This was a medical negligence action arising out of the death of the claimant's 83-year-old husband. A post mortem examination initially suggested that the deceased had died as a result of liquid food being directed by a tube into his lung instead of his stomach. This finding was challenged at the subsequent inquest, where the presence of the food in the lung was explained by the deceased having regurgitated the food and then breathed it in. The defendant denied any negligence, and maintained this stance all the way through to trial and judgment, where the judge found in its favour. On the way, because of its belief that there was no negligence and that resources would be wasted in the attempt, the defendant refused several offers by the claimant to mediate the dispute.
The claimant asked the Court of Appeal to overturn the judge's costs order in favour of the defendant, and order instead each side to bear their own costs, on the grounds that the defendant had refused offers to mediate the dispute.