DRAFTING SCHEDULES OF DAMAGES: “THE SCHEDULE WAS A FICTION … THE POINT WAS RECOGNISED ON BEHALF OF BOTH CLAIMANTS”: SELECTED QUOTES (AND A WEBINAR)
The the judgment of Costs Judge James in HD v Northern Devon Healthcare NHS Trust  EWHC 2118 (SCCO) is one of a long series of cases where judges have been critical of the way in which schedules of damages have been heavily criticised by the courts. The way in which schedules have been drafted has led to allegations of fundamental dishonesty. Poorly drafted schedules often have major adverse consequences for claimants and their lawyers.
“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.”
SOME SELECTED QUOTES ON SCHEDULES
“The thrust of Mr Fewtrell’s cross examination was that the schedule was a fiction. I have little doubt that is the case. Indeed the point was recognised on behalf of both claimants”
Mr Justice Langstaff in F and S -v- TH  EWHC 1605 (QB).
“It is very important that lawyers draft the schedule in such a way that the facts to which the client is attesting are clear. Failing to do so is failing in their duty both to the client and to the court.”
Wright v Satellite Information Services Ltd  EWHC 812 (QB) Mrs Justice Yip
“The final updated Schedule extends to 89 pages and is far too long. It contains unwarranted discussion, argument and submission. On the other hand, the Defendant’s Counter-Schedule, dated 15th November 2016, is unduly Spartan, and only addresses the Defendant’s best case.”
Mr Justice Jay in Hayden -v- Maidstone & Tunbridge Wells NHS Trust  EWHC 3276
“In the event, the Original Schedules of Loss were shown to be quite unreliable and, in many respects, bore little or no relation what had happened or the evidence of the Claimants…”
Mr Justice Stuart-Smith in Arroyo -v-Equion Energia Limited  EWHC 1699
WEBINAR ON DRAFTING SCHEDULES: 9th NOVEMBER 2023
I am presenting a webinar on drafting Schedules on the 9th November 2023. Booking details are available here.
This webinar looks at the rules, cases and guidance on drafting a Schedule of Damages. It aims to help practitioners avoid the problems that judges regularly identify.
- Cases where the schedule has gone wrong
- Judicial criticism of schedules
- Getting the schedule right
- The problem of proving damages and the difficulties that arrive when you can’t prove them
- Evidence and damages
- Recording the information given to you and the advice given.
- Establishing the costs on assessment.