DDM v Al-Zahra (PVT) Hospital & Ors

Mr Justice Foskett:

1. The substantive judgment in this matter can be found at [2018] EWHC 346 (QB) .

2. In the draft order prepared by Ms Gumbel following that judgment, she sought an order that 1-6 Defendants should disclose and make available for inspection such medical records (or copies thereof) as they hold in respect of the treatment of the Claimant. Mr Davis objects saying that this should be dealt with by the Master in the usual way, the matter remaining with him despite the successful appeal. He also says that agreeing to such an order might be construed as a step in the action and, finally, that if the court declined jurisdiction in due course in response to the proposed application on the part of the Defendants, disclosure will have been a waste of exercise.

3. I have considerable sympathy with the desire of the Claimant and her team to “get on” with this litigation given the significant delays and lack of co-operation from the 1-6 Defendants. However, I do not think it is right for me to embark on resolving issues that are not strictly speaking before me. Accordingly, any issues concerning disclosure must be dealt with by the Master.

4. The Claimant seeks her costs of the appeal and of the Defendants’ application dated 20 April 2017 and of the hearing before the Master. The Defendants say that the costs should be reserved until all the remaining applications have been dealt with including those designed to bring the action to an end in this jurisdiction.

5. In my view, the application made to set aside the orders of the Master extending time and the successful appeal from his decision to set aside one of those orders represent a discrete episode in this litigation irrespective of the eventual outcome of the applications contemplated by the Defendants. To that extent, I do not consider it appropriate for the costs to be reserved.

6. In seems to me to be clear that the Claimant should have the costs of the appeal (to be assessed on the standard basis if not agreed). The only question, in my judgment, is whether she should have the whole of the costs associated with the Defendants’ application dated 20 April 2017 and of the hearing on 12 July 2017. As indicated in the substantive judgment, I think that the information provided to the Master in relation to the second extension order was less than it should have been and, as again indicated in the judgment, it is likely that the Master would have taken a different view of the position before him had he had been reminded that the application was a re-hearing.

7. Overall, in those circumstances, I think that if I award the Claimant 75% of her costs of responding to the Defendants’ application of 20 April 2017 and of the hearing before the Master, I shall have done broad justice to the situation.