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The Other Side of the Coin: Defendant Conduct and Escalating Claim Costs

Medico Legal

by Philippa Luscombe

Clinical negligence solicitors constantly hear criticismsof claimants and their legal costs. In all the ongoingdiscussions about placing a cap on the legal fees thatcan be recovered in negligence claims, it must not beforgotten that defendants have just as much powerto increase costs by their conduct as claimants do.Provisions need to be put in place to stop such conduct being rewarded where claimants are under afixed costs regime.

A recent six figure claim involving Cauda EquinaSyndrome provides a case in point. The clinical negligence team at Penningtons Manches was approached by Mr P, a man in his 50s who hadexperienced a delay in the diagnosis and treatment ofthis condition, with serious consequences. CaudaEquina Syndrome is a compression of sensitive nervesat the bottom of the spine by a prolapsed disc. It is arelatively rare condition but when present it is a surgical emergency as the longer the nerves are compressed, the more likely it is that a patient will sufferpermanent neurological damage.

At the time we were instructed, it was clear that Mr Phad significant difficulties – he was suffering fromreduced mobility, neuropathic pain, fatigue andsignificant bladder, bowel and bladder dysfunction.As is often our experience with patients suffering thepermanent effects of cauda equina syndrome, all aspects of his life had been badly affected and every daywas a struggle. Mr P had concerns about the care hehad received at the Queen's Medical Centre in Nottingham. On talking with him, it was apparent to usthat he had presented with classic ‘red flag’ warningsigns of cauda equina syndrome but despite that hehad been sent home from the A&E department.When he returned the following day, in a worse condition, he was eventually admitted and proceeded tohave surgery – but only after further delays.

We agreed that he was right to be concerned abouthis care and were instructed by him to investigate. Weobtained and reviewed his medical records and basedon these felt that he did have a case to pursue. We therefore engaged experts who between them, in addressing breach of duty and causation, advised thathis care had been substandard and that with appropriate treatment he would have made a more or lesscomplete recovery.

We presented a pre-action protocol letter of claim tothe trust and at this stage the case was dealt with expeditiously. The trust passed the letter of claim to theNHSLA (as it was) and it investigated and responded,taking only slightly longer than the protocol period todo so. It made full admissions on breach and causation and wrote a letter of apology. So far, so good. Wethen commenced investigating quantum. There wasa substantial amount of evidence to obtain – expertevidence in the fields of neurosurgery, urology, colorectal, psychiatry, pain and care as well as information about financial losses, the situation with Mr P’swork (which he was maintaining but struggling tomanage, even on a reduced scope basis) and the impact of his symptoms and limitations on his life. Weraised with the NHSLA that by the time we completed quantification, limitation would be about to expire and suggested an extension on the basis that ourintention would be to provide full, without prejudice,disclosure of our evidence to enable negotiations.This was agreed.

We subsequently disclosed a fully pleaded schedule(pleading over £1 million) and supporting expert andwitness evidence. At the time we disclosed all thesedetails, there were uncertainties about how long the-0.75% discount rate would remain in place. That and various other points were factored into our advice to Mr P about realistic settlement range – and wealso sought counsel’s opinion. Mr P was keen to ensure his financial security – particularly given his needto stop work – but also wished to be pragmatic in hisapproach. We therefore submitted a part 36 offer inthe sum of £811,750 which was towards the upperend of the range we thought might be achieved atcourt and aimed at being a starting point for negotiations.

The NHSR (as it was by then) passed the matter topanel solicitors. They asked for a three month extension of time for response to our offer to enablethem to quantify the case themselves. Our client wasamenable to that and so we awaited their response.Three months later we received an offer in the sumof £450,000 – no reasons being given for this figure.We made clear that this was wholly inadequate. In response we received an offer of £500,000 – with thesuggestion that as our client had remained in workhe ‘couldn’t be that bad’. We explained that financially he had no option but to continue in work but itwas clear on all the evidence that it was a real struggle. We sought instructions from our client and discussed again the potential range of settlement. At thattime we felt that the very worst case outcome for him(allowing for a discount rate change) would be around £650,000 but that realistically we would expect to recover at least £690,000. Our client instructedus to make a further part 36 offer at £690,000, explaining that this was our bottom line figure – whichwe did. This was rejected and the defendant’s solicitors reiterated that £500,000 was their final offer.When we questioned again the basis for such a lowoffer given our evidence, we were advised that the solicitors had not obtained any expert evidence at all inthe three month period and that the NHSR hadgiven them £500,000 as a maximum authority figurein the absence of any expert evidence.

We expressed the view that it was clear from ourevidence that £500,000 was never going to be sufficient and our disappointment that time had beenwasted. Given that they were very clear that this wastheir final offer and the expiry of limitation was approaching, we indicated that having made what wefelt was a cost protective offer, we would be issuingand serving. They then requested a further fivemonths to obtain expert evidence and review mattersfurther. Given their stance and approach, we felt thatit was not in our client’s interests to wait that long andso we issued and served proceedings. The defendantmade arrangements to have Mr P seen by some of itsexperts.

Two extensions of time for service of the defence wereagreed but the defendant’s solicitors then requesteda further extension – intimating that they had ‘new’evidence which might affect their position on liabilityand that they might seek to challenge our pleadingthat the NHS trust owed a ‘non delegable duty ofcare’ – given that the A&E care had apparently beenfrom a locum. This was despite the full admissions atthe protocol stage. Obviously Mr P was extremelyupset at the suggestion that the admissions would bewithdrawn withdrawn and that the trust might seek to avoid liability altogether. We had very limited informationfrom the other side but, on what we had, felt thattheir analysis was flawed. In the absence of knowingexactly what they were seeking, we could not immediately consent to their application for more time.Having considered the situation carefully, we agreedto consent to the application for the other side to haveextra time for their defence. Their response was thatas we had not consented immediately, we should bearthe costs of the application. We explained that we hadvery little time to respond when first approached andthat as it was their application and change of positionthey should bear the costs. The solicitors advised thatthey had clear instructions from the NHSR to takethe matter to a hearing on the costs point if we would not agree – so the listed hearing went ahead. Master Cook was extremely critical of a number of aspects ofthe defendant’s conduct and awarded all of the costsof the application to the claimant.

A defence was then received which, after all the pointsthat had been put forward, in fact repeated exactlythe admissions made previously. At that stage we reconsidered our position on quantum. Since we hadoriginally made the offer, it had become clear that thediscount rate was unlikely to change during the lifetime of the claimant’s case and he had reduced hisworking week to four days. Both of these factorsmeant that in our view the likely settlement value ofhis claim had increased. We discussed whether towithdraw our offer and make a higher one but Mr Pfelt that we had agreed that the £690,000 was a fairfigure and he would keep to that. We therefore restated the offer and gave the defendants another 21days to accept it without penalty. Only after the 21days had expired did they revert substantively and over the next couple of weeks made a number of offers increasing in small amounts. We maintained ourposition that £690,000 had always been a sensible figure and was a costs protective offer. Unless the otherside produced evidence to make us reconsider ourvaluation, we would not accept less than £690,000.Eventually the offer was accepted and to try to resolvethings, we agreed to waive any entitlement to indemnity costs for late acceptance.

Ultimately the defendant’s conduct caused a hugeamount of upset to Mr P, spoiling the effect of whathad been the trust’s initial honest and open dealingswith the claim. Mr P’s approach and offer had always been sensible and the defendant’s conduct – particularly in not obtaining any evidence to start with, setting an unrealistic reserve, trying to argue against awell-established principle of non delegable duty ofcare, and insisting on an application hearing to address costs - meant that very significant additionalcosts were incurred.

Our client had done everything he should and couldhave done only to face unreasonable behaviour whichdelayed settlement by some six months. This approach resulted in enormous distress and we can onlyhope that lessons have subsequently been learned.

Many thanks to Philippa Luscombe

This article first appeared on Penningtons Mancheswebsite - www.penningtons.co.uk

Penningtons Manches LLP is a leading UK law firmwhich provides high quality legal advice tailored to both businesses and individuals. We address thespecific objectives of each client through our flair andtechnical expertise and offer a personal servicefounded on a strong team ethic.

We have UK offices in the City of London,Basingstoke, Cambridge, Guildford, Oxford andReading, with 110 partners and over 600 people intotal. We have also established a presence in San Francisco. Our main areas of practice are disputere solution, corporate and commercial, real estate,private client and family.

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