News Category 3
Sheard -v- Cao Tri Do [2021] EWHC 2166 (QB) - Nicholas Dobbs, Temple Garden Chambers
17/09/21. Sheard -v- Cao Tri Do [2021] EWHC 2166 (QB) provides an instructive example of the difficulties in negligence claims of resolving conflict between witness evidence and contemporaneous medical notes, especially when memories of crucial conversations have faded.
In Sheard, the claimant claimed damages for personal injury and other losses arising out of alleged clinical negligence on the part of two defendants. The claim against the second defendant settled and so the claim proceeded only against the first defendant, a General Practitioner. Liability and causation were disputed. The claimant was seen by the first defendant, claiming that he presented with severe neck and shoulder pain, together with a two-week history of a pyrexial viral illness such that he should have been referred to hospital. He alleged that this failure amounted to a breach of duty of care. The dispute over liability rested significantly on what was said in that consultation about the symptoms and their duration. By the time of the hearing in April 2021, that consultation had taken place well over 6 years ago.
The notes made by the first defendant during the consultation were obviously of crucial importance. The critical passage stated, “for past 2 weeks, been unwell with viral illness – pyrexia and dizziness.” The claimant argued this was an unambiguous statement that at the time of the consultation, he had been, and still was, unwell with a pyrexial illness. The first defendant disputed this, arguing that that was not the correct interpretation of the note. He accepted however, that given the length of time which had passed since the consultation, he had no particular recollection of the claimant or of the consultation itself. The Judge was referred to the line of authority including Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3650 (Comm) and R (Dutta) v GMC [2020] EWHC 1974 (Admin). The principles derived from those cases are usefully summarised in some detail from paragraph 39 onwards in Sheard.
HHJ Robinson held that the evidence was “all one way apart from the interpretation put on the relevant note by the defendant”. His Honour was satisfied that: (1) the claimant told the defendant that for the past two weeks he had been unwell with a viral illness which, as interpreted by the defendant, included symptoms of pyrexia and dizziness; (2) the note made by the defendant accurately recorded that history; (3) the defendant knew at the time he made the note that he was recording the presence of an ongoing complaint. This interpretation was held to be consistent with Gestmin, and in particular, there was no need to “strain to interpret the ordinary and natural meaning of the recorded complaint”. The fact that the defendant recorded “no red flags of note” did not alter this; there were ‘red flags’, but the evidence as a whole tended to suggest that he failed to appreciate their presence.
Accordingly, the defendant was held to be in breach of his duty for failing to refer the claimant to hospital at the conclusion of the consultation. Practitioners may find both the summary of relevant principles at paragraph 39 useful and the application to this case insightful.
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Axnoller Events Ltd -v- Brake [2021] EWHC 2362 (Ch) - Nicholas Dobbs, Temple Garden Chambers
15/09/21. In Axnoller Events Ltd -v- Brake [2021] EWHC 2362 (Ch), HHJ Matthews (sitting as a Judge of the High Court) carried out a summary assessment of the costs of an application dealing with various issues that had arisen in the proceedings. Of particular interest, the Court was asked to consider whether the charging rates for London solicitors were appropriate for this case.It had been determined in an earlier decision that the Mr and Mrs Brake would pay 50% of the costs of the application, to be assessed on the standard basis (see [2021] EWHC 2343 (Ch)). Amongst other matters, they argued that the charging rates for their opponent’s London solicitors,[1] who relied on the 2021 guideline hourly rates due to come into force on 1 October 2021, were excessive.
It was argued in response that the litigation was legally and factually complex, justifying the instruction of London solicitors and their charging rates, consistent with the approach in Wraith v Sheffield Forgemasters Ltd [1997] 1 WLR 132. HHJ Matthews accepted that the litigation as a whole was peculiarly wide ranging, factually complex and, to some extent, legally difficult. The application was ‘document heavy’, in part because of material adduced by the Brakes. In addition, one of the applications involved a wholly new area of law. It was held that while instructing London solicitors may have been more expensive than provincial solicitors, that by itself did not make their retainer unreasonable when assessing costs.
HHJ Matthews followed the reasoning in Wraith v Sheffield Forgemasters Ltd, in which Kennedy LJ (at [141] of that case) set out matters that the court should take into account when considering the reasonableness of the decision to instruct particular solicitors. These included the importance of the matter to the instructing party, as well as the legal and factual complexities of the case.In Axnoller, the property that was the subject of the possession claim was worth several million pounds. It was reiterated that the factual background was complex, parts the claim legally complex, and that the matter was being tried in the High Court rather than the county court, all of which favoured the view that the decision to instruct London solicitors was reasonable.
HHJ Matthews accepted that the 2010 summary assessment guidelines were now “well out of date” and of little assistance in this context. Further, although the new 2021 guidelines had not yet come into force, they had already been approved by the Master of the Rolls and, it was recorded, had already been used in summary assessments in the High Court (ECU Group Plc v Deutsche Bank [2021] EWHC 2083 (CH), was cited as an example). The new guidelines were therefore taken into account. However, the rates claimed in this case were still considered “well over the top, even for London firms” and HHJ Matthews went on to review whether the amounts charged went beyond what was appropriate for the case (see [10] to [14]).
HHJ Matthews acknowledged that the summary assessment of costs was not expected to be a ‘line-by-line’ billing exercise like a detailed assessment, but nevertheless, there were grounds to consider the amounts charged excessive in the sense that (i) the hourly charging rates should have been lower, (ii) the work done on documents was significantly more than it should have been, and (iii) the attendance at the hearing of one or other of senior and junior counsel should not have been charged for. Accordingly, the costs awarded were significantly less than the total initially claimed, and the case provides an instructive example of the way in which the court may approach summary assessment where the decision to instruct London solicitors is in issue.
[1] The charging rates were £695 for Grade A, £525 and £445 for Grade B, £370 and £325 for Grade C and £210 for Grade D.
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What Has Been the Impact of the Pandemic on Paralegals? - Amanda Hamilton, NALP
31/08/21. Within the legal profession it has long been regarded that paralegals are the support staff to solicitors, since many are graduates who are seeking to become solicitors at the end of day. Arguably, they accept the role of paralegal within the firm to gain experience and with the hope that eventually they will be offered that very important training contract. Unfortunately, evidence indicates that in many cases these employees are the expendable ones and have borne the brunt of any necessary redundancies.
The above is a general observation, and of course there are exceptions within the legal sector and specifically within personal injury firms. Firms that have valued their paralegal staff in the past have maintained that level of recognition and continued to value their services. Since paralegals are charged out at a lower fee to clients, it makes sense to help clients who are financially stretched to offer legal assistance at this level.
In other sectors, however, this doesn’t appear to be the case. Organisations in the private or public sectors with in-house legal departments employing paralegals have been able either to keep them on furlough or continue to utilise their services to help them through the difficult process of financial survival through the pandemic.
NALP is the longest running professional membership body for paralegals in England, so we have gained an insight into the lives of our members and how they have been affected by the pandemic and lockdown generally. It appears that those who have been hardest hit by redundancies are the ones who have gained paralegal positions within a solicitors’ firm. Others who work in-house have tended to be furloughed, and the paralegals who have become independent paralegal practitioners, including those focused on personal injury, are the members that have thrived during these unprecedented times. Consequently, the assumption that can be reached from this is that it is due to the cost of instructing solicitors or barristers at a time when so much hardship has caused financial stress for many consumers.
Consumers are beginning to understand that approaching paralegals for assistance makes financial sense. Since most legal work, including a large proportion io the work required for personal injury claims, can be performed by paralegals, there is huge scope for paralegals and PI firms employing paralegals to assist consumers.
The plain fact is that since legal aid was virtually eradicated in 2013, consumers have struggled to access justice. Paralegals who have proven qualifications and have provided evidence of their competency can apply for a Licence to Practise. Once attained, they can offer legal services directly to consumers.
Such independent paralegal practitioners are now filling the gap left by the eradication of legal aid. They provide access to justice at a reasonable cost.
Of course, this does not detract from the fact that many solicitors and barrister offer pro-bono work, which is highly commendable. However, the extent of such pro-bono work is stretching the profession, causing immeasurable delays in the courts (as there are so many more litigants in person) and is surely unsustainable for the profession in the long run.
Thus, although the paralegal sector has suffered losses during the pandemic, in much the same way as many other sectors, the fact that they have been offering consumers and businesses an affordable alternative when it comes to legal issues has stood them in good stead during these troubled times. I also believe it will serve them well as emerge, slowly but surely, from the pandemic.
To find a paralegal to assist your PI business, or if you are a consumer looking for a specialist personal injury paralegal, you can search on the NPR (National Paralegal Register).
ABOUT THE AUTHOR
Amanda Hamilton is Chief Executive of the National Association of Licensed Paralegals (NALP), a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its Centres, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional.
See: http://www.nationalparalegals.co.uk
Twitter: @NALP_UK
Facebook: https://www.facebook.com/NationalAssocationsofLicensedParalegals/
LinkedIn - https://www.linkedin.com/in/amanda-hamilton-llb-hons-840a6a16/
Image: free use from pixabay.com/photos/covid-coronavirus-test-swab-5027031/
A reply must be consistent with the pleadings: R5 Capital Ltd v Mitheridge Capital Management LLP [2021] EWHC 2316 (Ch) - Rochelle Powell, Temple Garden Chambers
26/08/21. The Defendant applied for security for costs and an order to strike out aspects of the Claimant’s statements of case. Both applications were successful. In relation to the pleadings, the Defendant argued that parts of the Reply were incompatible with the claimant’s pleaded case. Deputy Master Raeburn agreed, highlighting that the rules require a reply to be consistent with an earlier statement of case.
Strike Out Application
The Defendant sought an order compelling the Claimant to produce draft amended Particulars of Claim setting out any case based on its “subsequent subscription” argument, failing which paragraph 20(b) of the Reply is struck out, together with consequential orders.
The basis of the Defendant's application was in essence, that the Claimant's Reply was inconsistent with its Particulars of Claim, in breach of paragraph 9.2 of Practice Direction 16. It was said that the Claimant's Reply introduced a new case that “the investment in TFO was a subsequent subscription” which was contrary to the Claimant's Particulars of Claim and the Claimant's Response to the Defendant's RFI, which states that “The Claimant does not rely upon the Fund II Investment as being a “subsequent subscription”.
The applicable principles are set out at paragraph 9.2 of Practice Direction 16 which provides that: “A subsequent statement of case must not contradict or be inconsistent with an earlier one; for example, a reply to a defence must not bring in a new claim.” The Defendant also referred to the judgment of Mr Justice Pepperall in Martlet Homes Ltd v Mullaley & Co Ltd [2021] EWHC 296 (TCC), at paragraph...
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Dishonest claim or dishonest claimant? The correct application of section 57: Michael v Hurford Ltd (t/a Rainbow) [2021] EWHC 2318 (QB) - Rochelle Powell, Temple Garden Chambers
24/08/21. The Claimant brought a successful claim for damages for personal injury arising out of a road traffic accident. However, it appeared that certain elements of the claim were pursued inaccurately on the claimant’s behalf. The Defendant appealed on the grounds that the Recorder had been wrong not to make a finding of fundamental dishonesty.
At first instance
Although dishonesty was not pleaded by the appellant, it was repeatedly put to the Claimant that he was dishonest and lying in his evidence and that some of the documents were fraudulent. In particular, there was a claim for 8 physiotherapy sessions at £100 per session in the particulars of claim. This head of loss was supported by documentary evidence consisting of an invoice and a 2 page report or summary which was accompanied by detailed notes of some 8 treatment sessions seemingly compiled by the physiotherapist. In cross-examination, the Claimant was asked about the physiotherapy treatment and confirmed he had attended only one session.
There were a number of other inconsistencies between the Claimant’s pleaded case and his evidence during cross-examination. The Recorder concluded that the Claimant was “clearly unfamiliar with parts of his witness statement… he gave the impression of really not knowing what day of the week it was sometimes. However he was able to give an account of certain other aspects.” The Recorder also noted that “in certain respects his [the Claimant’s] witness statement appears to have been filled in using phraseology with which he was unfamiliar…” He found that the Claimant’s oral evidence in cross-examination was honest and accurate and he was not “basically fraudulent”. Although his witness statement did not explain everything about the claim accurately and fairly, he happily volunteered information asked of him in cross-examination, including information that did not assist his claim – such as the fact he had...
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