Costs interim payments: to pay or not to pay?

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It is clear that many law firms are feeling the pinch with the slow-down in work brought about by the current corona virus pandemic. Despite efforts to increase the number of cases being heard online the number moving through the system clearly remains low. This will inevitably impact upon firms’ cash-flow. One area where Claimant solicitors will increasingly look for relief is interim payment of costs. This note will summarise the legal position in light of the High Court decision in EXK v Hampshire Hospitals NHS Foundation Trust[2019] EWHC 2751 (QB). 

Applications for an interim payment on account of costs are common in high value clinical negligence and personal injury cases. The starting point is to consider the discretion afforded to the court under Civil Procedure Rule 44.2:

(1)  The court has discretion as to—

(a)  whether costs are payable by one party to another;

(b)  the amount of those costs; and

(c)  when they are to be paid.

(2)  If the court decides to make an order about costs—

(a)  the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b)  the court may make a different order.

…

(4)  In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including—

(a)  the conduct of all the parties;

(b)  whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

(c)  any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

(5)  The conduct of the parties includes—

(a)  conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;

(b)  whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c)  the manner in which a party has pursued or defended its case or a particular allegation or issue; and

(d)  whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.

The discretion contained in CPR 44.2 is clearly wide. This was explicitly recognised by Master Cook in RXK. The case of RXKconcerned an application for an interim payment on account of costs in a high value clinical negligence case. Prior to the decision, the leading case appeared to be the County Court decision of X v Hull & East Yorkshire Hospitals NHS Trustwhere an interim payment on account of costs was allowed and permission to appeal refused by Irwin LJ. Master Cook grasped the opportunity to provide some much needed guidance in this uncertain area. Master Cook’s guidance can be summarised as:

  1. The discretion conferred by Section 51 of the Senior Courts Act 1981 and CPR 44.2 is an extremely wide one. 
  2. The meaning of ‘successful party’ or ‘unsuccessful party’ cannot be confined to a binary outcome of the whole case. 
  3. Pursuant to CPR 44.2(8), an interim payment can be made only where it has made a costs order that could be subject to detailed assessment. This is sometimes referred to as a ‘prospective’ or ‘anticipatory’ costs order. 
  4. The application should be made down to a specific date and an interim payment on account of those costs. 
  5. The court will consider the factors listed in 44.2(4) and (5) and will expect to see sufficient information to carry out that exercise. The court will not consider a test of exceptionality. The court will consider the need to preserve security for the Defendant and ensure that costs are not repaid, although an overpayment can be set-off against damages. 
  6. Relevant matters include (but are not limited to):
    1. the type of funding agreement and details of any payments made under that agreement.
    1. Whether any Part 36 or other admissible offer has been made, and if so, full details of the offer.
    1. Details of any payments on account of damages made to date.
    1. A realistic valuation of the likely damages to be awarded at trial.
    1. A realistic estimate of the quantum costs incurred to the date of the application. 
    1. Any other factor relevant to the final incidence of costs, such as the possibility of an issue-based costs order, arguments over rates or relevant conduct. 
    1. The likely date of trial or trial window.

Ultimately, in RXKthe matter was adjourned to afford the Claimant the opportunity to serve further evidence. Master Cook characterised the application as a cri de coeurfor more money by the Claimant solicitor. Practically, Claimants and Defendants should consider:

  1. Has there has been a liability admission?
  2. Has judgment has been entered on liability?
  3. Is the claim able to be quantified or is further evidence necessary? 
  4. Has the Defendant has made a realistic offer to settle the matter? In cases where significant offers have been made the court is less likely to accept a request for an interim payment. 
  5. Parties should attempt to negotiate any interim to avoid the cost of an application. 

It is clear that the court will not make an award for an interim payment on account of costs simply because a claimant asks it. Any application must be thought out and address the factors listed above. Whilst the law does allow for an award before the conclusion of litigation, pleading cash flow problems at the outset of the application is unlikely to find favour. That being said, in liability admitted cases where the security of the Defendant can be better protected such applications may increasingly find favour with judges receptive to the present difficulties. Whilst not a dilemma of Shakespearean proportions, Defendants should ready themselves for an increase in the number of applications and give careful thought to whether they can legitimately be resisted. 

Charles Austin

23rdApril 2020

Charles.austin@completecounsel.co.uk

Claire.labio@completecounsel.co.uk

Charles Feeny, Gus Baker and Sam Irving published in the Journal of Patient Safety and Risk Management

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“Charles Feeny, Gus Baker and Sam Irving have been published in the Journal of Patient Safety and Risk Management. In the April 2020 Volume 25, Issue 2, their article “Medical Accidents: a Socratic resolution?” has appeared.

The Journal of Patient Safety and Risk Management, formerly known as Clinical Risk, is an international publication. The Editor in Chief is Professor Albert Wu, of the John Hopkins University, USA. It is published online with access by subscription.  It publishes cutting edge articles in relation to patient safety and risk management.

The article by Charles, Gus and Sam discusses the response to medical accidents in the United Kingdom. They argue that the approach appears to be something which has developed in a piecemeal way.

The authors believe that the processes are now outmoded and lack a clear overview, in particular in terms of promoting better clinical management and less psychological impact on the victim.

There is specific discussion of the effect of clinical negligence litigation in terms of adverse outcomes in terms of patient safety and the psychological wellbeing of victims. The conclusion is that an overall approach has to be considered which will improve both patient safety and psychological outcomes for those injured by medical accidents.“

The article is subject to copy right but an abstract together with a link to sign up for the journal can be found here.

Statistics: just another brick in the wall

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The complex question as to when and how statistical evidence should be used in clinical negligence cases was again considered by the Court of Appeal in Schembri v Marshall[2020] EWCA Civ 358. The decision provides a helpful summary of how such evidence is to be approached and its application to individual claimants. Whilst the conclusion of the court could be read as assisting claimants through the softening of traditional rules on causation such an interpretation would be misplaced. The position remains that each case must be considered individually and that statistics amount to nothing more than one piece of evidence before the court. 

The case of Schembriwas described by McCombe LJ as being ‘highly complex, and rather puzzling’. The Claimant was the husband of the deceased who suffered a cardiac arrest and died as a result of a pulmonary embolism. The deceased had attended upon her GP (the Defendant) on the 25thApril 2014 where she was examined and informed the most probable cause of her symptoms was muscular strain affecting her hiatus hernia. The deceased died the following day at home. 

It was admitted by that the deceased should have been referred to hospital immediately. Causation was disputed by the Defendant who argued that the deceased would have died anyway even had she been referred and attended hospital immediately. 

It was common ground between the Claimant and Defendant that had the deceased been referred she would have been diagnosed as having a pulmonary embolism. Potential treatment would have been a) anticoagulation (herapin) and/or b) thrombolysis (alteplase). It was also common ground that thrombolysis would not be undertaken automatically and would only be used where the potential benefits outweighed the risks. 

Mr Justice Stewart found at first instance that had the deceased attended hospital she would have received heparin by 9pm and that this would have taken effect to prevent further clotting by midnight. 

The parties disagreed about whether the use of anticoagulation and thrombolysis would have prevented the deceased’s death. It was the Claimant’s case that if anticoagulation by itself did not resolve the pulmonary embolism thrombolysis was available and therefore on the balance of probabilities the deceased would not have died. The Defendant argued that the blood clot which embolised was present on the 25thApril and would not have dispersed with anticoagulation. 

At first instance Stewart J posed the following questions [41]:

Therefore, the central questions for the court to determine now are:

  • i)  Has the Claimant proven on the balance of probabilities that there were progressive pulmonary emboli during the night of 25/26 April 2014? [An indicator for prescribing thrombolysis]
  • ii)  If so:
    • a)  would progressive pulmonary emboli have been picked up on monitoring had she been in hospital?
    • b)  if so, would thrombolysis have been prescribed and with what effect?
  • iii)  If, the answer to (i) and/or (ii) is negative, had the deceased been in hospital, would thrombolysis have saved her? In other words, had there not been progressive pulmonary emboli, can the Claimant prove that thrombolysis would have saved her had she gone into cardiogenic shock or arrested in hospital?
  • iv)  If the answer to (i)-(iii) are negative in that the Claimant cannot prove a specific train of events or mechanism which would absent the Defendant’s negligence, have saved her. Looking at the evidence as a whole, is it nevertheless more likely than not that the Claimant would have survived had she been referred to Southend Hospital?”

Question 1 was answered in the negative therefore question 2 did not arise. The key was the answer to question 3 and this is where the court had to consider a large amount of statistical evidence. Responding, broadly, to the statistical evidence the judge reached the following conclusion [104- 105]:

a number of points can be made about [the] statistics. Nevertheless, broadly speaking, had alteplase been prescribed, say, 3 hours earlier than 8.30 a.m., Mrs Marshall would probably have survived.

That said, I have already found that it cannot be shown, the balance of probabilities, that Mrs Marshall would have reached the threshold for prescription of alteplase at any stage prior to her going into cardiogenic shock.

Addressing the evidence on cardiogenic shock the judge concluded [115 – 116]:

Looking at the evidence on cardiogenic shock in isolation, I find that:

  • i)  The Claimant cannot prove on the balance of probabilities that the deceased would have been in the 64-75% who would have survived; she may or may not have been.
  • ii)  Nevertheless, her chances of survival would have been significantly increased had she been in hospital overnight and at the time she became haemodynamically unstable.

As to the position with cardiac arrest, the Claimant submits that, because of the fact that she was relatively young and had no comorbidity, she probably would have survived with high quality CPR in hospital, and therefore have been in the group of 35% (Sekhri) – 37% (Casazza) who do not die. In my judgment, whilst this is a possibility, it is less likely than her chances of surviving cardiogenic shock – itself not a probability.

Notwithstanding the statistical evidence Stewart J found for the Claimant. The judge concluded:

The court, in looking at the evidence as a whole, must take a common sense and pragmatic approach to that evidence, in circumstances where it is equivocal. The court must also be wary of relying on the statistical evidence in the literature which has a number of variables. Had the statistical evidence, in conjunction with the expert evidence, have led to the conclusion that Mrs Marshall’s chances of dying would have been assessed on presentation as only slightly better than 50-50, I would have found for the Defendant. However, the above evidence of Professor Empey and Doctor Gomez [the Claimant’s experts], in conjunction with the medical literature, drives me to the conclusion that on the clear balance of probabilities she would have survived.

On appeal, the Defendant argued that the judge fell into error by finding for the Claimant. The Defendant submitted that the judge was wrong to find for the Claimant as it was not proven that the deceased would have survived had she been admitted to hospital. The Court of Appeal dismissed the Defendant’s appeal and concluded the trial judge was entitled to reach the decision he did. Giving the lead judgment, McCombe LJ stated:

I do not consider that the judge was in error in posing the fourth question. The Appellant’s approach would require him to have stopped at the end of question (iii), assuming that he had answered those three questions in the negative. He was entitled, in my view, to assess what he described as the “close calls” in the light of the Deceased’s overall circumstances (age, medical history, haemodynamic stability etc.) and in the light of the medical learning in cases such as this. He was right to take the “common sense and pragmatic view” of “the evidence as a whole”, as he said at paragraph 146.

In reaching this decision McCombe LJ considered in detail the appropriate use of statistics and the guidance given by Lord Nicholls in Gregg v Scott[2005] 2 AC 176 [27 – 28]:

In cases of medical negligence assessment of a patient’s loss may be hampered, to greater or lesser extent, by one crucial fact being unknown and unknowable: how the particular patient would have responded to proper treatment at the right time. The patient’s previous or subsequent history may assist. No doubt other indications may be available. But at times, perhaps often, statistical evidence will be the main evidential aid.

Statistical evidence, however, is not strictly a guide to what would have happened in one particular case. Statistics record retrospectively what happened to other patients in more or less comparable situations. They reveal trends of outcome. They are general in nature. The different way other patients responded in a similar position says nothing about how the claimant would have responded. Statistics do not show whether the claimant patient would have conformed to the trend or been an exception from it. They are an imperfect means of assessing outcomes even of groups of patients undergoing treatment, let alone a means of providing an accurate assessment of the position of one individual patient.

The Court of Appeal was also mindful of the comments of Toulson LJ in Drake v Harbour[2008] EWCA Civ 25 that a court is entitled to find that the loss ensued was probably caused by the negligence if it is of such a kind that was likely to have resulted from the negligent act. 

In the absence of any positive evidence of breach of duty, merely to show that a claimant’s loss was consistent with breach of duty by the defendant would not prove breach of duty if it would also be consistent with a credible non-negligent explanation. But where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism. That is not a principle of law nor does it involve an alteration in the burden of proof; rather, it is a matter of applying common sense. The court must consider any alternative theories of causation advanced by the defendant before reaching its conclusion about where the probability lies. If it concludes that the only alternative suggestions put forward by the defendant are on balance improbable, that is likely to fortify the court’s conclusion that it is legitimate to infer that the loss was caused by the proven negligence.

Rather than providing a sweeping change, the Court of Appeal have quietly reaffirmed the use of statistics as a means of evidence. Nothing more and nothing less. It is an approach which is consistent with the court’s overall approach to the use of statistics and epidemiology which is succinctly summed by the editors of Clerk & Lindell on Torts (22nd Edition (2018), at para. 2-30

The assessment of causation would turn upon the detailed medical evidence, both as to the overall statistical chances of survival and the particular condition and circumstances of the patient.

The decision of Stewart J, as upheld by the Court of Appeal, is an example of a blend between statistical and clinical evidence. The ultimate decision took account of the statistics but recognised the oral clinical evidence which was that it was ‘very unusual’ for a patient to die in hospital of a pulmonary embolism. Following the decision in Drakethis was sufficient to satisfy causation. Statistics therefore are just one brick in the wall of evidence before the court. 

Charles Austin

Charles.austin@completecounsel.co.uk
Claire.labio@completecounsel.co.uk

Understanding limitation moratoriums/standstill agreements

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Limitation should always be at the forefront of lawyers’ minds, but this is especially so given the difficulties being faced due to COVID-19. An understanding of the tools at your disposal should help to limit the difficulties faced and one key tool is a limitation moratorium or standstill agreement. 

The first point to consider is when a claim is brought for the purpose of the Limitation Act 1980. Practice Direction 17A paragraphs 5.1 and 5.2 answers this question in clear terms:

5.1 Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.

5.2 The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.

Given the current pressures on the court staff to arrange remote hearings it is not inconceivable that a claim form is not stamped the day it is actually received by the court. Claimant solicitors would be well advised to exercise caution and to keep records as to when a claim form was posted and therefore received. The burden of showing when the claim form was sent is on the Claimant (see Page v Hewetts Solicitors[2013] EWHC 2845 which concerns evidence of service).

It is not possible for the court to extend the limitation period in advance. In addition, outside the areas of personal injury and defamation there is no discretion to extend limitation. Accordingly, in cases where limitation is approaching but the Claimant is not ready to issue proceedings it will be necessary to consider entering into a moratorium or standstill agreement. 

Two possible types of agreement are available to parties: the first that the relevant period is suspended; the second that the relevant period is extended. Guidance on the difference between ‘suspended’ and ‘extended’ was provided by Coulson J in Russell v Stone[2017] 1555 (TCC). The court held that where the agreement is framed as a suspension then limitation will resume at the date upon which the agreement ends (in effect it freezes limitation). In contrast, where limitation is extended the period will end at the expiry of the extension. 

As a standstill agreement is a contract, which often runs to several pages, it is important to remember the principles of contractual interpretation – namely that an objective approach should be adopted and the document is to be interpreted as a whole (see Arnold v Brittan[2015] AC 1619). It is therefore important to consider whether the overall meaning is clear to the objective bystander. The use of clear language and precise dates is imperative.

What are the practical benefit of a standstill agreement? Asides from the obvious that it stops limitation running or extends limitation it will enable parties to comply with any relevant pre-action protocol. For example, the Industrial Disease pre-action protocol stipulates (at paragraph 11):

a claimant who commences proceedings without complying with all, or any part, of this protocol may apply to the court on notice for directions as to the timetable and form of procedure to be adopted, at the same time as he requests the court to issue proceedings. The court will consider whether to order a stay of the whole or part of the proceedings pending compliance with this protocol.

In addition, the Clinical Negligence pre-action protocol stipulates (at paragraph 1.6.1):

if proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Protocol, the parties should apply to the court for a stay of the proceedings while they so comply. 

Adherence to the protocol will likely save costs in the long run and ensure that any case is properly investigated before incurring the cost of issuing proceedings. 

A final point to note is that a properly drafted agreement will have the effect of estopping a defendant from raising limitation in a defence. For a claimant to assert that the defendant is estopped it will be necessary to show a clear, unequivocal and unambiguous promise (see Fortisbank SA v Trenwick InternationalLtd [2005] EWHC 399 (Comm)). 

Going forward, the following guidance points can be gleaned:

  1. Proceed with caution when sending the claim form to the court. Ensure that there is evidence of when it was sent and by what method.
  2. The burden of showing that the claim form was sent and received rests with the claimant. 
  3. A standstill agreement can either suspend the limitation clock or it can extend the limitation period. 
  4. Any agreement should be in writing with clear terms. Be precise. 
  5. The agreement is a contract and so it will be interpreted objectively. 
  6. A defendant will only be estopped from raising limitation as a defence if clear, unequivocal and unambiguous. 

Charles Austin
Charles.austin@completecounsel.co.uk

6thApril 2020

Litigation: when is it time to get up close and personal?

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The recent surge in digital communication is obviously a reaction to the lockdown. The interesting question is whether this will be a temporary phenomenon, or rather what might be seen as an overdue sea change in the use of technology in the law.

The technology which can be used to conduct meetings and indeed court hearings through video link has been widely available since the 1990’s. However, bizarrely, at the commencement of the lockdown one chambers claimed that they had conducted what they believed to be the first joint settlement meeting by video link. In my experience, negotiation through a joint settlement meeting or mediation by way of video link has been ongoing for at least the last 20 years, albeit still a very small minority of the total number of such negotiations.

This lack of use, and indeed appreciation of the use of such technology is no doubt substantially explained by inertia and conservatism in the law. The advantages of digital communication are obvious, both in terms of commercial benefit and also perhaps more importantly at this time, environmental impact. One possible positive outcome of the Coronavirus crisis, following swiftly on bushfires and floods, is that it might make more people appreciate that we cannot continue to abuse the planet in the way we do.

If digital communication is to become the norm, is it realistic to anticipate that this will extend to all aspects of litigation, to include contested hearings and trials?

Last month, Mr Justice Mostyn conducted what was said to be the first full hearing in the Court of Protection by way of video link. The Judge and the lawyers involved all considered the hearing to have been an unqualified success. Interestingly, a different view was taken by Professor Celia Kitzinger of the Transparency Project website. As reported in Legal Futures, Professor Kitzinger had spent the hearing in the company of the principal witness, the daughter of the patient who was subject to the Court of Protection hearing. The patient’s daughter, Sarah, had flown in to the United Kingdom because she expecting a face-to-face hearing. She gave evidence in a small room with her solicitor and barrister observing the social distancing rules. She was clearly dissatisfied, indeed apparently upset, about the way the hearing was conducted. She was quoted as saying:

"In a courtroom people can see body language. They can feel the pain and emotion when you speak about that moment of utter desperation that you went through. But I was in a little 1-inch box on a screen and being honest, I bet half of them weren't even engaged in looking at it – as the Judge couldn't monitor them to make sure they were paying attention."

We have the options of communicating by telephone, video link or in person, in relation to many aspects of our lives . How do we decide which is the most appropriate?

First, it is reasonable to think that an important factor is how well we know the individual in person. With those we know very well, we are quite relaxed and confident in communicating by telephone. This is because we are familiar with the person and can sense from just the tone of their voice whether there is anything beyond the mere words being used, that is being communicated. We are less able to do this with people we have not met before. Here, we need much more of an impression of the person, to include the visual clues to which the witness Sarah made reference. The screen on a video link is still not good enough to give a full impression of the facial and body language of a person speaking. I have had many conferences with experts on the telephone. I think how well I know the expert is an important component to how effective this is. I still insist on having face-to-face conferences with experts at what might be described as crucial stages in litigation. This would, in particular, be the case when the action was running towards trial. I do not just want to hear what the expert has to say, but I want to form an assessment of how he or she would come over to a Judge in cross-examination. I would not be confident of doing this on the phone.

Secondly, the sensitivity of the information to be communicated is an important factor in deciding how to do it. There is an expectation that bad news, for example a poor diagnosis or prognosis from a doctor or the loss of employment, will be communicated in person. There was outrage when certain employers decided to tell their employees that they were being made redundant by text. This represents an expectation that sensitive information with an emotional impact should be communicated in person.

These factors probably underlie the different perceptions in relation to the Court of Protection hearing. For the Judge and the lawyers it was, in effect, just another day at the office. In saying this, I am not in any way suggesting that they were being insensitive to the situation, but those of us who are habituated to the courtroom are able to feel more relaxed and confident in that environment. For the witness Sarah, however, it was an important and emotional day of her life and she did not feel that this was significantly acknowledged in the process by video link.

Therefore, whilst the increased use of digital communication is undoubtedly to be welcomed and here to stay, there will remain, in my view, limits. Certainly in the short to medium term it is unlikely that trials by video link will be deemed satisfactory to most litigants. In the long term this may change, since eventually communication by video link will be more common than communication in person, and therefore represent the norm of human contact. That day is, however, I think, a long way off. We are all missing the daily personal contact with our friends and colleagues.

Coronial Law in the wake of Covid 19

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The chief coroner has issued three sets of guidance:

  • No 34 guidance for coroners on Covid 19
  • No 35 hearings during the pandemic
  • No 36 Summary of the Coronavirus Act 2020, provisions relevant to Coroners

Perhaps the most crucial aspect of the guidance to organisations including Care Homes, Prisons, GPs, medical practitioners and NHS Trusts is:

  • a) Covid 19 is an acceptable direct or underlying cause of death for the purpose of the MCCD (Medical  Certificate of Cause of Death);
  • b) Covid 19 as a cause of death is not a reason on its own to refer a death to a Coroner under the CJA 2009, given that the same is a naturally occurring disease and is capable of being a natural cause of death.
  • c) Whilst a notifiable disease, this, however, does not mean that referral to a Coroner is required.
  • d) The Coronavirus Act expands the MCCD window from 14 to 28 days and allows a doctor who was not the attending doctor to sign the MCCD.

What reasons would require referral to a Coroner:

  • a) Medical professional unable to certify on the balance of probabilities that Covid 19 was the cause of death due to unclear cause of death or individual not seen within requisite timescales;
  • b) Concerns about delays in care or provision of care prior to death;
  • c) Failure to provide PPE or otherwise protect employees;
  • d) Deaths that automatically require an inquest to be held e.g. death in state detention;
  • e) Any other reason under the Notification of Death Regulations 2019.

It is anticipated that a) delays in the provision of care b) an inability to provide care c) incorrect diagnosis d) lack of PPE are likely to result in the largest number of referrals to Coroners, which in turn are likely to result in inquest (albeit delayed until Covid 19 is under control).

Examples that have already featured in the press, which may result in inquest are:

  • Misdiagnosis of Covid 19 by GP due to a-typical symptoms; 
  • Refusal to accept patients medically fit for discharge back into care home without Covid 19 testing (in the event that death arises from either Covid 19 or another cause for example hospital acquired pneumonia);
  • Protection of care home residents during a Covid 19 breakout; 
  • Other potential scenarios could include:
  • Failure to provide front line staff with appropriate or defective PPE;
  • Delay in providing treatment due to the need to adhere to safety guidance e.g. ensuring appropriate PPE in situ prior to commencing treatment;
  • Prioritisation of medical resources e.g. ambulance dispatch, assignment of ventilators;
  • Deployment of those who fall within ‘vulnerable’ categories to front line work e.g. recalling retired NHS workers to work in departments where there is a higher risk of contracting Covid 19;
  • Experimental Covid 19 treatment.

The Court will be alert to the national difficulties encountered and competing interests/advice. Nevertheless, cogent rationale and/or evidence in support of efforts made to reduce risk will be required. As such, if not already in place, Covid 19 risk assessments should be undertaken, Covid 19 policies put in place and, arguably most importantly contemporaneous and detailed records should be made in support of decisions or actions taken. Provided that the stance adopted is a reasonable one and can be supported evidentially, the risk of a finding of neglect should be minimal. 

Is serving medical evidence with Particulars of Claim mandatory?

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I have recently had a number of solicitor clients asking me whether it is mandatory to serve medical evidence when serving Particulars of Claim. This question has taken on a renewed importance in light of the current COVID-19 crisis as many Claimant solicitors struggle to obtain medical evidence within the limitation period. This area is one in which the rules as laid down in Part 16 and the Practice Direction to Part 16 does not always reflect the approach taken by the courts. This note will summarise the position and provide some guidance going forward.

The starting point is Part 16 of the Civil Procedure Rules:

  • (1) Particulars of claim must include –
    • (a) a concise statement of the facts on which the claimant relies;
    • (b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);
    • (c) if the claimant is seeking aggravated damages or exemplary damages, a statement to that effect and his grounds for claiming them;
    • (d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and
    • (e)such other matters as may be set out in a practice direction.

Paragraph 4.3 of the Practice Direction to Part 16 further stipulates:

Where the claimant is relying on the evidence of a medical practitioner the claimant must attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries which he alleges in his claim.

Without descending into a forensic examination of the language of the rules it is noteworthy that the use of ‘is relying’ is drafted in the present tense. The situation arises whereby a Claimant ‘will be relying’ (future tense) on medical evidence which is not available at the point of serving. It is trite to those practicing within personal injury litigation that the claim will not succeed without medical evidence to satisfy the test of causation. The rule does not make express provision for such a situation which gives rise to the possibility of an arbitrary approach.

The most recent and authoritative guidance on this question was given by Spencer J in Mark v Universal Coatings & Services Limited[2018] EWHC 3206 (QB) at paragraph 49:

It seems to me that 16 PD.4 sets a benchmark because it is a practice direction which covers all personal injury claims from the most simple to the most complicated but which, in many of the more complicated cases, is honoured more in the breach than in the observance where the parties sensibly recognise the limitations of what can be achieved at the early stage of service of the Particulars of Claim. Thus, a defendant’s advisors will often agree that service of a medical report and schedule of loss at that stage is pointless. However, as I have stated, the defendant always has the option of recourse to the court.

Spencer J made two things clear in Mark v Universal Coatings & Services Limited:first, CPR PD 16.4.3 does not contain an implied sanction and therefore the principles of relief from sanction were not engaged; second, the onus is on the Defendant to make an application, where appropriate, when there has been a failure to serve medical evidence.

Spencer J also recognised that in complex cases it will often be pointless serving medical evidence at the same time as the Particulars of Claim. Whilst the judge did not explicitly draw a line between low complexity claims and high complexity claims there is a perception that such a distinction does exist. This is so because he explicitly left the door open to Defendants to revert to the court.

How does this help a Claimant who is struggling to obtain medical evidence before the expiration of limitation or before the date for service? The Claimant can serve safe in the knowledge that they have not fallen foul of any sanction. A note of caution though, in low-value low complexity cases, typically RTAs, a Defendant is likely to make an application to strike out and/or summary judgment on the basis that the Claimant’s case, at that point in time, cannot satisfy causation and therefore has no reasonable prospect of success.

Moving forward, the following guidance and practical points can be gleaned:

  1. Whilst CPR PD 16.4.3 is drafted as a mandatory provision, it does not contain an implied sanction.
  2. Proceedings are not to be considered defective if there is no medical evidence at the time of serving the Particulars of Claim. The Claimant can rest assured that the claim has been issued and served within time.
  3. A failure to serve medical evidence at the same time as the Particulars of Claim leaves open the possibility of the Defendant making an application to the court for a strike out and/or summary judgment. If the medical evidence is served before the hearing the Defendant’s application will likely fail.
  4. A pragmatic approach should be taken by parties in light of the case at hand. Where assurances have been provided that medical evidence will be served recourse to the court by the Defendant is unlikely to be successful. This is especially important if the reason for the delay is due to COVID-19.

Charles Austin
LinkedIn

Charles.Austin@completecounsel.co.uk
Claire.Labio@completecounsel.co.uk

31stMarch 2020