INDEMNITY COSTS ORDERED WHERE DEFENDANT ASKED FOR JSM BUT MADE NO OFFER: “A WASTE OF TIME AND MONEY”

On the Kings  Chambers website there is a report, and transcript, of the decision in EAXB v. University Hospitals of Leicester NHS Trust: 4-8^th November 2019 and 6^th January 2020.

The report is of a case  where the claimant was successful in an action for clinical negligence, they were represented by two of my colleagues  Satinder Hunjan QC leading Anna Diamond.

One interesting aspect of the case is the awarding of indemnity costs in circumstances where the defendant had instigated a JSM but made no offer.

THE CASE

As a result of various failings of the Defendant the Claimant was not offered an urgent appointment for combined test (CT) to be undertaken and as a consequence the Claimant missed the window for such a test.

The judge found negligence because the defendant’s system was illogical, inadequate and did not make appropriate provision for organising an urgent appointment for someone such as the Claimant.   The claimant succeeded on a second ground that hat a ventricular septal defect (VSD) should have been suspected at routine anomaly scanning.

INDEMNITY COSTS

Indemnity costs were awarded against the defendant.   The note on the case observes:

 “the most important aspect is the fact that indemnity costs were ordered against the Defendant for failing to make any offer to the Claimant.  The JSM had in fact been instigated by the Defendant (although that was not the basis for such a decision).  Arguments advanced by the Defendant that in the light of the Claimant’s position the parties were too far apart were not considered to be sufficient to make no offer at all.”

The note goes on.

“Many clinical negligence practitioners will have experienced the situation where, at a JSM, the position has been taken of making no meaningful concessions at all; such JSMs are a waste of time, trouble and money”