HD V Northern Devon Healthcare NHS Trust [2023] EWHC 2118 (SCCO)
A costs dispute arose from six clinical negligence claims that were brought by Fortitude Law against Northern Devon Healthcare NHS Trust.
It was considered that the work in preparing the Letter of Claim and the Schedule of Loss was excessive and disproportionate, leading to substantial reductions on time.
In the circumstances, six women (HD, HL, CB, CM, CD and CT) underwent vaginal mesh implants in the treatment of stress urinary incontinence. Complications arose from the surgery and the Claimants suffered chronic pain, and issue with mobility and sexual function as a consequence. It was the Claimants submission that they were not properly informed and consented prior to treatment.
The claims were settled pre-issue by way of mediation, and it was agreed that Fortitude Law’s costs would be subjected to detailed assessment.
The Defendant raised various issues as the reasonableness and proportionality of the costs incurred and the hourly rates claimed. The Defendant submitted given the nature of the claim, lower band 1 rates should apply, and that the Letters of Claim were unnecessary lengthy and that they did not comply with the requirements of proportionality and reasonableness (CPR 44.3). The Schedule of Loss was considered to have been over-pleaded and disproportionate when compared with the settlement sums.
Decision
Hourly Rates
The Judge considered Band 1 rates to be appropriate and allowed:
Grade A – £285.00
Grade B – £250.00
Grade D – £120.00
Letter of Claim
The Judge found that the Letters of Claim were long and duplicative in nature and that they contained excessive references to the medical records. The substantial use of precedent and the time spent by various fee earners was deemed disproportionate for the work produced. Despite the Claimant contending that such detail was materially responsible for the early settlement of the claim, the Judge considered the work disproportionate and allowed 15 hours of the 62.2 hours claimed.
Schedule of Loss
Various issues and basic errors were identified, there was a failure to separate recoverable and non-recoverable items and the Judge found that the wrong care rates had been utilised. Overall, it was held that the sums were significantly over pleaded, disproportionate, and unreasonable. In the case of ‘HD’ the Judge allowed 7.9 hours for the preparation of the Schedule of Loss of the 31.3 hours claimed.
Where there are large discrepancies been the sums pleaded in the Schedule of Loss and the settlement figure, the receiving party may be at risk of substantial reduction.
There is an expectation for the Instructing Solicitor to understand what is recoverable and what is not. Calculations undertaken must be relevant to the facts and not have been undertaken on the wrong premises.
It is vital for detailed attendance notes and for any work that has been carried out, particularly regarding calculations, to be clearly set out and justified.
How can PIC help?
PIC may provide training and feedback on the time spent and the likely recovery of the production of documents. Further, training could be provided on time recording to ensure that attendance notes clearly stipulate the work carried out and that justification is provided as to the same.
Kashera Swaby, Costs Consultant
14.12.23