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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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An intersting case highlighting the real difficulties lawyers and medical experts face in medico-legal reporting.

 

Solicitors require the best medical opinion available for their clients.  Medical experts undertake medico-legal work outside of and in addition to their NHS and private clinics.  It is overtime work for professionals already working overtime... and yet the legal aid board expect experts to work over overtime at undertime rates that bear no reflection of their expertise.  Oftentimes, they ra egi8ving up pecious family evening and weekend tinemto write these reports.  It is only right that they should be rewarded for their hard work and willingness to assist in these cases.  Innocent victims should have the roght to be availaved of the best medical opinion available to them, especially in cases of catastrophic and loife changing injuries.  Thankfully, the court in AB v Mid Cheshire Hospitals NHS Foundation Trust [2019] EWHC 1889 (QB) agreed, where an appeal was dismissed in a case where there was a decision to change from legal aid to a pre-LASPO CFA.  It was submitted that the LSC were serioulsy limiting the field of available experts through the imposition of unattractive hourly rates where success hung in the balance and there were difficulties with instructing the preferred experts.  In all the circumstances, the Judge was satisfied that it was reasonable to enter into the CFA and abandon legal aid. 

 

Click here for further reading of the case - 

 

https://www.bailii.org/ew/cases/EWHC/QB/2019/1889.html

Conduct designed to convince, rather than deceive, is not fundamental dishonesty.  Whilst there had been a degree of overstatement, there had been no faking of injury - SPENCER SMITH v ASHWELL MAINTENANCE LTD CC (Leicester) 23/01/2019

 

ROBERTS v FRESSE & ANOR QBD, 18/12/2018

 

A case where relief from sanction was granted to Defendants to a PI claim despite their failure to file expert reports in time or to provide medical evidence supporting their explanation that the failure had been caused by the conducting solicitor's mental ill health - as the trial date had been preserved.

Discontinuance and costs in practice

Posted on 17th December, 2018

FINANCIAL CONDUCT AUTHORITY v (1) DA VINCI INVEST LTD (2) DA VINCI INVEST PTE LTD (3) MINEWORLD LTD (4) SZABOLCS BANYA (5) GYORGY SZABOLCS BRAD (6) TAMAS PORNYE (7) BIVONAS LAW LLP, Ch D (Nugee J) 10/12/2018

 

The Financial Conduct Authority proposed to discontinue claim against defendant law firm and declined recovery of its costs as the facts did not rebut the CPR r.39.6 presumption that when a claimant discontinued proceedings, the defendant should recover its costs unless the claimant could show a change of circumstances to which it had not contributed. There was no evidence of unreasonable conduct on the part of the defendant such as to provide a good reason to depart from the rule.

 

OBI v PATEL & ANOR (2018) QBD (Judge Cotter QC) 08/10/2018

 

Permission to rely on expert evidence in a PI quantum trial arising out of a road traffic accident was refused where the defendant had delayed, for tactical reasons, notifying the claimant of his intention to use expert evidence, and the case could be properly run on the basis of the existing evidence.

 

This case, where liability was admitted, arises from a car -v- pedestrian RTA, leading to serious bilateral injuries to both legs. 


The claimant disclosed rehabilitation documents to the defendant, which subsequently sought to rely on three experts' reports (employability; physiotherapy needs; life expectancy) and issued an application accordingly.  

 

The delay casued inconvenience and put the trial at risk.   Further, such applications had to fit with the overriding objective. 

 

It was held that the defendant's conduct had gone against the spirit of modern litigation, in remaining silent on the point at CMC's.  

 

The moral of the story is if you need expert evidence, comply with the rules and make sure you get on and get it.

 

 

BARRY FREDERICK HEWES v (1) WEST HERTFORDSHIRE HOSPITALS NHS TRUST (2) EAST OF ENGLAND AMBULANCE SERVICE NHS TRUST (3) PANKAJ TANNA [2018] EWHC 2715 QBD 18/10/2018

 

The case concerns a client with cauda equina syndrome (CES) where there was an alleged delay in surgery leading to permanent bowel and bladder dysfunction.  It was argued that after a conversation, the doctor should have contacted the hospital immediately so that assessment was expedited by the orthopaedic team leading to earlier surgery, avoiding a complete CES and permanent consequences.  In his summary judgment application, the doctor included his expert’s report which stated that no responsible GP would have contacted the hospital to expedite assessment.  Summary judgment was granted.  Ultimately, it was decided that the master had erred as the parties had not exchanged expert evidence and such an application could not be contemplated in such circumstances – before exchange.

Pride comes before a Costs Order

Posted on 26th April, 2018

(1) SHAKIR ALI (2) SHAHIDA ASLAM v CHANNEL 5 BROADCAST LTD [2018] EWHC 840 Ch D (Arnold J) 19/04/2018

 

The Claimants, in this misuse of private information case, had been successful, but had failed to beat a Part 36 offer (which in turn had failed to include/provide an apology).  

 

The lack of an apology did not impact the usual costs consequences of failing to beat a Part 36 offer or make it unjust to impose the usual consequences.

Apolog

Posted on 26th April, 2018

(1) SHAKIR ALI (2) SHAHIDA ASLAM v CHANNEL 5 BROADCAST LTD (2018)

 

[2018] EWHC 840 (Ch)

Ch D (Arnold J) 19/04/2018

CIVIL PROCEDURE - COSTS - TORTS

APOLOGIES : COSTS : COSTS BUDGETS : ESTOPPEL : MISUSE OF PRIVATE INFORMATION : PART 36 OFFERS : STATEMENTS IN OPEN COURT : VALIDITY

 

Where the claimants had succeeded in their claim for misuse of private information but failed to beat a Part 36 offer made by the defendant, the defendant's failure in the offer to provide an apology or agree to a statement being made in open court did not make it unjust to impose the usual costs consequences of failing to beat a Part 36 offer. Among other things, there was no settled practice that claimants in cases of misuse of private information were entitled to an apology or an agreed statement in open court.

 

The court was required to rule on costs after giving judgment in favour of the claimants in their claim for misuse of private information against the defendant broadcaster.

Proceedings were issued in June 2016. On 27 September 2017, the defendant's solicitors made a Part 36 offer. The claimants' solicitors replied on 12 October, noting that the offer was monetary only, that no apology had been offered and that the defendant had not acceded to a request to give an undertaking not to broadcast again the TV programme complained of. The claimants' solicitors also asserted that they were not in a position to assess the monetary offer without the disclosure of viewing figures for the programme. The defendant's solicitors replied on 17 October. No apology was offered, but they did state that the defendant would be prepared to undertake not to broadcast again the segment of the programme that featured the claimants. In addition, viewing figures were provided. The case proceeded to trial. The claimants succeeded but failed to beat the amount offered in the Part 36 offer.

HELD: Costs to 18 October 2017 (date of expiry of Part 36 offer) - The claimants had succeeded in their claim and were entitled to their costs for this period (see paras 34, 36 of judgment).

Costs from 18 October to 8 November 2017 - The claimants were entitled to their costs for this period also. The defendant's solicitors' letter of 17 October 2017 amounted to an improved Part 36 offer such that the 21-day period started to run again. That was because the letter offered an undertaking, which addressed for the first time the non-monetary relief sought by the claimants, namely an injunction to restrain further broadcasting of the information complained of (para.38).

Costs after 8 November 2017 - The usual consequence of failing to beat a Part 36 offer should apply: the claimants should pay the defendant's costs. The claimants had argued that the letter dated 27 September 2017 was not a valid Part 36 offer, as it contained an offer to settle their claims by paying them jointly the sum in question, whereas they had distinct individual claims. That submission could not be accepted. First, while the claimants' claims were technically distinct individual claims, they were parallel claims made by a married couple arising from the same events. Although the claimants were not necessarily entitled to the same sum by way of damages, they presented a united front throughout the litigation and could have agreed the division of the sum between them. Thus, the mere fact that the sum was offered to them jointly did not mean that the offer was not made in accordance with CPR r.36.5. Second, the claimants were estopped from challenging the validity of the Part 36 offer. The letter dated 27 September 2017 stated that it was made in accordance with Part 36 and that it was intended to have the usual consequences of a Part 36 offer. It also invited the claimants' solicitors to respond promptly if they thought that the offer was defective. No suggestion was made that the offer was defective. On the contrary, the claimants' solicitors treated the offer as a valid Part 36 offer, Seeff v Ho [2011] EWCA Civ 401 followed. The claimants had also argued that it would be unjust for the usual consequence of failing to beat a Part 36 offer to apply. In that respect, they relied on the defendant's failure to disclose the viewing figures for the programme. However, the absence of that information did not justify the claimants' failure to accept the sum offered. In any event, the information was disclosed in the letter of 17 October 2017. The claimants also relied on the defendant's failure to offer an apology or to agree to a statement in open court being made. However, that did not justify the claimants' failure to accept the improved offer. First, there was no settled practice that claimants in cases of misuse of private information were entitled to an apology or an agreed statement in open court. Second, the claimants could have applied to make a unilateral statement in open court. Third, damages for misuse of private information were compensatory, not vindicatory (paras 40-45, 47-48, 51-52).

Effect of defendant's failure to file or serve costs budget - The defendant had failed to comply with a direction to file a costs budget. The usual consequence of that failure should apply: the defendant was only entitled to 50% of its assessed costs after 8 November 2017 (paras 53-56).

Costs determined

Counsel:
For the claimants: William Bennett , Felicity McMahon
For the defendant: Tom Blackburn

Solicitors:
For the claimants: Hamlins LLP
For the defendant: Lee & Thompson LLP

 LTL 20/4/2018

BROOM & ANOR v ARCHER & ORS, QBD (TCC) (Fraser J) 28/03/2018

 

This case highlights the importance of compliance with practice directions.  

 

A costs budget approved by the court in April 2017 had a mathematical error (which is not unusual when parties are frantically re-casting figures whilst in court).  As the budget was not re-filed and re-served with re-cast figures and annexed to the order, the error was not noticed until some time later.  Fortunatley, on this occasion, a revised costs budget was approved owing to significant developments in the case.

The importance of serving Notice of Funding

Posted on 20th March, 2018

NEVILLE SPRINGER (PERSONAL REPRESENTATIVE OF THE ESTATE OF WAYNE ANTHONY SPRINGER, DECEASED) v UNIVERSITY HOSPITALS OF LEICESTER NHS TRUST [2018] EWCA Civ 436 15/03/2018

 

Do not forget to serve Notice of Funding as soon as possible.  Rely at your peril on the words "in any event either within 7 days of entering into the funding arrangement ... or in the letter of claim".

 

 

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