Costs order was premature

Chadwick v Hollingsworth (No.2) [2010] EWHC 2718 (QB) 2 November

The claimant appealed against an order that he was to pay the costs of his claim for clinical negligence against the defendant surgeon up to the date of an amended particulars of claim. The claimant had undergone knee replacement surgery performed by the defendant and, following complications, brought proceedings for negligence. His particulars of claim were based on advice from another orthopaedic surgeon (X). X withdrew and the claimant instructed a new expert (Y) who raised further issues. The claimant applied successfully to substitute Y for X in the proceedings and to vacate the original trial date. Y provided a second report which included new allegations of negligence and the claimant sought to amend his particulars of claim. The trial date had to be vacated again. The judge considered that the claimant’s amended claim advanced a substantially new case for the defendant to meet and that his original claim would have failed. He granted the claimant permission to amend his claim but ordered that he pay the costs of the proceedings to that date.