The other side of the coin: defendant conduct and escalating claim costs

Posted: 21/05/2018

Clinical negligence solicitors constantly hear criticisms of claimants and their legal costs. In all the ongoing discussions about placing a cap on the legal fees that can be recovered in negligence claims, it must not be forgotten that defendants have just as much power to 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 a fixed costs regime.

A recent six figure claim involving Cauda Equina Syndrome provides a case in point. The clinical negligence team at Penningtons Manches was approached by Mr P, a man in his 50s who had experienced a delay in the diagnosis and treatment of this condition, with serious consequences. Cauda Equina Syndrome is a compression of sensitive nerves at the bottom of the spine by a prolapsed disc. It is a relatively 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 suffer permanent neurological damage.

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

We agreed that he was right to be concerned about his care and were instructed by him to investigate. We obtained and reviewed his medical records and based on 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 that his care had been substandard and that with appropriate treatment he would have made a more or less complete recovery.

We presented a pre-action protocol letter of claim to the trust and at this stage the case was dealt with expeditiously. The trust passed the letter of claim to the NHSLA (as it was) and it investigated and responded, taking only slightly longer than the protocol period to do so. It made full admissions on breach and causation and wrote a letter of apology. So far, so good. We then commenced investigating quantum. There was a substantial amount of evidence to obtain – expert evidence in the fields of neurosurgery, urology, colorectal, psychiatry, pain and care as well as information about financial losses, the situation with Mr P’s work (which he was maintaining but struggling to manage, even on a reduced scope basis) and the impact of his symptoms and limitations on his life. We raised with the NHSLA that by the time we completed quantification, limitation would be about to expire and suggested an extension on the basis that our intention 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 and witness evidence. At the time we disclosed all these details, 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 we also sought counsel’s opinion. Mr P was keen to ensure his financial security – particularly given his need to stop work – but also wished to be pragmatic in his approach. We therefore submitted a part 36 offer in the sum of £811,750 which was towards the upper end of the range we thought might be achieved at court and aimed at being a starting point for negotiations.

The NHSR (as it was by then) passed the matter to panel solicitors. They asked for a three month extension of time for response to our offer to enable them to quantify the case themselves. Our client was amenable to that and so we awaited their response.  Three months later we received an offer in the sum of £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 the suggestion that as our client had remained in work he ‘couldn’t be that bad’. We explained that financially he had no option but to continue in work but it was 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 that time 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 instructed us to make a further part 36 offer at £690,000, explaining  that this was our bottom line figure – which we 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 low offer given our evidence, we were advised that the solicitors had not obtained any expert evidence at all in the three month period and that the NHSR had given them £500,000 as a maximum authority figure in the absence of any expert evidence.

We expressed the view that it was clear from our evidence that £500,000 was never going to be sufficient and our disappointment that time had been wasted. Given that they were very clear that this was their final offer and the expiry of limitation was approaching, we indicated that having made what we felt was a cost protective offer, we would be issuing and serving. They then requested a further five months to obtain expert evidence and review matters further. Given their stance and approach, we felt that it was not in our client’s interests to wait that long and so we issued and served proceedings. The defendant made arrangements to have Mr P seen by some of its experts.

Two extensions of time for service of the defence were agreed but the defendant’s solicitors then requested a further extension – intimating that they had ‘new’ evidence which might affect their position on liability and that they might seek to challenge our pleading that the NHS trust owed a ‘non delegable duty of care’ – given that the A&E care had apparently been from a locum. This was despite the full admissions at the protocol stage. Obviously Mr P was extremely upset at the suggestion that the admissions would be withdrawn and that the trust might seek to avoid liability altogether. We had very limited information from the other side but, on what we had, felt that their analysis was flawed. In the absence of knowing exactly what they were seeking, we could not immediately consent to their application for more time. Having considered the situation carefully, we agreed to consent to the application for the other side to have extra time for their defence. Their response was that as we had not consented immediately, we should bear the costs of the application. We explained that we had very little time to respond when first approached and that as it was their application and change of position they should bear the costs. The solicitors advised that they had clear instructions from the NHSR to take the 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 of the defendant’s conduct and awarded all of the costs of the application to the claimant.

A defence was then received which, after all the points that had been put forward, in fact repeated exactly the admissions made previously. At that stage we reconsidered our position on quantum. Since we had originally made the offer, it had become clear that the discount rate was unlikely to change during the lifetime of the claimant’s case and he had reduced his working week to four days. Both of these factors meant that in our view the likely settlement value of his claim had increased. We discussed whether to withdraw our offer and make a higher one but Mr P felt that we had agreed that the £690,000 was a fair figure and he would keep to that. We therefore restated the offer and gave the defendants another 21 days to accept it without penalty. Only after the 21 days had expired did they revert substantively and over the next couple of weeks made a number of offers increasing in small amounts. We maintained our position that £690,000 had always been a sensible figure and was a costs protective offer. Unless the other side produced evidence to make us reconsider our valuation, we would not accept less than £690,000. Eventually the offer was accepted and to try to resolve things, we agreed to waive any entitlement to indemnity costs for late acceptance. 

Ultimately the defendant’s conduct caused a huge amount of upset to Mr P, spoiling the effect of what had been the trust’s initial honest and open dealings with 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 a well-established principle of non delegable duty of care, and insisting on an application hearing to address costs - meant that very significant additional costs were incurred.

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

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