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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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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.

I am often asked questions about the fixed costs regimes.  As a costs draftsman, I rarely have the need to be involved in fixed costs, for obvious reasons.  I thought it may therefore be beneficial to clients to post information on decisions of significance.

 

You may find the decision in this case of interest, whereby the Claimant's solicitors were able to keep Stage 1 fixed costs in circumstances where the matter was not further progressed on the basis that the aim of the protocol was to ensure that they were paid for work done during each stage:

 

JC & A Solrs Ltd v (1) Andeen Iqbal (2) EUI Ltd, C & A Solrs Ltd v (1) Lucas Lonsdale Smith (2) EUI Ltd, JC & A Solrs Ltd v (1) Holly Pitts (2) EUI Ltd [2017] EWCA Civ 355

 

Please also see articles of interest leading up to this;

 

https://www.lawgazette.co.uk/strategic-litigation-over-stage-1-costs/5054661.article

 

https://h-f.co.uk/knowledge/horwich-farrelly-takes-on-the-400-club-and-wins-round-one/

 

 

 

 

 

 

 

 

 

 

 

 

Friday afternoon has rolled around again in no time.

 

Despite my well founded intention to tweet every day and write regular articles, this has not yet come to fruition, but I am working on it....

 

The frenzy surrounding costs budgets seems to have died down for now and I haven't used my crystal ball for a while.  It is refreshing to catch up on some general costs issues and review the latest round of cases, a cpuple of which are set out below.

 

Happy reading and have a great weekend all.

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KIMATHI & ORS v FOREIGN & COMMONWEALTH OFFICE [2017] EWHC 939

QBD (Stewart J) 27/04/2017

 

Relief from sanctions refused after Applicants sought relief after cut off date for their claims to be added under group litigation order - Denton test applied - no good reason for default.

 

EMW LAW LLP v SCOTT HALBORG [2017] EWHC 1014 Ch D (Newey J) 04/05/2017

 

An interesting case where solcitor agents had carried out work for the solicitor in a successful claim.  In relation to recovery of their costs, the agents were entitled to disclosure of documents relating to settlement of the solicitor's clients' costs and the solicitor could not rely on without prejudice rule to withhold disclosure.

 

 

 

 

 

 

Fixed costs; the debate goes on

Posted on 5th May, 2017

Whatever your view on fixed costs for clinical negligence cases, it certainly continues to spark debate.

 

Concerns include that it will hinder access to justice for the most vulnerable and that the system needs overhaul before a pricing structure is fixed, there is certainly much to consider.

 

As always, the costs landscape is continuously evolving and doubt remains as to whether it is ever for the better or actually saves any time or costs.  Who are the winners in all of this? You decide....

 

To help you inform your view, follow the links below for further reading;

 

https://www.apil.org.uk/press-release/No-fixed-costs-without-a-fixed-system

 

https://www.newlawjournal.co.uk/content/fixed-costs-clinical-negligence

 

http://www.barcouncil.org.uk/media/565918/response_to_department_of_health_frc_consultation.pdf

The following case sets out the point that a third party can have a claim arising out of clinical negligence.

(1) Re (A Minor By Her Mother & Litigation Friend) (1st Claimant) (2) LE (2nd Claimant) (3) DE (4th Claimant) v Calderdale & Huddersfield NHS Foundation Trust (2017)

In this case, the maternal grandmother was present for the birth of her grandchild, who suffered lack of oxygen to the brain prior to and following delivery as a result of her shoulder becoming stuck and leading to hypoxic injury.  The child was floppy and pale at birth and required resuscitation.  The maternal grandmother had witnessed the whole birth.

Negligence was established, as was the triggering of the mother's PTSD by the traumatic birth; the mother thought her child was dead.

The maternal grandmother also thought the child was dead and PTSD was also established.

 

ANGEL GROUP LTD & ORS v DAVEY Ch D (A Hochhauser QC) 28/03/17

 

Fail to disclose information and conduct yourslef dishonestly and you mat face an order for indemnity costs.

 

RE Z (A CHILD) [2017] EWCA Civ 157 CA (Civ Div) (Longmore LJ, Macur LJ) 28/03/2017

 

Determining which party should bear the cost of translating documents in public law proceedings depends on the circumstancess.

 

OMV PETROM SA v GLENCORE INTERNATIONAL AG [2017] EWCA Civ 195 CA (Civ Div) (Sir Geoffrey Vos C, Kitchin LJ, Floyd LJ) 27/03/2017

 

Enhanced interest in respect of damages and costs pursuant to CPR r.36.14(3)(a) and r.36.14(3)(c)  can reflect the court's disapproval of unreasonable conduct.

 

Also follow this link http://www.civillitigationbrief.com/2017/03/28/interest-on-damages-after-failing-to-beat-a-claimants-part-36-offer-the-aim-is-to-encourage-good-practice-and-not-simply-to-compensate/ 

 

Supreme court's support for CFA assignmenthttp://gazettenewslaw.blogspot.co.uk/2017/03/relief-for-claimant-solicitors-as.html

 

 

 

 

 

 

Case on Relief From Sanctions - 

Chancery Division decision

SIMON PATTERSON (TRUSTEE IN BANKRUPTCY OF GEORGE SPENCER v GEORGE SPENCER & 5 ORS (2014)

 

Case on video surveillance evidence

MATTHEW HICKS v PERSONAL REPRESENTATIVES OF IONEL ROSTAS (Deceased) & MOTOR INSURANCE BUREAU (2017)

 

 

Mr Paul Fenton has recently joined the partnership and his current practice involves complex lower limb trauma, post-trauma limb reconstruction and foot and ankle surgery.

 

Mr Fenton is looking forward to working with our clients to deliver his expert medico-legal opinion in a variety of cases.

 

If you are interested in instructing Mr Fenton, please get in touch through the partnership for more details.

 

For updates on the recovery of costs in funding arrangements taken out shortly before the changes implemented on 1 April 2017 and the continued changed to the costs landscapes, please follow these links;

 

https://twitter.com/smlegalservices/status/840152953373712384

 

https://twitter.com/smlegalservices/status/840180854219538432

 

SHACKLETON & ASSOCIATES LTD v (1) ALI MARZOOK ALI BIN KAMIL AL SHAMSI (2) MOHAMMED ALI MARZOOK ALI BIN KAMIL AL SHAMSI (3) MARZOOK ALI MARZOOK ALI BIN KAMIL AL SHAMSI  [2017] EWHC 304 QBD 23/02/2017

 

An interesting case on costs where a company owned by a solicitor providing arbitration services was represented by that solicitor  to enforce an arbitration award in respect of its fees - it being unusual for a lawyer to provide his services as an unpaid litigant.

 

A reasonable and fair amount could be recovered in respect of the services, as the time spent on the claimant's pursuit of its fees could have been devoted to other cases and to disallow time would risk a result not consistent with justice.   The determination of a reasonable and fair amount was a matter for detailed assessment.

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