News Category 2
Editorial: Dishonesty, Allocation and Fixed Costs - Aidan Ellis, Temple Garden Chambers
27/07/15. The interplay between fixed costs and qualified one way costs shifting creates an interesting imbalance with regard to low value cases in which dishonesty is alleged. If a new personal injury is allocated to the fast track, the fixed costs regime will apply and, absent exceptional circumstances, the Claimant’s profit costs on a road traffic accident claim which is resolved at trial will ordinarily be limited to £2,655 plus 20% of damages. Should the Defendant succeed, its costs ordinarily cannot exceed the amount which would have payable to the Claimant in costs and are unenforceable anyway due to one way costs shifting. However, if the Claimant is found to be fundamentally dishonest, not only do the costs become enforceable but they can also be assessed on the standard basis without reference to fixed costs (see CPR 45.29F(10)). The result is that where fundamental dishonesty is the only defence (leaving out of account those cases in which the Defendant succeeds because the Claimant has failed to prove his case), if the Claimant succeeds he is restricted to fixed costs but if the Defendant succeeds it is entitled to costs in full.
This does appear to create an imbalance in the resources which the parties can deploy (or at least hope to recover) in relation to fundamental dishonesty. One response might be that the Claimant is only actually penalised if he/she is found to be dishonest. But in cases where the Claimant is not found to be dishonest, he/she may have expended considerable resources in rebutting the Defendant’s allegations which the fixed costs regime does not allow him/her to recover. Cases in which dishonesty is alleged do require more work; for instance, the disclosure typically sought where dishonesty is alleged is significantly more onerous than in a straightforward liability dispute. Under the current regime, only the Defendant can automatically recover those costs.
Is there any solution to this problem? The imbalanced costs position lends some weight to the old argument that cases in which dishonesty is alleged should be allocated to the multi-track. But the rules provide that cases that are fast track in value should be allocated to the fast track unless “it cannot be dealt with justly on that track”. Whilst it is arguable that the rules create a inequality of arms such that a fair hearing cannot occur on the fact track, the rules impose a high threshold before the Court will allocate to the multi-track. Moreover, courts have grown accustomed to hearing such allegations on the fast track and there is likely to be an institutional reluctance to allocate all cases in which dishonesty is alleged to the multi-track.
An alternative is to argue that allegations of dishonesty constitute exceptional circumstances such as to allow the Court to award the Claimant more than fixed costs pursuant to CPR 45.29J. This possibility cannot be ruled out; if the Defendant had alleged dishonesty in such a way that numerous factual allegations, new witnesses and tangential points had to be investigated, that might on the facts be regarded as exceptional. Claimants considering such an application might do well to place the Defendant on notice at an early stage. But not every case in which dishonesty is alleged can be described as exceptional and hence additional costs are not likely to be awarded routinely.
Finally, the Rules might be amended to provide that fixed costs do not apply where dishonesty is alleged. This would remove any imbalance between the parties. However, it would not always be straightforward to determine whether dishonesty was alleged; many defences put the Claimant to proof but expressly or implicitly reserve the possibility of arguing dishonesty in relation to costs. In any event, such a change would require amendment to the fixed costs regime, which is unlikely to be welcome in a climate in which the political desire is to bring more cases rather than less cases within a fixed costs regime.
Aidan Ellis
Temple Garden Chambers
Image ©iStockphoto.com/tap10
Bumper Damages Award in RTA but Final Determination of Costs Delayed; a Tale of Funding Based Deficiencies and Relief From Sanctions - Michael Fitzpatrick, John M Hayes
23/07/15. O’Brien –v- Shorrock & the MIB (2015) EWHC 1630 (QB). The Claimant had sustained personal injury and loss as a result of an RTA in 2002; a Trial had established the identity of the driver in 2011 and the action was resolved in 2012 by an Order for a lump sum payment of £1.8 million and periodical payments starting at £140,000.00 pa. The MIB were ordered to pay the Claimant’s costs.
The Claimant’s CFA had been made on the 21 October 2009, but was ‘backdated’ (to take effect from 6 November 2008 when the solicitors were first instructed). A 100% success fee was included.
The ensuing detailed assessment was something of a ‘car crash’ for the MIB and they pursued several avenues of appeal, including:
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The CFA covered only an action under...
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Memory and Clinical Negligence Trials: Tressider v Royal Cornwall Hospitals NHS Trust - Tamar Burton, Cloisters
21/07/15. In Tressider v Royal Cornwall Hospitals NHS Trust [2015] EWHC 1262 (QB) the court had a single liability issue to determine: did a child present with a visible scoliosis of the spine in November 2000 and November 2001?
The orthopaedic experts agreed that had the scoliosis been visible on either consultation there was a causative breach of duty. The court was therefore considering a factual dispute between the child’s parents and an eminent orthopaedic surgeon 15 years after the event.
The Claimant’s recollection of the first consultation was limited; he was 7 years old at the time. There were no clinical notes of the consultation. A follow-up letter to the Claimant’s GP and two notes from earlier GP assessments, which suggested scoliosis, were the only contemporaneous documents. In relation to the 2001 consultation the judge found it “remarkable” that no individual present, including the adults, had any recollection of the consultation.
Lack of memory raises specific problems for practitioners in clinical negligence cases. While defendant clinicians are able to rely on what their usual practice is, claimants (or their litigation friends) must rely on their memories and any available contemporaneous notes.
This issue of memory is often especially problematic in cases involving children or those with a disability where the disapplication of the limitation period can have an adverse impact on the parties’ recollection. An extreme example is the case of Headford v Bristol and District Health Authority [1995] 6 Med LR where a claim for a brain injured child was permitted 28 years after the impugned surgery pursuant to s. 28 Limitation Act 1980.
Claimant practitioners in cases involving catastrophic injuries are well-accustomed to constructing a positive case in the absence of direct memory. However, in cases where a claimant has capacity and the ability for recollection but is unable to remember the index event evidential gaps arise.
In spite of these problems, Tressider demonstrates that the absence of recollection is not necessarily insurmountable for a claimant. The judge found that the Claimant and his parents were truthful witnesses and resolved factual disputes in their favour. Her Honour Judge Deborah Taylor noted that it would be more helpful to their case, “and more in keeping with untruthfulness,” if the parents were able to make allegations about the second consultation with the spinal orthopaedic surgeon.
In another 2015 case, FB v Rana & Princess Alexandra Hospital NHS Trust [2015] EWHC 1536, the court also had to make a factual determination in the absence of recollection by the parties. The issue was the presentation of a 13 month old when she developed pneumococcal meningitis. As in Tressider, Mr Justice Jay found that the mother’s lack of recollection suggested that she was “basically an honest witness.” However, he gave her evidence little weight on the basis that hindsight had tainted the rest of her evidence. He was impressed by the evidence of clinicians and cautioned against a view that sparse contemporaneous notes suggested an inadequate consultation: “it is wrong to subject these quite scanty notes to overly rigorous, logical scrutiny … in my view a barely adequate, or even inadequate, note does not necessarily march arm-in-arm with a barely adequate, or inadequate, examination.”
The second issue that frequently arises for practitioners is inconsistent recollection. In Tressider, the mother’s witness and oral evidence contained an inconsistency about how pronounced her son’s curvature was and whether she had undergone an examination of her own spine. On the facts of that case, these inconsistencies were not material. However, while some judges may have been willing to overlook inconsistencies made by lay witnesses, others will not. In another 2015 clinical negligence case concerning the delay in diagnosis of pneumococcal meningitis, Wake v Johnson [2015] EWHC 276 (QB), His Honour Judge Collender QC found that the parents had unconsciously reformulated their recollection of their child’s presentation and the advice given. The inconsistencies here were far more fundamental than in Tressider. As in FB v Rana & Princess Alexandra Hospital NHS Trust¸ this judge was impressed by the defendant GP’s careful evidence and that “he did not purport to have a clear recollection of the consultation”.
For claimant practitioners considering the pitfalls of lay witness memory, these challenges may be met by taking detailed and thorough witness statements at a very early stage as well as asking for any contemporaneous documents such as diaries or letters of complaint to assist a witness’s recollection.
Simon Dyer of Cloisters appeared for the successful Claimant in
Tressider v Royal Cornwall Hospitals NHS Trust [2015] EWHC 1262 (QB).
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Have We Started Yet? Commencement of Contested Hearing and CFA Uplifts - Thomas Crockett, 1 Chancery Lane
19/07/15. When a trial begins is of obvious import to any litigant where one or more party is funded by a conditional fee agreement which provides for an uplift per CPR 45.16 and 45.17. Mrs Justice Slade in a recent appeal from Master Campbell held that a contested hearing on the issue of liability had yet to commence before a subsequent settlement.
The facts of James v Ireland [2015] EWHC 1259 (QB) are unusual but not exceptional.
On the first day of a three day trial of a personal injuries case, the claimant successfully applied for an adjournment of the issue of quantum, it being intended that the issue of liability would proceed. Unusually however, late evidence disclosed by the defendant that hitherto unidentified independent witness. To allow for a statement to be taken from the same by the claimant, the matter was adjourned to the following day. The judge asked counsel...
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MedCo Portal Update - Mark Solon, Bond Solon
18/07/15. The new system under which all expert reports in soft tissue – that’s whiplash claims to the non-medical – must be commissioned, went live on 6th April 2015, but it hasn’t all been plain sailing.
Medical experts, MROs and commissioners of medical reports had to register via the website MedCo in order to be able to provide or commission medico-legal reports in such cases.
The Ministry of Justice sees the site, which randomly allocates experts, as the way to ensure independence in the provision of medial reports, removing any perceived financial interest between the parties involved.
Many in the legal profession see the solution as a sledgehammer to crack a nut and warn that it will increase costs and complexity and remove control from the claimant over the medic instructed. They have also warned that lawyers could be driven out of the system altogether as the portal will be used for third party capture.
Before it even went a live, a group of seven personal injury firms, backed by five MROs, prepared a judicial review challenge to the scheme, claiming it will impede a claimant’s ability to prepare their own case and ultimately deny access to justice to those with personal injury claims.
Minor technical hitches bugged the system in its initial days and the Ministry has now revealed that “concerns” have arisen relating to the behaviours exhibited by some MROs which “have the potential to undermine both the government’s policy objectives and public confidence” in MedCo – the company behind the scheme.
In a statement posted on the MedCo website, Richard Mason, Deputy Director for Civil Justice at the Ministry of Justice said that established high volume MROs have registered multiple new smaller MROs.
This has the effect of further limiting client choice. And said the MoJ: “The system was neither designed nor intended to permit this type of behaviour”
Mason assured that MedCo’s application of the qualifying criteria, its user agreements and ethics policy, is able to address the abuse.
And the site informs readers that MedCo has begun auditing registered companies to ensure compliance.
It notes: ‘The MedCo board recognises that this is a rapidly evolving market and that some behaviours, may undermine the original policy intention.
‘Processes will be updated in the future to address these concerns and users will be notified.”
In addition, the board has obtained legal advice on the scope of its authority, within the legal framework set up by the MoJ, to address “emerging operational concerns”.
The Ministry said it will “follow developments closely” and conduct an evidence-based review of how the new system is operating “with a view to making adjustments if necessary”.
But for anyone thinking it will go away, the MoJ said it is “committed” to the portal’s implementation.
A statement read: “The Ministry of Justice is of the view that the system of allocation introduced on 6 April will, if given the opportunity to operate as intended, succeed in delivering greater independence whilst maintaining consumer choice, with sufficient flexibility built into the system so as not to prevent MROs from developing their practice and/or moving between tiers.”
So watch this space – and there still remains the little matter of that JR.
Mark Solon
Bond Solon
Image ©iStockphoto.com/angelhell
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