Crossing the Line in Cross Examination

Case Review: O'Carroll v Aras Slainte & Others
 
In most cases, costs follow the event so that the unsuccessful party is liable for the successful party's costs. The Court of Appeal recently considered this long-standing principle when it heard an appeal in a medical negligence claim.

Case Facts

Miss Helena O'Carroll alleged negligence against a number of health care providers for the medical care that she received in the aftermath of an injury to her right hand. The defendants included her Orthopaedic Surgeon, Stefan Byrne.

Justice Cross dismissed her claim on the grounds that she had failed to establish that Mr Byrne breached his duty of care towards her.   However, Justice Cross took serious issue with the cross examination that Mr Byrne's counsel had subjected the Plaintiff to.  In his opinion, an allegation of fraud was made against the Plaintiff which he felt was unfounded.  To mark the court's disapproval of that line of questioning, he denied Mr Byrne his legal costs, even though he had successfully defended the case.

The Appeal

Mr Byrne appealed against that refusal, arguing that the trial judge erred and misdirected himself in law in a number of ways:
 

• in failing to award the costs of the proceedings to the victor,
• in departing from the principle that ‘costs follow the event’,
• in failing to provide any or any adequate basis for departing from that principle
• in holding that aspects of the cross-examination of the respondent by counsel for the appellant amounted to an allegation of fraud.

The Court of Appeal

Justice Donnelly, Justice Haughton and Justice Power heard the Appeal.

They firstly considered the general principle articulated at Order 99, r. 1(3) of the Rules of the Superior Courts that "costs follow the event" which is applicable both in the High Court and on appeal.  The Judges noted however, that the question of costs is a matter that ultimately comes within the discretion of a trial judge.  This discretion to depart from the general principle was confirmed in the case of Child and Family Agency v. O.A[1].  All three judges agreed that a judge is also entitled to exercise his/her discretion and to depart from the general principle if the Court considers that a line of inquiry introduced by counsel was improper.

The Court of Appeal reviewed the line of questioning in the transcript.  Justice Power stated that it was clear that the trial judge found the line of questioning to be improper and that he had intervened on a number of occasions.  It was also clear that Ms O'Carroll herself was offended by the line of questioning.
The Court of Appeal held that that there must be a proper basis for pursuing a line of inquiry that is directed towards questioning the truthfulness or honesty of a witness.  It was satisfied that the trial judge was entitled to afford his disapproval of the line of inquiry pursued.   That said, the Court of Appeal held that the trial judge's decision in making no order for costs in circumstances where Mr Byrne had fully and successfully defended a claim in medical negligence, was disproportionate.

Justice Power stated that allowing such an order to stand where no allegation of fraud was made would create a "chilling effect" upon defendants who robustly cross-examine plaintiffs to discover if they are overstating their injuries.  The Court of Appeal ultimately allowed the Appeal and ordered that Mr Byrne recover 50% of the costs he had incurred in defending the claim.

The key takeaway is that while the principle that costs follow the event still holds true, a trial judge does still retain an element of discretion when deciding to award costs.  A copy of the full judgment is found below:

 https://beta.courts.ie/acc/alfresco/70205207-6939-4cbb-9acb-09512258cc77/2020_IECA_127(unapproved).pdf/pdf#view=fitH
 
Written by Emma Faloon.

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