Court rules defendants in discontinued suits not always entitled to legal costs

Legal costs will not be awarded to defendants in every case in which claimants have discontinued suits against them, the Court of Appeal has ruled.

The court made the ruling when it dismissed an appeal brought by Dr Conrad Morris against a Supreme Court ruling in favour of former patient Troy Campbell who had brought a negligence suit because an instrument was left in his abdomen after surgery.

Attorney-at-law Andre Earle, who represented Campbell, said today that the ruling last week was a major victory.

“This case establishes a precedent as to the circumstances in which a defendant against whom a case has been discontinued ought to be deprived of his costs,” Earle said.

Earle explained that the case was the first of its kind in Jamaica and the appellate court had to look at authorities from jurisdictions overseas in coming to its decision.

He explained that the normal rule was that a claimant who discontinued a claim was liable to the defendant for costs incurred up to the date of discontinuance.

Earle said the court found that there were cogent reasons for departing from the normal principle.

Bad Surgery 

Campbell had surgery at the May Pen Hospital on September 24, 2008.

It was subsequently discovered that a crile artery forceps was left in his abdominal cavity.

A second surgery was done on October 2, 2008, to remove the instrument.

In July 2014, Campbell, who was also represented by attorney-at-law Coleasia Edmondson, brought a negligence suit against the surgical team who were Dr Morris, Dr Percival Duke and operating theatre nurse Audia Elliston.

The Southern Regional Health Authority and the Attorney General were also named as defendants.

Morris, who was represented by Queen's Counsel John Graham, did not accept liability when the suit was filed and stated that he intended to defend the claim.

Court

The Court of Appeal referred to the fact that Earle had informed Graham in April 2015 that Campbell was in negotiations with the Attorney General with a view to settling the matter.

The claim was settled in June 2015 and Earle informed Graham of the settlement.

The court pointed out that after the release Graham wrote several letters to Earle to find out if a notice of discontinuance was filed.

The notice of discontinuance was filed in September 2018, which effectively ended the claim against the parties.

The court said over the two-year period Morris did not indicate in any of the letters written by Graham that he was desirous of proceeding to trial and had no interest in the settlement.

Morris filed a bill of costs for $778,000 in October 2018 which was dismissed by Supreme Court Judge Yvonne Brown in February last year.

He then filed an appeal.

The Court of Appeal, in its ruling, said the judge adopted the proper approach in arriving at her decision.

- Barbara Gayle

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