Causation Disputes and Interim Payment Applications - Jennifer Danvers, Cloisters

14/05/16. In Sellar-Elliott v Howling [2016] EWHC 443 (QB) permission to appeal against an interim payment order of £100,000 was refused in a clinical negligence case where causation was in dispute. This is an important case for clinical negligence practitioners dealing with such applications prior to exchange of medical evidence. It highlights the importance of producing a proper evidential basis for pursuing or resisting such an application, even if proceedings are at an early stage.

Background

The Claimant alleged that the Defendant, a consultant radiologist who carried out a CT scan on the Claimant in 2008, had failed to report on a mass on the Claimant’s liver. In early 2012 the mass was identified as a malignant tumour as a result of which the Claimant underwent “extensive, distressing and debilitating treatment.” The Claimant’s case on causation was that had the mass been identified on the CT scan, further investigation would have led to surgical resection of a benign mass and the Claimant would not have developed liver cancer. The Claimant sought damages in excess of £630,000.

The Defendant admitted breach of duty but disputed causation; she averred that by 2008 the...

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Lord Justice Jackson Is Right: It’s Time to Extend Fixed Costs - Duncan Rutter, President of the Forum of Insurance Lawyers

13/05/16. Costs control in the civil justice system has proved a tough nut to crack. From Lord Evershed’s inquiry into English procedural reform in the 1950s, through Lord Woolf’s Access to Justice reforms in the 1990s, to Lord Justice Jackson’s review of Civil Litigation Costs in 2009, the conclusion has been the same– the litigation process costs too much. The solutions, however, have proved less easy to identify and even harder to apply.

All three of the reformers named above supported proportionality – linking allowable costs to the value of the claim. Jackson LJ aimed to achieve this by a mixture of some fixed costs, a new test of proportionality, and by case and costs management. FOIL supported those proposals, including the introduction of costs budgeting in 2013. It still supports costs budgeting, which has been effective, but it is not a panacea. Not least of the issues it raises is the pressure it places on the court system leading to very significant delays, requiring in clinical negligence a temporary halt to the process to clear the backlog. It also raises issues of front-loading of costs pre-issue, together with concerns of judicial inconsistency. The Ministry of Justice accepts that costs budgeting has not worked as well as hoped.

In January this year Jackson LJ returned to the issue of fixed costs. He has called before for fixed costs on all cases up to £250,000 but this time the call came with a draft grid and a sense of urgency. For him, the time for introducing a fixed costs regime for all cases on the fast track and the lower reaches of the multi-track “has now come” and, on timescale, “If the political will is there, the whole project could be accomplished during the course of the year.”

FOIL agrees: it too has been a long-term supporter of fixed costs, welcoming Jackson LJ’s proposals in his final report and the Government’s proposals in 2015 to introduce fixed costs in clinical negligence cases up to £250,000. Although much has been achieved with the reforms introduced to date, including fixed costs for personal injury claims in the fast track within and outside the portal, the time is now right to take a further step and introduce fixed costs for all cases on the fast track and the lower levels of the multi-track. It is right that in the multi-track fixed costs in clinical negligence cases should be part of an overall regime, not an isolated exception to the hourly rate.

The proposals on clinical negligence show the Government’s commitment to fixed costs. As Jackson LJ highlighted, it is a question of political will and it has been disappointing to see only limited activity this year on the introduction of a general regime. For Government the issue should be personal; it stands to gain both the advantages of fixed costs as a litigant, and the beneficial effect of reduced costs budgeting on court resources.

Following on from Jackson LJ’s speech, FOIL has set up a Fixed Costs Working Group to focus on the issue and examine the draft proposals in detail. The group will be working with a number of FOIL’s Sector Focus Teams, including Clinical Negligence, to develop its own recommendations on making fixed costs work. The hope is that this work will be of assistance in developing and introducing a workable fixed costs regime in the near future. It may now be expecting too much to hope that the project can be completed this year but the need for urgency is still there.

Duncan Rutter
President of the Forum of Insurance Lawyers (FOIL)
and a Partner with DACBeachcroft LLP

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Claims of Alleged Fraud Not Exempt From Denton - Ella Davis, 1 Chancery Lane

11/05/16. “The court cannot ignore that insurers are professional litigants, who can properly be held responsible for any blatant disregard of their own commercial interests.” - Gentry v Miller & Anor [2016] EWCA Civ 141 at 34. Such was the warning sent to insurers by the Court of Appeal earlier this month in allowing a Claimant’s appeal against a decision to set aside default judgment in what the Defendant’s insurer alleged was a fraudulent claim.

The Facts

The Claimant, Mr Gentry, alleged that he was in a road traffic accident with a Mr Miller on 17th March 2013 in a claims notification form valuing the claim at under £10,000. On 2nd April 2013 Mr Miller’s insurer admitted liability. On 8th April the Claimant’s solicitors wrote requesting immediate payment of the pre-accident value of his car (being £16,000) and warning that until that was received he was hiring a replacement vehicle under a credit hire facility.

Proceedings were issued against Mr Miller alone on 3rd July and on 8th August the Claimant obtained default judgement. At no point in this period did the insurer instruct solicitors and it replied to only one of seven letters.

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