WHY SOLICITORS’ ATTENDANCE NOTES CAN BE IMPORTANT: CONSTRUING A CONSENT ORDER: DICTIONARIES AND REASONABLENESS

In Hague v British Telcommunications Plc (Immunotherapy : Reasonableness of Treatment : Private Dictionary Principle) [2018] EWHC 2227 (QB) Master Thornett had to construe the terms of a consent order. It is a case that emphasises the importance of attendance notes.  In this case attendance notes were admitted in evidence to help the court construe what was meant in a consent agreement.

THE CASE

The claimant developed  malignant pleural mesothelioma. His claim against the defendant settled without the issue of proceedings. In addition to paying damages the defendant agreed to pay for the claimant’s immunotherapy treatment.  An issue arose as to the scope of the the agreement.

THE AGREEMENT

The Master set out the relevant parts of the agreement.

Under the “Preamble” :

9.1 In consideration of the Defendant’s admission it was negligent and in breach of statutory duty, the Defendant pays a gross sum of £220,000 “save for the costs of and associated with medical treatment set out in the schedule hereto” : Para 3

9.2 The parties may apply to the QB Division to enforce the terms agreed : Para 8

Under the “Schedule to Order Preamble” :

9.3 The parties note that the Claimant is undergoing “private medical treatment by way of immunotherapy with the drug Pembrolizumab” : Para 3.

9.4 “The Defendants have agreed to provide an indemnity under which they will fund the costs of and associated with further reasonable second line immunotherapy treatment recommended by a treating oncologist” : Para 4

9.5 That treatment has commenced but the effect is “as yet, unknown” : Para 5

9.6 “The parties intend that the question of payment for any other treatment (defined as “new treatment”) be the subject of the liberty to apply provisions set out in the Order below, in the event that payment for such treatment cannot be agreed” : Para 6

Under the Schedule “Indemnity Provided”

9.7 “The Defendants agree to indemnify the Claimant in respect of reasonable medical and associated expenses arising from second line immunotherapy treatment approved by the Claimant’s treating Oncologist, currently Dr Sziosarek” (sic) : Para 9

9.8 The term “reasonable” shall be construed in accordance with the usual principles applied in relation to proof of loss in personal injury litigation” : Para 10

Para’s 10.1 and 10.2 respectively list “The cost of any second line immunotherapy” and “The associated medical expenses of that treatment” as costs that are presumed to be reasonable.

9.9 “When a treatment or a change has been recommended and is to be taken up on a private basis the Claimant will obtain from the treating oncologist, within 21 days of such recommendation, written confirmation of…[the Claimant’s current condition, recommended further treatment, the likely benefit, why it is recommended and the cost of that treatment] :

THE DISPUTE BETWEEN THE PARTIES

The dispute turned over the meaning of “second line immunotherapy”.  The claimant had been recommended to undertake a combination of ipilimumab and nivolumab,

1. The immunotherapy treatment with pembrolizumab following chemotherapy is described by both parties as second line treatment. The parties differ, however, as to what that term actually means : both clinically and, more particularly, in the context of the Agreement. The Claimant contends that the proposed new treatment is a continuation of the second line treatment as already applied and is not only consistent with but contemplated by the Agreement. The Defendant disagrees and contends the proposed new treatment is outwith the Agreement. The Defendant describes it as constituting third line treatment for which there is no agreement from the Defendant to fund.

RESOLVING THE DISPUTE

The Master held that the court’s task was to construe what the parties had agreed.

WAS THIS SECOND LINE TREATMENT?

The defendant argued that the treatment amounted to “third line treatment”

1. Mr Walker on behalf of the Claimant submits the wording is entirely clear. He refers me to the definition of “Second line therapy” in the National Cancer Dictionary of Cancer Terms as “Treatment that is given when initial treatment (first line therapy) doesn’t work or stops working”. He points out there is no definition of “Third line therapy” in this Dictionary.

2. Miss Adams on behalf of the Defendant submits the proposed new treatment is third line immunotherapy after first line chemotherapy and second line immunotherapy have failed.

3. I am unable to accept the Defendant’s submission as an ordinary matter of contractual interpretation. Whilst it remains possible, as Mr Walker conceded during the hearing, that there might exist a form of third line therapy [he gave the example of surgery], the emphasis of the agreed indemnity is clearly the provision of second line immunotherapy treatment. Although “second line treatment” is not defined as a term of art, it is clear from the Agreement as a whole that second line treatment is not expressly limited to Pembrolizumab but continuing immunotherapy treatment generally.

   • Para 4 contemplates “further reasonable second line immunotherapy treatment”. It does not say, as it could easily have done, “further” or perhaps “continuing treatment with Pembrolizumab”.

4. • Similarly, Para 6 in the Schedule expressly contemplates “other treatment”, although reserving that if not agreed this be the subject of an application.

5. • So too Para 12 contemplates “a treatment or a change of treatment”. Such a clause would be entirely otiose if the intention of the contract was entirely limited to the provision of funding for Pembrolizumab.

6. • Consistent with this observation is the reference to “any second line immunotherapy treatment” as a presumed reasonable cost under Clause 10.1.

7. I therefore find that the proposed new treatment is not precluded from being sought for payment under the Agreement. The Claimant is entitled to claim indemnity for that treatment providing it is reasonable, pursuant to Paras 9 and 10 in the Agreement.

THE PRIVATE DICTIONARY PRINCIPLE

The Master also considered construction of the phrase “second line immunotherapy treatment” using the “private dictionary principle”. This, in turn gave rise to the question whether a court could look at extrinsic evidence.

THE CLAIMANT’S SOLICITORS ATTENDANCE NOTE

1. 1. “At the hearing, Mr Walker referred to me in the hearing bundle a telephone attendance note prepared by his instructing solicitor, Mr Williams, on 1^stMay 2018 when the Agreement was being negotiated and two days before it was concluded. The note records how Mr Williams was chasing for a conclusion of the proposed Agreement with Mr Atkinson of the Defendant. In respect of Mr Atkinson, it records how :

“He has agreed to put in a clause saying that we can have “second line immunotherapy”. He says he takes that to be as follows :

“By that I mean Pembrolizumab, Nivolumab and/or Ipilimumab”

He did not want to be specific however. He has just agreed to “Second line immunotherapy”.

1. There was no initial procedural objection from the Defendant to the inclusion of this document in the hearing bundle or subsequent objection to the reference to it during the hearing, although Miss Adams clearly rejected throughout the Claimant’s interpretation that the proposed new treatment was encompassed by the phrase “second line treatment”.

WAS THE ATTENDANCE NOTE ADMISSIBLE?

The Master held that the attendance notes from the parties were admissible.

1. First, I do not accept the Defendant’s submission that the material is inadmissible. I find that the facts of this case fall entirely within the exception contemplated in Proforce Recruit Ltd. The parties have agreed a term with a mutual intention that it should be used as the fundamental criterion in the event that indemnity for further treatment was required and, if necessary, leads to an application for direction and declaration from the court. This is not a case of a party seeking to introduce material generally to elucidate the general object of the contract or to circumvent the ordinary principles of contractual interpretation. To the contrary, this is a specific and focused question whether there was a common intention how this agreed phrase should be defined. In short, to establish not only whether the Defendant’s current stance is factually incorrect but more pertinently that the Defendant is estopped from arguing to the contrary.

2. Secondly, I do not accept that the approach to clarification of the definition should draw upon the approach adopted by the medical experts. Quite to the contrary, the question is an objective factual one whether the parties reached a mutually agreed definition of the phrase “second line immunotherapy treatment” irrespective of whether this did or did not happen to accord with its understood medical definition – if any.

3. As a question of fact, I am clear that on the basis of the two telephone attendance notes the parties had agreed to limit indemnity to Second Line treatment but as might entail at least three known varieties of immunotherapy. They had not limited immunotherapy only to the application of Pembrolizumab. The respective attendance notes are mutually compatible and so I find that there was a common intention as to definition. This resolves the ambiguity I am considering in favour of the Claimant.

WAS THE PROPOSED TREATMENT REASONABLE?

The Master found that the term was reasonable.

i. The proposed treatment of combination immunotherapy may have little if any support from formal clinical research studies but it is not unique, even if only from Dr Szlosarek’s personal clinical experience.

ii. Dr Fisher has conceded that one of Dr Szlosarek’s patients appears to have done well, despite contraindications. She concedes, thus, that there is some evidence to justify combined immunotherapy.

iii. I do not find convincing, or indeed even helpful, Dr Fisher’s dismissal as simply irrelevant Dr Szlosarek’s comparison and justification by analogy with uveal melanoma patients. Dr Szlosarek provides a rational basis for adopting the treatment in the case of mesothelioma patients by reference to a comparative cohort. Dr Fisher offers no reason to qualify if not rebut this approach. Her distinction that the comparator did not suffer from mesothelioma, with respect, misses Dr Szlosarek’s point.

iv. Dr Fisher mentions increased possibilities of toxicity but falls short of asserting that the proposed treatment is accordingly inadvisable. It would be trite to say that the mere presence of risks in (any) proposed treatment does not, at least of itself, render that treatment unreasonable. There needs to be a more convincing evidential basis to conclude treatment is unreasonable, typically because the evidence establishes that the risks so obviously outweigh the potential benefits.

v. There is no suggestion from the Defendant that Dr Szlosarek lacks appropriate qualification or experience. Instead, it is that his recommendation is “outside the emerging evidence base and therefore without clinical foundation” ^[4]

vi. This is a highly specialised area in which there is no NHS practice or NICE recognition. In this context, the fact Dr Szlosarek draws upon his personal experience within private medicine is to entirely be expected rather than constitute a point for implied adverse criticism. Anecdotal evidence may well be the lowest form of evidential hierarchy but does not, of itself, establish that clinical decisions drawn from it are therefore unreasonable. Indeed, were this the case it would lead to the remarkably concerning proposition that no medical practitioner could justify a decision unless based on peer reviewed clinical studies. Rationalised decisions based on personal clinical experience can surely still be justifiable and hence be reasonable providing any contraindications are not such that no other medical practitioner would consider them reasonable or be likely to take them.

vii. Therefore, the absence of there being a supportive clinical base for the proposed new treatment is not decisive.

viii. This is clearly not a case of a medical practitioner seeking to embark upon a peripheral if not wholly objectively unjustified course of action. Dr Szlosarek has confirmed he is quite aware of the state of medical understanding and objective findings on this point.

ix. I reach my decision on the facts of this case. However, it is difficult to distinguish this claim for indemnity as having less merit than in Najib. In contrast to the treatment in Najib, there is evidence both as to justification and potential benefit from not only an experienced relevant clinical practitioner but the very practitioner contemplated in the Agreement : the Claimant’s treating oncologist.

x. The stipulation at Para 4 in the Agreement that any further treatment must be recommended by the treating oncologist does not mean their opinion, once expressed, is automatically decisive. To the extent the Claimant came close to that submission, I reject it. However, where the parties have expressly agreed to be bound by the reasonable opinion of the treating oncologist, I conclude the Defendant is unable simply to introduce alternative medical opinion in order to gainsay the opinion of the agreed oncologist. As I pointed out during the hearing, the decision in this case is not a binary choice as to preference between two experts called at trial. Instead, it is a decision as to whether the recommendation of the agreed medical practitioner (i.e. the Claimant’s treating oncologist) is objectively reasonable, even if still falling within a range of opinion.

xi. For the above reasons, I find that Dr Szlosarek’s recommended further treatment is reasonable.

xii. I add that I prefer and adopt the phraseology of Dr Szlosarek that the proposed new treatment is re-treatment and not a distinct and separate third line therapy. Dr Fisher’s classification of the proposed new treatment as third-line seems substantially drawn from her unwillingness to accept it constitutes a justified form of immunotherapy and so, it follows, must fall into a new or different category. I have set out my reasons in concluding that it is a justified form of immunotherapy. So, it follows, can there be no justification for classifying it as third-line therapy.

1. I grant the Claimant an order in the terms of the draft sought.