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Cost Drafting and Medico-Legal Blog

 

Read through our latest blog posts and feel free to comment on them if you like. We are continually adding new medico-legal consultants to our partnership, as well as keeping abreast of all the latest legislation updates. All of this information can be found here.

 

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BRUMA v HASSAN & ANOR, QBD (Judge Curran QC) 16/01/2018

 

The defendants in this catastrophic RTA had done little to try to settle in circumstances where they had rejected a Part 36 offer.  Indemnity costs were awarded, with 4% above base being the appropriate rate of interest under CPR r.36.17(4)(c).

 

 

BRUMA v HASSAN & ANOR, QBD (Judge Curran QC) 16/01/2018

 

The defendants in this catastrophic RTA had done little to try to settle in circumstances where they had rejected a Part 36 offer.  Indemnity costs were awarded, with 4% above base being the appropriate rate of interest under CPR r.36.17(4)(c).

 

 

WRIGHT v FIRSTGROUP PLC, QBD (Foskett J) 12/01/2018

 

Another case where a Claimant was granted permission to use a new expert in circumstances where their expert had changed his view following a joint meeting and to not allow a new expert would have resulted in an unfair disadvantage to the Claimant.

 

This was an unusual case and it should be borne in mind that the court would always deter expert shopping. 

 

Part 36, Indemnity Costs, Inflation of Costs, Assignment of CFA

 

(1) DOREEN MCKEOWN (2) DANIEL MCKEOWN v TANZA TOTTLE VENTON, CC (Liverpool)12/06/2017

Defendant's late acceptance of Claimant's Part 36 offer in low value personal injury claim which had exited portal did not give rise to entitlement to indemnity costs.

 

Costs penalty for late acceptance of Part 36 offerhttps://www.lawgazette.co.uk/law/libel-claimants-face-costs-penalty-for-late-acceptance-of-part-36-offer/5063580.article

 

W PORTSMOUTH & CO LTD v CHRISTINE LINDA LOWIN (DAUGHTER & EXECUTRIX OF THE ESTATE OF ADELAIDE LOWIN, DECEASED), EWCA

CA (Civ Div) 19/12/2017

Where costs of a provisional assessment are awarded on an indemnity basis under r.36.17(4), those costs would be subject to the cap under CPR r.47.15.

 

https://www.litigationfutures.com/news/provisional-assessment-cap-not-displaced-part-36-offer-court-appeal-rules

 

(1) NICHOLAS MARTIN (2) BIG HAT STORES LTD (Claimants) v JULIA KOGAN (Defendant/Part 20 Claimant) & (1) FLORENCE FILM LTD (2) PATHE PRODUCTIONS LTD (3) QWERTY FILMS LTD (Part 20 Defendants)

IPEC, 13/12/2017
A case setting out how the court should deal with an award of indemnity costs where the Defendant had failed to beat the Claimant’s Part 36 offer.

 

http://www.opusip.co.uk/2017/12/17/3266-html/

 

WHITE & ANOR v PSM RESIDENTIAL FINANCE LTD & ANOR, QBD (TCC), 13/12/2017

In this case serious allegations had been made against the Defendants without any sustainable evidence in support. Unreasonable conduct, taking the case out of the norm, leads to an award of indemnity costs.

 

WHALEYS (BRADFORD) LTD v (1) GARRY BENNETT (2) JONATHAN CUBITT EWCA CA (Civ Div) 15/12/2017

Reiterates the exceptional test as being ‘one that takes the case out of the norm’. Ordinary behaviour does not render it reasonable.


https://www.exchangechambers.co.uk/james-malam-indemnity-costs-court-appeal-case/

 

GSD LAW LTD v CRAIG WARDMAN OF ST GOBAIN BUILDING DISTRIBUTION & ORS (2017) CA (Civ Div) 15/12/2017

The perils of inflating costs in schedules are highlighted here. It is not unusual when drawing a bill to come to a figure less than set out in an informal schedule. Often, however, this may be the case of costs being taken from a ledger, which would include non-recoverable work.

 

The case highlights (amongst other things) the importance of having a proper bill in the first instance. The judge found the allegations against the firm proven, and concluded that an appropriate sanction was to disallow all costs on the sample files under CPR r.44.11(2).

 

ALINA BUDANA (Appellant) v LEEDS TEACHING HOSPITALS NHS TRUST (Respondent) & LAW SOCIETY (Intervener) CA (Civ Div) 05/12/2017

During detailed assessment, an issue arose as to whether the purported assignment of an original CFA was legally effective. The purported transfer of a CFA to a second firm in respect of a PI claim resulted in a novated contract rather than an assignment; for the purposes of the transitional provisions of the LASPO 2012 s.44(6), the success fee payable to the second firm was payable under the CFA.

 

https://www.4newsquare.com/wp-content/uploads/2017/12/Court-of-Appeal-Judgment-Budana.pdf

 

http://www.zenithchambers.co.uk/current-awareness/personalinjury/%E2%80%8BTo%20Me...To%20You...%20–%20Assign%20Of%20Things%20To%20Come%20–%20Budana%20and%20CFA%20Assignment%20in%20the%20Court%20of%20Appeal

 

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Withdrawal of CANH, Expert ‘Shopping’, Information to be given to Patients & Limitation Points


NHS TRUST v (1) Y (BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR) (2) Y

QBD, 13/11/2017

Not mandatory to seek the court's consent to withdraw clinically assisted nutrition and hydration (CANH) where clinical team and patient's family agreed that it was not in the patient’s best interests to continue to receive CANH.

 

D (A CHILD BY HER FATHER & LITIGATION FRIEND MR S) v CHAPMAN & ANOR

QBD, 10/11/2017

All is not lost if you obtain unsupportive medical evidence. A second opinion can be relied upon so long as the unfavourable opinions are served and that there is good reason for having sought a second opinion, with the instant case involving complex and highly controversial causation issues.

 

https://www.parksquarebarristers.co.uk/news/expert-shopping-considered-fiona-ross/

 

RAUL GUIU GALLARDO v IMPERIAL COLLEGE HEALTHCARE NHS TRUST, QBD 08/12/2017

Damages awarded to a patient who did not find out the real nature of his condition until 9 years after surgery to remove a malignant tumour. Seemingly in this case whilst it was recorded that there would be some flexibility as to timings for giving information, 9 years was not within the realms of flexibility. Had the patient been aware of the malignancy and risk of recurrence, he would have had the opportunity for regular monitoring and the chance to improve prognosis.

https://www.enablelaw.com/consent-medical-care-gallardo-v-imperial-college-healthcare-nhs-trust/

 

http://www.dailymail.co.uk/wires/pa/article-5160141/Damages-man-hospital-failed-tell-cancer.html

 

CHIEF CONSTABLE OF GREATER MANCHESTER v ROBERT CARROLL

CA (Civ Div) 01/12/2017

The perils of doing too good a job. As part of his training for and undercover work posing as a drug user, the police officer handled and heated heroin, ultimately leading to heroin addiction and psychiatric illness. The exercise of discretion under the Limitation Act 1980 s.33 enabled the former police officer to claim damages accordingly.

http://www.manchestereveningnews.co.uk/news/greater-manchester-news/police-work-addicted-heroin-former-13981691

 

(1) GOVERNORS & CO OF THE BANK OF IRELAND (2) BANK OF IRELAND (UK) PLC v WATTS GROUP PLC QBD (TCC)12/07/2017

An interesting read for expert witnesses out there as expert Quantity Surveyor resists negligence claim by two banks following expert’s report on a borrower's cost estimates for a building development. It was found that the expert had not fallen below the standard to be expected, with reference to the fact that his role was to assess the reasonableness of the figures provided by the borrower and not to make a detailed calculation himself.

 

http://www.civillitigationbrief.com/2017/10/08/the-bank-of-ireland-round-two-appropriate-sums-for-an-interim-payment-on-account-of-costs-indemnity-costs-ordered-because-of-conduct-of-expert/

 

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Exaggeration of Symptoms & Fraudulent Claims

 

AVIVA INSURANCE LTD v ALEKSANDAR KOVACIC QBD, 07/11/2017

Another case of exaggeration of continuing symptoms; allegations of contempt of court were proved to the criminal standard as surveillance evidence showed PI Claimant lied and falsely represented continuing symptoms.

 

http://www.anthonygold.co.uk/wp-content/uploads/2017/11/Aviva-v-Kovacic-2017.pdf

 

ADVANTAGE INSURANCE LTD v CHRISTOPHER EWERE QBD, 16/11/2017

Another day; another Claimant falsifying his claim. Definitely one with a creative mind – after being found in contempt for falsely stating that had been in his parked car when it was struck by another vehicle.

 

https://www.forbessolicitors.co.uk/news/display/39785/dishonest-claimant-held-in-contempt-of-court

AVIVA INSURANCE LTD v AHMED, QBD, 21/11/2017

A case highlighting the problem faced by motorists with members of the public causing accidents for monetary gain. In this case, a man deliberately caused an RTA by braking suddenly in front of another vehicle.

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Letter from court = court order

Posted on 6th December, 2017

(1) PHILIP FREEBORN (2) CHRISTINA GOLDIE v DANIEL ROBERT DE ALMEIDA MARCAL (T/A DAN MARCAL ARCHITECTS) EWHC 3046 (TCC)QBD (TCC) 28/11/2017

Where a costs budget was filed 7 days before a CMC further to a court letter, rather than 21 days before in accordance with the CPR, there was no need to apply for relief from sanctions; firstly the letter was effectively a court order and could be relied upon and secondly, relief would have been granted in any event as the breach was not serious

Before continuing with the days work, I have been pondering the destruction spreading through the legal profession amid the application of fixed and budgeted costs.

 

As my colleague departs the office to do some DIY - painting at home, I thought more about how the legal profession are being stifled in their quest to do the best job possible in ever shortening time deadlines and suffocating reductions in costs.  

 

In no other industry (that I am aware of) are professionals and tradesmen expected to continuously get their work done to an ever increasing high standard within shorter and shorter timescales - all at risk of potentially not being paid at all (reference: late filing of costs budget) and if paid, at substantially lower figure than represents their time, hard work and expertise - all founded through years of training and dedication to the profession (reference - budgeted costs).

 

As a consumer, I generally get (like many others) several quotations when needing work done and choose a mid-way figure quote, based on a feel too of how well the work will be done.  If I am seeking for someone else to foot the bill at the end of the work, it would not be unreasonable for a professional third party to undertake a 'detailed assessment' of the work done and state what is reasonable for a consumer to pay (reference: old fashioned detailed assessment, which has always worked very well).

 

Imagine a scenario where a third party told the tradesman or professional what was reasonable for them to be paid at the outset - should a third party end up footing the bill.  

 

Imagine that they encountered unforeseen snags whilst doing the work and could not get on with that work without first dealing with the snags - at the risk of not being paid or being paid substantially less than equates to the time expended.  

 

Imagine them having to make an urgent application to increase the budget to a figure that would actually enable them to complete the work.  

 

Imagine how stressful this must be when the other work that they are required to do piles up (as a result of having to deal with these unforeseen issues) and they are at risk of not being paid on a further matter as they have to get their budget in on that too.. and the next one.... and the next one....  

 

Imagine their frustration at just wanting to get on with their job to the best of their ability, but not being able to do so and also having to explain matters to their very frustrated and stressed client (well court cases are generally stressful aren't they) at the same time.

 

Imagine that in other cases (where a budget isn't required), they can only get a fixed amount for doing work regardless of how long that work took.  

 

Imagine how difficult that might be for a self-employed person to budget their day to day finances at home (especially if they have children to think of) when their time input bears no relation to the pay they receive.

 

Imagine staying up till 2 and 3am to get work done.  Imagine missing family days at weekends to get work completed (and not getting paid at all - let alone overtime pay).

 

Imagine then worst of all, that having trained and worked hard for years, there simply is no way of remaining profitable and having to tell clients and employees that you are closing up shop.

 

If this applied across the board, what tragedy that would be and what a loss of fantastically skilled workmen and women in the workplace.

 

I am all for change, but only when change brings improvement and it is hard to see how fixed costs bring improvement or benefits, other than to the purses of the paying parties - and we know who they are in the main.

 

So yes, I agree with the analogy of Fixed and Budgeted costs & the North Korean missile.  That would certainly bring change.  Is that what we really wanted....

Negligence and the Medical Profession

Posted on 16th October, 2017

Many hold mixed views on this subject.  It is right, of course, that those lives who have been affected by medical negligence are taken care of as best as possible, including monetry damages to help them live to the fullest within any limitations that such negligence may have led to.  Many people, including myself, are indebted to these professional who have saved our lives or given us time and hope or fixed our broken bones or helped us see things in a different way and change our thought processes.  The list goes on... 

 

When things go wrong it is incomprehensible that this could have been through any wilful act, although from Ian Paterson and others we know that this happended, although tankfully it is rare.  When a doctor makes a mistake whilst trying to do their best for us the consequences are much more far reaching than a mistake in many other roles.  I think it is good to see thatthis is recognised and steps are being taken to encourage the best young doctors through the ranks and give them the support that they need.

 

For further reading on the development of a state backed schem, follow this link - 

http://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2017-10-12/HCWS159/

Electronic bill of costs

Posted on 29th September, 2017

Well, we have been quite on the blog side for the last month, but that doesn't mean we haven't been busy.  Quite the opposite!!

 

Despite the fact that the introduction of the new electronic bill has been delayed until next year, we have been busy working on our own version, which we hope will be as user friendly as possible and easy to navigate.

 

We are determined to ensure that our clients benefit from this new form of bill; after all, change should be a positive thing and we are certainly taking a very positive approach.  

It has been interesting and rewarding to be involved in creating this template first hand. You learn something new about excel every day!!

 

In the meantime, we are still taking instructions for costs budgets to be drawn.  As you will know, we prepare our budgets in such a way that they can easily be updated in accordance with ongoing case management and converted to an easy to follow 'phased bill' at the end of the case.

 

If you have a costs budget that needs to be prepared or a phased bill of costs, or any other costing requirement, please get in touch and we will be pleased to help you.

 

SM

Daniel Alfredo Condori Vilca & ORS v (1) Xstrata Ltd (2) Compania Minera Antapaccay SA (FORMERLY XSTRATA TINTAYA SA) [2017] EWHC 1582 (QB 30/06/2017 – An extension of time could be granted to instruct new expert, without requiring disclosure of previous evidence, so long as there were no issues as to ‘expert shopping’ or any other reason to impose a condition that the party so disclose. 

Frederik Emojevbe v Secretary Of State For Transport [2015] EWHC 1523 (QB) 22/04/2015 – Even where medical evidence confirms unfitness to attend trial, this will not give rise to an order for summary judgment being set aside pursuant to CPR 39.3.

 

Lakhani & Anor v Mahmud & Ors [2017] EWHC 1713 (Ch) – Appeal against relief from sanction refused where party files budget one day late.

 

Lucy Diamond v Royal Devon & Exeter NHS Foundation Trust [2017] EWHC 1495 (QB) 23/06/2017 – Failure to examine abdomen post-operatively negligent, but failure to obtain informed consent not negligent as surgery would still have been undertaken.

 

June Catalano v Espley-Tyas Development Group Ltd [2017] EWCA Civ 1132 28/07/2017 – For CFA’s pre 1 April 2013, success fees could continue to be recovered as costs and qualified one-way costs shifting would not apply even if the CFA was terminated and a second CFA was made.

 

STEVENSDRAKE LTD (T/A STEVENSDRAKE SOLICITORS) v (1) STEPHEN HUNT (2) STEPHEN HUNT (AS LIQUIDATOR OF SUNBOW LTD) [2017] EWCA Civ 1173 31/07/2017 –Judge wrong to hold that CFA with liquidator client had implied term that firm only paid out of litigation recovery.

 

Marsh v MOJ QBD 31/07/2017 – Some costs awarded on indemnity basis and additional awards made where claimant done significantly better than a Part 36 offer and paying party had refused mediation.

A round up of some interesting cases....

Posted on 31st July, 2017

ABC v (1) ST George's Healthcare NHS Trust (2) SW London & ST George's Mental Health NHS Trust (3) Sussex Partnership NHS Foundation Trust [2017] EWCA Civ 336

Imposing on clinicians a duty of care to disclose a diagnosis of Huntington's disease to a patient's daughter was just and reasonable, given that the condition was inherited.  

 

(1) Joanne Werb (Executor of est of George Werb (Deceased)) (2) Justin Werb v (1) Solent NHS Trust (2) The Priory Hospital Southampton QBD 15/03/2017

Secondary victim claim, whereby a second claimant had seen his son's body from a bridge before realising it was him and then returning to that scene once being made aware that his son was missing.   There was a good case to argue that the psychiatric shock resulted from the sudden, unexpected circumstances.

 

Forgery of a medical report, false claims for compensation and more.. - Forged and more

 

Ozlem upeliI & 668 Ors v Atlasjet Havacilik Anonim Sirketi[2017] EWCA Civ 1037 

Community centre meeting to enter into CFA's for class action not "excursion organised by the trader away from his business premises" for the purposes of the Cancellation of Contracts made in a Consumer's Home or Place of Work etc. Regulations 2008 reg.5(b).

 

(1) Capita (Banstead 2011) Ltd (2) Capita Hartshead Benefit Consultanta Ltd v RFIB Group Ltd [2017] EWCA Civ 1032 20/07/2017

No order for costs not wrong in principle where claimants awarded 50% of amount claimed against defendant; judge entitled to exercise discretion.

 

Briggs v CEF Holdings Ltd CA (Civ Div) 13/07/2017

Usual costs order following claimant's late acceptance of defendant's Part 36 offer (claimant pay defendant's costs following expiry of usual acceptance period) not wrong, despite uncertainty as to claimant's prognosis.

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