We are returning to the judgment of Costs Judge James in HD v Northern Devon Healthcare NHS Trust [2023] EWHC 2118 (SCCO).  This is a case that anyone drafting a Schedule of Damages should read.  These actions were settled well before trial. However the Schedules of Loss were subject to considerable scrutiny during the assessment of costs. They were found wanting…

“I do not find the Schedules to have been drafted systematically or with the care and attention to be expected of a boutique Clin Neg firm specialising in vaginal mesh claims, frankly the six I have seen are all over the place. It follows that I am in considerable doubt as to the times claimed for these Schedules; the times may well have been spent but based upon the above they were not reasonably spent. Much time was thrown away on calculations based on the wrong premises, plus arithmetical errors and other oversights as detailed above.”


The judge was assessing costs in six cases relating to vaginal mesh litigation.  The litigation was subject to a Claims Handling Agreement.  The actions had been resolved at mediation. On assessment of costs the Schedules of Damages served on behalf of the claimants came under close scrutiny. The  judge went through each schedule in great detail. This led to a consideration of the (as it turns out) manifold discrepancies in the Schedules.

[69]      Going into such granular detail on the Schedules has taken a while but will hopefully assist, not only on this exercise but going forward with line-item assessments and on any Misconduct arguments that there may be. This exercise has revealed some very striking discrepancies across the Schedules, some of which are explicable but many of which appear to have no logical explanation.
[70]      Examples of explicable discrepancies include only some Claimants seeking £20,000.00 for removal surgery; some had already undergone removal (per care claims post-op) so that makes sense. Another is Ms “CB” going for a translabial scan; nobody else in this cohort had one but that just suggests she was the only Claimant who tried that option.
[71]      Ms “HL” was the only Claimant to seek the cost of a cleaner, a gardener and a window cleaner as a care cost, but that might simply mean that she was the only one relying on outside help. These cases settled pre-issue, so the claims and evidence were not tested at Trial but I gather were ‘reality checked’ at the Mediations. Ms “HL” claimed in excess of £80,000.00 for domestic services (past and future) whilst her husband asserted (paragraph 9 of his Witness Statement of 7 December 2020) that during his four-day rest periods he did all the ‘day to day’ house cleaning and grocery shopping etc.
[72]      This statement was in the context of the hours of care Mr “HL” said that he was providing for Ms “HL” during the week. She would presumably have been reality checked at the Mediation on a claim for ‘care’ by an able-bodied man doing household chores in his own home, as well as on the assertion that she needed this level of paid domestic support when she continued working (albeit at a reduced rate per hour/fewer hours) as a self-employed Exercise Specialist/trainer.
[73]      None of this is intended as any criticism of Ms “HL”. Claimants often have no idea of what they may or may not claim (or expect) in the way of damages, but a boutique firm specialising in vaginal mesh claims might have been expected not to encourage Ms “HL” to believe she was likely to recover over three quarters of a million pounds (including General Damages for PSLA, see below) when in fact her claim settled for £30,000.
[74]      Examples of other, less explicable discrepancies are many and varied. Before leaving Ms “HL”, in Schedule 1 there is a claim for past loss of earnings but no claim for future loss of earnings; it then crops up in Schedule 2 (at £218,630.76) so must have been overlooked. That is a very striking omission from a boutique Clin Neg firm, Grade D fee earner or no; in fact, it appears Fortitude Law is claiming 2.5 hours Grade A, 7.6 hours Grade B and 21.2 hours Grade D time which makes such a (six-figure) omission all the more extraordinary.
[75]      There is no claim for past loss of earnings by Ms “HD” in Schedule 1 but she indicates she intends to reduce her hours in future; in Schedule 2 she claims she reduced her hours from 19 August 2019 (which would be less than two weeks after Schedule 1) and is currently losing £5,265.00 per year. In Schedule 2, dated 6 October 2020, she claims to have lost £5,703.75 and in Schedule 3 (5 November 2020) she claims to have lost £7,044.33 which is a significant increase in just one month.
[76]      To be clear, those are very clear assertions of actual loss already incurred and as such I do not think that Mr Dunne’s submissions (which I appreciate were made on instructions) to the effect that she thought she would have to reduce her hours but then secured better paid (but less congenial) work and did not have a loss after all, rescues the position. She was claiming £7,044.33 of past losses and from that springboard was claiming a further £106,927.99 of future losses when, as Ms McDonald submits and as appears to be the case, she did not have any such losses and abandoned those claims on the eve of the Mediation.
[77]      In fairness to Ms “HD”  I do not understand why the abandonment of her claim for lost earnings in Schedule 4 was accompanied by the abandonment of almost everything else; she had claims for OTC pain relief and incontinence pads, future private treatment including bladder Botox and antimuscarinic treatment and past and future losses worth six figures in total, which are simply absent from Schedule 4; aside from travel expenses and cost of care, everything else has fallen away. Again, that appears to be simple oversight.
[78]      Looking at Mr “HD”’s Witness Statement, he refers to 14 hours per week of care but this includes cooking dinner, doing most of the housework and carrying shopping or pushing the trolley when Ms “HD” is shopping as she can no longer manage this by herself. I appreciate that Mr “HD” may have thought that he was doing this for his wife but the idea of an able-bodied man doing some household chores around his own home, sounding in damages for past or future ‘care’ is something that I would expect to have been ‘reality checked’ at mediation.
[79]      Post-op care requiring some medical skill, or helping one’s wife with personal care and toileting, might be tasks that the most devoted husband would not expect to do, but much of the ‘care’ in the various Witness Statements before me looks like what used to be classed as ‘natural love and affection’ for one’s partner a.k.a. doing one’s own share around the house. Such claims would have been open to challenge since well before these Schedules of Loss were drafted; a care expert (for example) would have separated the wheat from the chaff, and most of what I have seen, seems to be the latter.
[80]      When compared in table form other discrepancies between claims are very striking. Returning to Ms “CB”, her translabial scan is claimed but there are no pain meds in her Schedule, despite her Witness Statement saying that “I have been prescribed multiple pain medications and trialled multiple medications and treatments for the severe urinary incontinence symptoms…” (para 21, 24 November 2020). Her husband’s Witness Statement refers to having to bathe and toilet her (paras 15 and 16, 24 November 2020) which sounds more like ‘care’ of the sort that sounds in damages. However, despite claims in her Witness Statement that she uses between 7 and 10 incontinence pads per day and suffers recurrent UTI’s, 3 to 4 times per year, neither pads nor UTI meds are included in Ms “CB”’s future loss claims and it can only have been due to oversight. The sums claimed for pads etc. vary quite widely between Claimants which may just be down to regional variations or the quality/quantity per pack, but the lack of any future provision for Ms “CB”, who is so debilitated by incontinence, is striking.
[81]      Antimuscarinic treatment is claimed across the board in Schedule 2, at £1,300.00 per year, but by Schedule 3 it has been dropped from all but “HD”. I had assumed that this was because it was an either/or option with the bladder Botox injections and that the latter, more expensive, option had been left in, but in “HD” both options appear. Both are, of course, available on the NHS as well; Claimants are entitled to price up private treatments but ‘reality checking’ at Mediation may have factored into these claims for otherwise fairly non-invasive and free treatments. Certainly, either these two were mutually exclusive or they were not, so why are they in “HD” and only “HD” as at Schedule 3? It is over £50,000; should it have been left out of that Schedule or included in the other 5?
[82]      Looking at Ms “CT”, her Witness Statement is dated 16 November 2020 and in it she explains that she is forced to take 3 to 4 doses per day of Codeine which barely affects her severe pain; she also states that she is prone to frequent and painful UTIs requiring antibiotic treatment (para 28, 16 November 2011). Yet in Schedule 1, only incontinence pads are accounted for under medical expenses; this is not remedied in either Schedule 2 or Schedule 3 despite the ‘General Damages’ narrative referring to chronic and severe pain, chronic and painful UTIs requiring antibiotics and strong anti-depressant medication, none of which is in the Schedule.
[83]      Most worrying is a claim, in Ms “CT”’s Schedule 1, for 28 ‘extra’ hours per week of care, over the past 6.92 years (since her surgery) totalling £100,755.20, and ongoing at 14 ‘extra’ hours per week, £202,384.00. That is a claim for £303,139.20 which most people would regard as a life-changing sum, but by her Schedule 2 (dated the same date as her Witness Statement above) there is no claim for past nor future care, and nor do these appear in her Schedule 3 dated 17 April 2021.
[84]      In her Witness Statement, Ms “CT” details certain pre-existing conditions that mean she has had a carer supporting her with tasks such as cleaning, laundry, shopping, attending medical appointments with her and cooking, since long before the surgery complained of. Her late husband fulfilled the role until he passed away in 2011 and thereafter paid carers have come in. Although she speaks movingly (and with a ring of truth) about the considerable hardships she has encountered during her life, Ms “CT” does not attempt to suggest that she has needed any more than the paid care above referred-to. However, that begs the question, why did a claim for £303,139.20 go into Schedule 1, to begin with?
[85]      The impression given is that Fortitude Law has given every Claimant a baseline care claim of a multiple of 7 hours per week and only when personal circumstances (here, the absence of a significant other who could have undertaken such ‘care’) prevent such a claim getting off the ground, has it been abandoned. That is extremely troubling and the sheer amount of time spent/work done quantifying these ‘care’ claims is both significant and almost entirely worthless in terms of advancing the Claimants’ interests.
[86]      There are a lot of arithmetical errors, for example when the National Joint Council Payscales Basic rate (discounted by 30% for gratuitous care) was substituted, on “CM” the person drafting Schedule 3 misread the dates and calculated time spent from 1 April 2013 to 31 December 2014 at £4.83/hour, as 39 weeks (it should have been 91 weeks as in “CH”). Similarly, when the time spent from 1 January 2015 to 31 March 2016 at £5.03/hour was calculated in “CM” it was calculated at 13 weeks (it should have been 65 weeks). That is over £3,500.00 omitted from that Schedule by arithmetical error.
[87]      Similarly, the bladder Botox is generally stated to have been £2,100.00 for the first injection, and £1,950.00 every 9 months for ongoing injections. However, in “HL” and “CB” someone has, enterprisingly, worked out the ANNUAL cost, but they have got it wrong. If it costs £1,950 every 9 months, then the annual cost would be (£1,950.00 divided by 3) times 4, which is £2,600.00 not £2,950.00 – I appreciate that is £350.00 but across those two matters it was being claimed for 63.4 years, which is £22,190.00 for an arithmetical error.
[88]      One of the most striking problems with the first two Schedules is the hourly rates that they use to calculate past and future care costs. These are either £6.50 or £10.00 per hour (presumably £6.50 is a rough approximation of 2/3 of £10.00 per hour). However, by Schedule 3 the National Joint Council Payscales Basic rates have been used instead. That is an improvement, but it is unclear why those rates were not used before; the earlier rates are described as ‘conservative’ but they were quite simply wrong.
[89]      It will be apparent from the foregoing that I am not impressed by these Schedules of Loss. A reasonable system of work would have been to draw up a checklist of potential claims based upon an understanding of what is and is not recoverable. That would have required an understanding of what counts as ‘care’ and an understanding of the difference between (e.g.) claiming for all incontinence pads used in Schedule 1 and only in later Schedules restricting the claim to the ‘extra’ pads allegedly attributable to the Defendant’s actions. It would have involved cross-referring to the Witness Statement and indeed to the narrative within the Schedules on General Damages, to ensure that obvious claims for ongoing incontinence pads and pain meds and UTI antibiotics were not simply overlooked.
[90]      Speaking of General Damages, I apologise if I have missed it but I have not found any reference to a Claimant who was rendered doubly incontinent (i.e. bowel as well as bladder) by this surgery. Why, then, do the Schedules include JC Guidelines Chapter 6, 14th Edition, Section (J) Bladder (a) involves double incontinence £161,520 – £123,310? The Claimants, on reading that, could have been lulled into a sense of entitlement to sums that were never going to be realised.
[91]      Fortitude Law’s website (according to Ms McDonald’s Skeleton at para 8) states, “Fortitude Law has already helped, and is currently helping, many UK women to secure compensation of £100,000 or more in respect of negligent Mesh Implantation Surgery – and our unique approach means that the individuals we act for receive compensation from the insurance which the private medical consultants, private hospitals and NHS Trusts are required to have in place.” It is not clear to me what ‘unique approach’ Fortitude Law is claiming, but as yet I have not seen a single claim that realised even half of £100,000 despite claims pitched well in excess of that sum and (in the case of “HL”) in excess of three quarters of a million pounds if one includes PSLA.
[92]      I do not find the Schedules to have been drafted systematically or with the care and attention to be expected of a boutique Clin Neg firm specialising in vaginal mesh claims, frankly the six I have seen are all over the place. It follows that I am in considerable doubt as to the times claimed for these Schedules; the times may well have been spent but based upon the above they were not reasonably spent. Much time was thrown away on calculations based on the wrong premises, plus arithmetical errors and other oversights as detailed above.
[93]      I allow in “HD” the amount offered by the Defendant, namely 7.9 hours; since Mr Hanison put his name to it, I would allow 1 hour at Grade A and the rest at Grade D. I have not formed a view, but by way of indication, a similar amount is apt to be allowed on the others unless less than 7.9 hours has been claimed; in that case I would allow the time as claimed subject to anxious scrutiny of any Letter of Claim/General Review time as above referred-to.



Both parties commented on the draft judgment and the judge dealt with their observations.  This led to some alteration of view. However in some respects it compounded the judge’s view.  Further it highlighted the fact that much of the work that had been done on schedules was ineffective.

[95]     For the Claimant, it was stated that (as was submitted at the hearing) the Defendant’s own CHA unusually required a Schedule of Loss to be provided at the outset with the Letter of Claim, pre receipt of all medical evidence (as the Mediation took place 21 months after service of the Letter of Claim) and before all Financial Records including the DWP Records and Occupational Health Records had been allowed (under the terms of the CHA) to be obtained.  Per the Defendant, on the other hand, this is not correct as the “HD” Letter of Claim was dated 07 October 2019 so is covered by the original CHA dated 30 September 2019. This provides at Paragraph [4.3] for service of a Schedule of Loss with expert evidence after the Letter of Claim/Letter of Response/Replies process has concluded. Whilst it is correct (per the Defendant) that an early draft of the CHA, proposed by Fortitude in May 2019, provided for the Schedule of Loss to accompany the Letter of Claim this requirement was omitted from the revised draft sent by the Defendant in June 2019 and was at that time replaced with the requirement in Paragraph 4.3 for service of the Schedule later [the same requirement which then appeared in the agreed Claims Handing Agreement dated 30 September 2019]. As to it being before all Financial Records including the DWP Records and Occupational Health Records had been allowed (under the terms of the CHA) to be obtained  the Defendant asserts that the CHA did not prevent the Claimant from obtaining these Records, nor did it say when the Claimant should obtain these Records, either.
[96]     To be clear, I have looked at the CHA in “HD”, signed and dated 30 September 2019, and its terms are as the Defendant describes. The Claimant’s assertions that the Schedule of Loss had to accompany the Letter of Claim, and that they were not ‘allowed’ to obtain DWP or OH Records  any sooner, is not borne out by the CHA within their own Bundle, see “HD” Docs [Mediation] Bundle pp 6 to 10.
Future Loss of Earnings
[97]     Per the Claimant (“HD”), the Future Loss of Earnings (‘FLoE’) claim was put into the Schedules as, prior to receipt of the DWP records and Occupational Health Records on 18.02.21, the Solicitor had been informed by the Claimant that due to the injuries suffered as a result of the Mesh Surgery she was no longer able to work 37.5 hours a week and could only manage 30 hours a week. Once the Solicitor had obtained and considered in detail those DWP and OH records and upon detailed discussions with the Claimant it was their view that the FLoE claim was – on the balance of probabilities only – a claim that would fail at Trial as those records provide evidence that although the Claimant had mitigated the position by changing roles to a less physically demanding ‘desk based’ role, the Court would find that she had ‘chosen’ to work 30 hours and that on balance she could, with careful management of the pain issues – i.e. by resting in the evenings and at weekends (hence the continued care/assistance claim at 14 hours a week), have worked 37.5 hours a week.
[98]     However, in the Solicitor’s view, the DWP and OH records did not/do not confirm that Mrs “HD” could have worked 37.5 hours. The FLoE claim is reasonable – it is just that on the balance of probabilities it was the Solicitor’s advice to Mrs “HD” (and to which she agreed) that a Court would ultimately find that she could have worked 37.5 hours a week. The Schedule of Loss was always put on the basis of a FLoE claim of minus 7.5 hours per week for Mrs “HD”’s working life, however and through discussions with her for the purposes of the Mediation, it was agreed that on the balance of probabilities a court would find that she could have worked 37.5 hours a week.
[99]     For the Defendant, two queries were raised [a] Please clarify whether there are attendance notes to support the submissions made, and [b] If there are no attendance notes then on what evidence are these submissions made?
[100]   To be clear, I have not seen any attendance notes of conversations with Ms “HD” on this issue; correspondence in the Bundle around the time of settlement (May 2018) has been redacted although this appears to be multiple copies of a couple of items rather than dozens of separate redacted items, it still makes it difficult to follow. Given that the FLoE claim was abandoned before Mediation, the Employment and OH records are not (as far as I can see) in the Bundle; again, it does not help that a 2,000-odd page Mediation Bundle is not presented by reference to numbered pages.
[101]   It appears that the ‘Mediation’ correspondence starts on page 638 and that within that correspondence is a letter from the Defendant (email) dated 22 February which states that, “In respect of the OH records, we note that the OH department very clearly state that the Claimant is fully fit for her normal role. [letter refers to other health issues which led to the Claimant taking extended periods of absence]. Her other health issues appear far more significant in respect of number of and length of absences from work. It appears that the Claimant was offered a new role as a Band 5 in continuing healthcare assessments and wanted to take this (despite OH telling her she was fit for her current role). It is clear from these records that the Claimant did not require to change her job role due to her gynaecological issues (and sustain loss of earnings as a result) as claimed in your Schedule of Loss. Please confirm that you are dropping this claim, which amounts to £94,138.20 for future loss and £5,703.75 [sic] for past loss?”
[102]   There is also a letter (email) dated 19 February 2021 to the Claimant that refers to a telephone conversation that afternoon where the Claimant confirmed that, ‘…you have struggled working 37.5h/week and therefore would not continue doing so long term even if it were possible to continue working from home.”
[103]   I have also seen NHS payslips dated April, May, June and July 2019 showing standard hours 37.5 per week, net pay April £2,184.17, May £1,903.56, June £2,080.98 and July £1,992.73 so average £2,040.36 net pay across those 4 months. There are NHS payslips showing standard hours 30 per week in 2019 and 2020 (going as far as October of that year) so that it is not clear when the Claimant went back up to 37.5h/week although as I understand it, she does accept that at some point she did so.
[104]   In the Schedule of Loss dated 6 October 2020, Ms “HD” claimed already to have reduced her hours to 30 (from 37.5) per week, a claim repeated in a Schedule of Loss dated 5 November 2020. In the draft Medical Report of Dr Wael Agur (dated 8 September 2020) there is no reference to her injury impacting on her work, yet in her Witness Statement dated 15 September 2020 she states (at para 54) “In August 2019 I had no option but to give up the job I loved and had fought to keep and change my job to Nurse Assessor for continuing healthcare at Northern Devon Healthcare trust. This has allowed me to continue working as it is less physically demanding, although I am now only able to work 30 hours a week over 4 days which has resulted in a reduction in my salary of one fifth…”
[105]   I accept that the issue now appears somewhat different to how I framed it in the Judgment set out at paragraphs 61 to 93 above, in that there is clearly evidence to the effect that the Claimant had started a working pattern of 4 days per week, although at some point going back up to 37.5h/week. From the Schedules the loss to the Claimant was calculated on a gross rather than a net basis. Her salary at 37.5h/week is stated as £29,608.00, rising to £30,112.00; upon taking up the new role she is on the same salary, but pro rata it comes to £24,089.60. That is a gross reduction of £6,022.40 per annum but after tax and NI would be somewhat less ‘out of pocket’ for her, even before reckoning a return to a five-day week upon lockdown and the ability to work from home.
[106]   In terms of recovery on the Standard Basis it matters not; the point is that the Claimant was pursuing what turned out to be an unmeritorious claim for lost earnings, given a belated acceptance that she could not prove she switched jobs due to this incident as she was (a) unwell due to a number of other medical issues and (b) well enough according to OH to have worked a 5-day week in her old job had she chosen to stay on.
[107]   That, together with the issues around using the wrong care rates in the first two Schedules, what does and does not count as ‘care’, claims for incontinence pads, meds et cetera, means that on the Standard Basis I am – to put it mildly – in some doubt as to whether the time spent on these Schedules of Loss was reasonably and proportionately spent [5]. I therefore stand by the allowance already made for the Schedules of Loss in “HD”.
Future medical treatment
[108]   The Claimant asserted that this claim was not “overlooked” or missed off later schedules in “HD”.  Once again, it was removed because of changing circumstances and the pro-active approach that Fortitude Law take towards their clients mitigating their loss.  The future treatment/medication claim which was valued based on Dr Agur’s Expert Report and was calculated on the basis that the Claimant told him that her wish was for all future care to be untaken on a private basis as she had lost faith / trust in the Defendant NHS Trust’s ability to provide her with adequate care, was removed from her third Schedule of Loss as following detailed telephone discussions the Solicitor had with Ms. “HD” in May 2021 in preparation for the Mediation in the drafting of the Mediation statement – Mrs “HD” confirmed that as she continued to work for the Defendant NHS Trust she would be prepared (as she was at that time very concerned as to how it would look/affect her standing within the Defendant NHS Trust if it were to become known that she was having treatment on a private basis) to mitigate those future expenses by having any required further medical treatment under the NHS – thereby negating the costs of private treatment.
[109]   D makes the same points as before i.e. are there any attendance notes and if not, how does the Claimant propose to prove this assertion?
[120]   There is no such attendance note. The correspondence is not helpfully presented as it is not a perfect set of unique items in date order, instead every email string is included in full so that the same messages appear multiple times and it is only vaguely in date order. However, I have looked, and I have not found anything to substantiate what is now claimed. I did say in my covering note on 6 April 2023 that if Mr Hanison could direct me to documents in the Bundle that might change my view I would consider them, and he has not done so.
[121]   More strikingly, even if I accepted the argument about private bladder Botox etc., where does that leave pain medication, antibiotics on prescription (for multiple UTIs per year) and incontinence pads? It does not stack up and with all due respect to the Claimant it appears that Fortitude Law have simply overlooked those potentially substantial claims. Hence, I stand by my Judgment on this as well.