Food Poisoning Claim, CPR 44.3 Conduct, Calderbank Offers and Issue-based Costs Orders

The Claimant brought her claim 2 years and 5 months post-return from holiday without ever having even written her own letter of complaint to the tour company. The delay meant that the Defendant had no evidence with which to question the Claimant’s account of events – of her illness ‘in resort’ or events upon return [they had no reps or local records from the time and only saw limited GP records]. The Defendant initially contested breach and causation because it was unclear whether or not the Claimant could have caught her illness whilst on an excursion or in some non-negligent way and there had been no outbreak of holiday illness .She used Irwin Mitchell who in fact sent a letter of claim for a typical short-lived Gastroenteritis.

She subsequently told experts, pleaded the case, and submitted witness statements to the effect that she had been admitted to a foreign hospital for 4 days but had never really got better. She said that this persisted on return from holiday and that she had been admitted to hospital a month after return home with an illness which transformed from constant diarrhoea to a diagnosis of ulcerative colitis and that her social life had been destroyed from the time of her return to the UK. This version of events was maintained to trial but transpired to be untrue.

In fact, when Dominican Republic records were secured after 12 letters and 2 threatened applications a year or more after issue of proceedings, they showed a total of only 2 days inpatient stay and discharge symptom free. When UK hospital records were obtained they showed that she had been almost entirely symptom free for a period of 6 months prior to an admission leading to diagnosis of ulcerative colitis. Her facebook records were disclosed after a long struggle. These showed a healthy social life and relatively ordinary existence upon return home but revealed that the Claimant has been on another holiday abroad just before 6 months after return from the index holiday and that upon return she had been taken ill with ulcerative colitis.

Claimant’s Oral evidence at trial purported to contend that when her GP and Hospital doctors had recorded that she had no symptoms for 6 months this was because she had intentionally misled the doctors whom she preferred not to trouble. The court ruled that this evidence was not credible.

After close of pleadings (which included a provisional damages claim for the chance of complications necessitating complex bowel surgery) and after receipt of witness statement, medical and facebook records the Defendant accepted that there had in fact been an illness on the holiday and that lacking any liability evidence it was appropriate to make a part 36 offer of £5,000. [the offer was time limited to 21 days and defective for part 36 purposes by virtue of absence of CPR 36.2(2)(c) details of the costs offer]. The offer was formally rejected after 28 days.

The case proceeded after the offer accumulating expert evidence on both sides [microbiology and gastroenterology].

The Claimant’s case on causation of ulcerative colitis through gastroenteritis was tenuous to the extent that the Oxford Textbook of medicine does not mention gastroenteritis in connexion with ulcerative colitis but she relied on 2 retrospective epidemiological studies which supported a doubling of risk in some situations.

When Joint statements were received the Defendant conceded liability formally for only a short lived gastroenteritis so as to avoid a liability trial and to avoid microbiology evidence. Despite the concession the Claimant chose to call her microbiologist and gastroenterologist to prove causation of ulcerative colitis.

The Defendant made a [relatively generous] £50,000 calderbank global offer so as to avoid unrecoverable costs – purporting still to intend to rely also on the rejected £5,000 offer.

The Claimant counter-offered £145,000 on a global basis.

Almost the whole trial was taken up by medical causation. The Claimant failed on causation and on the 2nd Day had agreed to accept £4,000 for a short lived gastro illness.

The judge on the day long costs hearing was invited by the Claimant to order Defendant pay Claimant’s costs up to the end of the 1st day of trial on grounds that Claimant had been forced to come to court on liability if nothing else and on grounds that the £5,000 offer was of no account given that it was non-compliant and that conduct [non-disclosure, giving a ludicrous and incredible version of events, calling microbiology expert etc.] was insufficient to justify part 44.3 discretion being exercised against her.

The Defendant sought an order that Defendant pay Claimant costs up to 21 days after the £5,000 offer and Claimant pay Defendant’s costs thereafter.

The Court actually ordered that the Defendant pay the Claimant’s costs up to 21 days after the £5,000 offer, made no order for costs up until the formal admission of liability and thereafter ordered the Claimant to pay the Defendant’s costs of the month before trial and the whole trial. The Claimant was refused leave to appeal.

This was heard on 16/7/13 by HHJ Robert Owen QC at Birmingham County Court.