of Claim is settled. It is improper for plaintiff’s solicitors to recuse themselves unilaterally from performing this obligation, so far as the service of an up to date medical report is concerned, although this may be quite a short document if the expense of preparing a full report at that stage is not justified, and if the continuing uncertainties are properly explained in the Statement of Claim and the statement of the special damages. Alternatively they may be relieved of this obligation completely by agreement or by obtaining a direction of the court under Rule 12(1B).

49. I have observed that the new rules were introduced to facilitate the evaluation of claims by defendants and encourage early settlements. Another device identified by the Civil Justice Review Body as a means of reducing cost and delay in personal injury cases was the use of split trials on liability and quantum (para 435(vii)). The Review Body reported (para 397) that the great majority of tort claims concern injury suffered on the road or at work:

"Disputes about liability mainly arise over the cause of the accident. They also relate to the extent, if any, to which the conduct of the claimant himself contributed to the accident; and the extent to which the alleged injuries were caused by the particular accident.”

50. Payment into court (see Order 22) has always been the way open to a defendant to protect his position into costs in response to a money claim. In 1980 Order 33 Rule 4A was introduced on a recommendation contained in the Report of the Personal Injuries Litigation Procedure Working Party (Cmnd 7476, 1979) which was concerned (see para 106) that there was at that time no rule which expressly allowed a defendant to make an offer to accept a specified proportion of responsibility when a split trial was ordered. The rule provides:

"4A (1) This rule applies where an order is made under Rule 4(2) for the issue of liability to be tried before any issue or question concerning the amount of damages to be awarded if liability is established.

(2) After the making of an order to which paragraph (1) applies, any party against whom a finding of liability is sought may (without prejudice to his defence) make a written offer to the other party to accept liability up to a specified proportion.

(3) Any offer made under the preceding paragraph may be brought to the attention of the judge after the issue of liability has been decided, but not before.”

51. This rule means what it says, and it allows a defendant to make a written offer to a plaintiff to accept liability up to 25% or 50% or 75%, or as the case may be. In my judgment the rule was wholly inapplicable in the present case where it is clear from the correspondence “without prejudice save as to costs” that the defendants were willing to accept 100% liability of a claim for up to 18 months of ‘loss’ due to a delayed diagnosis (which I will call “the tiny claim”), but no liability at all for a claim that their failure to make a referral was the cause of the boy losing his leg (which I will call “the big claim”). Contributory negligence was never suggested or pleaded, and what was very seriously in issue was the causation of the loss of the leg. In my judgment Order 33 Rule 4A was never intended to apply to a situation like this, and Judge Rivlin was plainly wrong to think that it was when he came to exercise his discretion on costs.

52. Putting on one side for a moment the effect, if any, of the payment into court, the most substantial issue Judge Rivlin had to determine was who should pay the costs of the issues on liability and causation. The governing rule is Order 62 Rule 3(3) which provides:

"If the Court in the exercise of its discretion sees fit to make any order as to the costs of any proceedings, the Court shall order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.”

53. Matters to be taken into account in exercising this discretion are expressly provided for by Order 62 Rule 9(1) which refers, so far as is material to:

"(b) any payment of money into court and the amount of such payment;

(c) any written offer made under Order 33 Rule 4A(2); and

(d) any written offer made under Order 22 Rule 14, provided that ... the Court shall not take such an offer into account if, at the time it is made, the party making it could have protected his position as to costs by means of a payment into court under Order 22.”

54. Mr Andrews was at pains to argue that the rules as to payment in were not really appropriate for determining the costs of a preliminary issue on liability and causation where the court’s order for directions had limited the exchange of medical reports to those issues. If that submission was well-founded, then the court determining where the costs of a preliminary issue should fall would be entitled pursuant to Order 62 Rule 9(1)(d) to take into account any written offer made under Order 22 Rule 14 (a “Calderbank letter” served “without prejudice save as to costs”).

55. If one puts on one side both the payment into court and the Calderbank letter, there is still no doubt that the Defendants essentially won the trial on liability and causation. All the Plaintiff got out of it was a decision which reduced the potential value of his claim, as then put forward, by 99%, from about £300,000, inclusive of interest, to about £3,000. In a situation like this, where on the trial of preliminary issues the Plaintiff wholly failed on the big claim (that the Defendants’ negligence caused the amputation) and only succeeded on the tiny claim (that the Defendants ought to have referred the child earlier and are liable in damages for the effects of the delayed diagnosis) the decision of this court in Re Elgindata Ltd (No 2) (1992) 1 WLR 1207 should be applied with appropriate caution. In that case the court was concerned with the costs of a 43-day action in which numerous issues and sub-issues had been canvassed, and Nourse LJ’s third principle, at p 1214B, is in these terms:

"(iii) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or a part of his costs.”

56. In my judgment, there are parts of the judgment of Stuart-Smith LJ, with which Balcombe and Peter Gibson LJJ agreed, in Beoco Ltd v Alfa Laval Company Ltd (1995) QB 135, to which Judge Rivlin was also referred, which were of much more moment in the present context. In that case the value of the plaintiff’s claim, inclusive of interest, was about £1m (see p 145F), and the effect of the judge’s judgment, at the end of an expensive trial, was that the only damages the plaintiff was entitled to recover were likely to be no more than the £21,574.28 claimed for one item and might well be less (see p 156B). Although this judgment was mainly concerned with the appropriate order for costs on a very late re-amendment, this court also accepted the third submission made by Mr Stow QC, to the effect that the first defendant was substantially the successful party because the plaintiff was aiming at recovering a sum in the order of £1m, whereas all that it succeeded in getting was judgment for damages to be assessed, which on any basis were likely to be more modest (see pp 153G and 155C).

57. In his judgment Stuart-Smith LJ referred to such earlier authorities as Anglo-Cyprian Trade Agencies v Paphos Wine Industries Ltd [1951] 1 All ER 873 (Devlin J: plaintiff claimed £2,000 and recovered £50 on a late amendment: defendants awarded the costs of the action): Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394 (CA: plaintiff claimed £82,500 and recovered £2 nominal damages: defendants awarded the costs of the action); and Lipkin Gorman v Karpmale Ltd [1989] 1 WLR 1340 (CA: plaintiff claimed £250,000, including £3,375 on a late amendment, and recovered £3,375: defendants awarded the costs of the action down to the date of the amendment and 80% thereafter). Stuart-Smith LJ then continued at p 156A-D:

"What then should be the result in this case? I can see no reason to deprive the first defendant of the costs down to the date of the amendment. Thereafter, they were essentially the winners, since the primary contest related to the damage caused by the explosion. Even on the basis of the judge’s conclusion that the defendant would be liable for the hypothetical loss of production, it was a case in which the first defendant should have been awarded a proportion of their costs thereafter, for the reasons I have already given. As it is, in the light of our decision that the only damages that the plaintiff is entitled to recover is the cost of replacing the casing of the heat exchanger and such loss of production that occurred on 24th August as a result of the defect discovered on that day, this is likely to be no more than £21,574.28 now claimed in the Scott schedule and it may well be less. Although this sum cannot by itself be described as trivial, in the context of a claim for £1m, and the enormous expense of this action, it is trivial. It makes no commercial sense to incur costs of this sum to recover such a small sum. And it seems to me very probable that if the first defendant had a proper opportunity to make a payment into court on the basis that its liability on the alternative claim was limited in the way we have held it to be, it would have done so. A payment in of £21,574 plus interest, would obviously not have been accepted and it would have made sound commercial sense to have made it. But for the reasons I have indicated, the first defendant had no chance to do so. Accordingly, in my judgment, although some discount should be made to reflect the very modest degree of success that the plaintiff achieved, it should not be a large one. I would award the first defendant 85 per cent of its costs after 24th February 1992.”

58. In this line of cases, where the plaintiff only recovers between 1% and 3% of his original claim (sometimes, but not always, after a late amendment) the court is entitled to ask itself: “Who was essentially the winning party?” It will not be distracted from making a just order as to costs by the absence of a payment into court which the plaintiff obviously would not have accepted (see Alltrans Express per Stephenson LJ at p 403A-C and Griffiths LJ at p 404C-E), or where the defendants did not have a proper opportunity to make a payment into court which obviously would not have been accepted (see Beoco at p 156C-D). Although all these cases are different, in the present case the substantive lis between the parties on the trial of the preliminary issues related to the big claim on which the plaintiff wholly failed.

59. Judge Rivlin was influenced in the exercise of his discretion as to costs by the following considerations:

(1) That the main reason why the trial of the preliminary issues lasted nine days was that seven and a half days were taken up with issues of negligence;

(2) That although the full value of the plaintiff’s claim, if proved, would have been in the region of, or in excess of, £250,000, the plaintiff was at the end of the day awarded a significant sum of damages;

(3) That the plaintiff’s decision not to accept the very modest payment into court, or the small increased offer, could not possibly be said to be unreasonable, given that in the judge’s view the offers made to him were on any view parsimonious;

(4) Given that the plaintiff was awarded £17,500, and applying the Elgindata principles, there was a strong case that he should be awarded all his costs of both trials and of all the intermediate proceedings;

(5) That the late amendment of the plaintiff’s case to include specific allegations of psychiatric damage did not mean that this order would create injustice to the defendant;

(6) That the defendants could have protected, and did not succeed in protecting, their position by a payment in or a Calderbank letter, or by means of a written acceptance of liability in accordance with Order 33 Rule 4A. (I have already expressed my view that rule had no application in this case.)

60. In the result, the judge was satisfied that the Defendants should pay all the Plaintiff’s costs of the action. These were divided up so that there were separate orders for two trials and five interlocutory hearings, with interest on costs running for the most part from the date of the relevant hearing. He refused leave to appeal, but leave was granted by Beldam LJ at the same time as he granted the Defendants leave to appeal against Judge Rivlin’s order granting the Plaintiff to re-amend.

61. I should say at once that I regard that order as properly made, subject to its costs implications. The Plaintiff was entitled to plead his case as he sought provided that the Defendants could be substantially protected in costs from any injustice arising from the re-amendment ( Beoco Ltd v Alfa Laval Company Ltd [1995] QB 135). Once the re-amendment was granted, there was no reason why the Plaintiff should not recover his costs of the assessment of damages from the date of the re-amendment, since the Defendants did not protect themselves against the enlarged claim by an appropriate payment in.

62. The problems that bedevilled this action during 1996 arose from the fact that the Plaintiff’s solicitors had not paid any proper attention until early 1995 to the way their tiny claim (in which there was no hint of continuing damage until the psychiatric element was introduced) was pleaded or quantified. They had been given an express opportunity to particularise this claim more fully which they did not take. There was also no hint (even in the Plaintiff’s mother’s witness statement, served before the trial on liability) of the continuing frequency of severe extreme pain which induced Douglas Brown J to award £3,000 damages, and no mention of any psychiatric damage at all.

63. In my judgment the sum of £3,500 which the Defendants paid into court in November 1994 could not reasonably be described as a parsimonious evaluation of what they had by then been told about the tiny claim. If it was necessary to do so, I personally would have held that was a payment in which adequately protected them against costs until the re-amendment of the Plaintiff’s claim two years later. I prefer, however, to adopt a different approach in the very unusual circumstances of this case, for the reasons I give in paragraph 67 below.

64. I am satisfied that on any showing Judge Rivlin’s approach to the exercise of his discretion as to costs was plainly wrong and that it cannot stand. My reasons are these:

(1) The Defendants only put up a stubborn resistance on liability because on Professor Sikora’s evidence the Plaintiff’s solicitors were contending that any finding of negligence which antedated January 1989 rendered the Defendants liable for the big claim, and they were persisting with the big claim against the First Defendant despite his solicitors pointing out that even if what Professor Sikora said was accepted by the judge they would not succeed on the big claim as against him. In their Calderbank letter they made it clear that they would be happy to negotiate a settlement of the tiny claim, notwithstanding the payment into court.

(2) The judge was quite wrong to lump the trials as to liability/causation and quantum together. If he had kept them separate in his mind and remembered that until the re-amendment was permitted the Plaintiff’s tiny claim was indeed a tiny claim, he would never have linked what he called a “significant sum of damages” with his decision on the costs of the trial of the preliminary issues, which the Plaintiff essentially lost. He was also wrong to say that the Defendants had always been well aware that the Plaintiff’s claim included an element for psychiatric or psychological injury. There was no clear evidence of such a claim until Dr. Black's report (see para 36 above) was served in August 1996: it was hinted at for the first time in March 1995.

(3) Like the judge I do not consider the Plaintiff’s conduct in the action to be unreasonable, in the sense that word is used in connection with discretionary decisions on costs, although I differ from him as to the adequacy of the amount paid into court in relation to the size of the tiny claim, as it was then reasonably evaluated by the Defendants’ solicitors on the information then placed before them.

(4) The judge was wrong, when applying the third principle in Elgindata, not to make a separate order as to the costs of the issues on liability/causation on which the Defendants were essentially the winners.

(5) The late amendment of the Plaintiff’s case to include specific allegations of psychiatric damage completely transformed it as compared with his case on the tiny claim at the end of 1994.

(6) The judge’s reference to the applicability of Order 33 Rule 4A was wrong. In my judgment the Defendants did protect themselves adequately by the payment in (and, if the payment in should be treated as inapplicable for the reasons suggested by Mr Andrews) they protected themselves to a considerable extent by the terms of the Calderbank letter.

65. I have great sympathy with the judge. He was being invited to exercise his discretion in a most unusual situation, and no doubt he was also influenced by a very humane desire to protect Burac’s award of damages from the incidence of the legal aid charge or from a set-off for costs asserted by the Defendants. In this context Mr Andrews told us that Burac desperately needs the course of psychotherapy treatment for which Douglas Brown J awarded him £1,720, and that such a course cannot be funded by the National Health Service.

66. Since Judge Rivlin’s order cannot stand, it is for this court to decide in the exercise of its discretion how the costs of the action should fall. In my judgment the appropriate order would be that the Defendants should pay the Plaintiff his costs of the action up to 20th December 1994, save that the Plaintiff should pay the Defendants 90% of their costs arising out of the trial of the issues on liability and causation. The Defendants should pay the Plaintiff his costs thereafter, except for the costs of and incidental to the application to re-amend which the Plaintiff should pay the Defendants. The Defendants are to be entitled to set off any costs the Plaintiff may be liable to pay them under this order against any liability they may have to pay damages and costs to the Plaintiff.

67. I would make the order in this form because, in the absence of guidance from this court, the Plaintiff’s solicitors might be forgiven for not having incurred expense (for which they would have required legal aid authority) in ascertaining the likely eventual dimensions of what I have called the tiny claim between the time the Statement of Claim was served and the time the preliminary issues were decided. In those circumstances it would be much fairer to ignore the payment into court, and instead to treat the Defendants as essentially the winners in relation to the preliminary issues. I would limit their recovery of costs to 90% because it would always have been open to them to have made an admission of facts under Order 27 Rule 1, and this could have reduced the length and costs of that trial. The Second Defendant did not write a Calderbank letter, and the First Defendant’s solicitors were not willing to accept the possibility of a finding of negligence prior to April 1989 in the letter they wrote. However that may be, so long as the Plaintiff was asserting that Dr Kay’s alleged negligence in January 1989 was causative of the need to amputate the leg this assertion would have been bound to be resisted, and the Plaintiff lost on that major issue.

68. After the end of the trial of the preliminary issue the Defendants were put on notice that the quantum of the Plaintiff’s tiny claim might be larger than hitherto suggested. This court has said that so long as notice is given (particularly in the form of medical reports) it is not necessary to go through the formal process of amending the pleadings each time the medical position changes ( Owen v Grimsby & Cleethorpes Transport , The Times, 14th February 1991) and the Defendants then did nothing to protect their position by way of an enlarged payment into court. On taxation of the Plaintiff’s costs over this period, however, the taxing authorities should bear in mind that this was at best a £20,000 claim from December 1994 onwards.

69. In response to Mr Andrews’ request for general guidance, the moral of this history seems to be:

(1) Order 18 Rule 12(1A) is there to be obeyed. Defendants should be able to evaluate a claim and make a payment into court soon after a Statement of Claim is served, if they wish. The statement of the special damage claim must be fully stated as at the date of the Statement of Claim. If for any reason a Plaintiff’s solicitors wish to be relieved of their obligation of commissioning an up to date medical report at the time when proceedings are served, they should obtain agreement from the Defendants’ solicitors about this course, or an order from the court. In any event, if the Plaintiff’s prognosis is still uncertain at the time the Statement of Claim is served, this should be made clear in the Statement of Claim.

(2) If from a defendant’s defence it is clear that he is suggesting that even if the plaintiff wins on liability he may lose on causation to a very substantial extent, his solicitors must furnish particulars to the defendant’s solicitors of their client’s claim on the alternative hypothesis (negligence but not much resulting damage) if these are requested. Otherwise, if a payment into court is made, they may find themselves in difficulties if they lose on their principal causation allegations in a trial of a preliminary issue.

(3) On a trial of a preliminary issue a court may ask itself “Who essentially was the winner?” and make an order as to costs to follow that event in a case like the present, in which it may be prudent to take much more care in formulating the preliminary issues to be tried, in order to make it easier for a Defendant to limit them by admissions.

(4) If for any reason a payment into court is not an available option in a personal injuries action, Defendants’ solicitors should bear in mind that a Notice Admitting Facts may be a more effective device for limiting their clients’ liability for costs than a Calderbank letter.

(5) Order 33 Rule 4A is available as a device for limiting the incidence of costs where the proportion of a Defendant’s liability may be in issue. It is not available in a case like the present, where there was no suggestion of any contributory negligence.

70. For the reasons I have given, I would dismiss the Defendants’ appeal from the order granting leave to re-amend, allow their appeal from the judgment of Douglas Brown J to the limited extent set out in paragraph 17 above, and allow their appeal from Judge Rivlin’s order for costs, substituting the order I have suggested in paragraph 66 of this judgment. I hope that counsel will be able to agree draft minutes of the order of this court which will reflect the effect of this judgment.

Millett LJ: I agree.

Hirst LJ: I also agree.

Order: defendants' appeal from order granting leave to re-amend dismissed; defendants' appeal from judgment of Douglas Brown J allowed to limited extent set out in paragraph 17 above; defendants' appeal allowed from Judge Rivlin's order for costs, substituting order in paragraph 66 above; no order for costs in hearing on costs before Judge Rivlin; appellants to have 90% of costs of the appeal; respondents' application for leave to appeal to House of Lords refused; legal aid taxation; certificate for two counsel wherever required.

(Order not part of the judgment of the court)