It is surprising how few legal practitioners have actually been to a detailed assessment hearing, my own enquiries suggest it is a tiny fraction of litigators. A much higher percentage, however, have had cause to comment, possibly complain, about the outcome. The paying party believing it has paid to much, the receiving party that it is too little. The situation is that many who work in civil litigation have little practical understanding of the process that ensures they are paid. This has profound practical consequences in relation to the way that files are run and costs are often not recovered. Over the next few weeks we will be looking at a few decisions in detailed assessment hearings so that litigators can understand the detailed scrutiny that each item claimed can undergo in that process. Here we look at the judgment of Cost Judge James in HD v Northern Devon Healthcare NHS Trust [2023] EWHC 2118 (SCCO), in particular the close analysis of the claims made for letters of claim.
“… notwithstanding the individual journeys of each of the Claimants, as they have all suffered due to the same kind of treatment it makes sense to have drafted up a precedent for those sections of the Letter of Claim that were always going to be the same or at least very similar in content. The issue is simply that, having done so, the amounts of time spent on drafting individual Letters of Claim which are both excessively lengthy and largely precedent-led, are neither reasonable nor proportionate.”
THE CASE
The judge was assessing costs in a number of clinical negligence cases relating to vaginal mesh cases. The claimants’ solicitor appears to have spent in excess of 60 hours for drafting the letters of claim. On assessment the length and utility of the letters were closely considered and the hours claimed reduced to 15 in total.
THE JUDGMENT ON THE LETTERS OF CLAIM
[7] Ms McDonald likened the Letters of Claim to a [prolix] Skeleton Argument, and Mr Dunne likened them to a Pleading, arguing that, under the CHA, they had to be exceptionally detailed so as to put the parties in a position to settle at a Mediation before proceedings were even issued.
[8] Turning to the Claims Handling Agreement (‘CHA’) it required Fortitude Law to do certain things, enumerated at Clause 4.2.2 [as exhibited to Mr Hanison’s Witness Statement]. The Letters of Claim had to:
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Be pre-action protocol compliant
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Be accompanied by generic supportive independent evidence
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If past 3 years’ primary limitation period, address limitation; in any event confirm date of knowledge
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Address Breach of Duty
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Specify what, ‘but for’ the alleged breach, the Claimant would have done, to include non-surgical and (if relevant) surgical alternatives
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Address Causation
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If a ‘Chester v Afshar’ Causation argument is relied upon, confirm this specifically
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If any references, guidelines, or statistics were relied upon, provide copies with the Letter of Claim
[9] Looking at the Letters of Claim, I accept Ms McDonald’s submission that requiring them to comply with the pre-action protocol is entirely normal; parties are expected to comply with any relevant pre-action protocol (and if there is none, to comply with the spirit of the Practice Direction on pre-action protocols). The protocol for Clinical disputes requires the Claimant to set out a clear summary of the facts on which the claim is based, including the alleged adverse outcome, and the main allegations of negligence; a description of the Claimant’s injuries, and present condition and prognosis; an outline of the financial loss incurred by the Claimant, with an indication of the heads of damage to be claimed and the scale of the loss, unless this is impracticable; confirmation of the method of funding and whether any funding arrangement was entered into before or after April 2013; and the discipline of any expert from whom evidence has already been obtained.
[10] Looking at the Letters of Claim, and particularly at the letter in “HD”, all of them contain substantial extracts from the medical records. In “HD” they cover fourteen pages of the Letter of Claim. Ms McDonald referred me to the time spent/work done sorting and indexing the medical records prior to drafting the Letter of Claim. Mr Dunne asserted that that time would cover all the records, not just the relevant ones, and should be viewed separately to the time spent on drafting the Letter of Claim itself.
[11] Whilst I appreciate that distinction, I have to say it is unhelpful to Fortitude Law. Whoever was sorting and indexing those records, knew that this was a vaginal mesh case; the task of highlighting, underlining or otherwise tabbing up entries that could potentially have a bearing (such as notes regarding leaking, a sensation of something dropping down, pelvic or abdominal pain) from those which did not (such as, hypothetically, tonsillitis or an ingrown toenail) could and should have been done as part of that task. If it was not then that speaks to an unreasonable system of working; it was incumbent upon Fortitude Law to carry out this work at a reasonable and proportionate cost, and requiring the fee earner sorting and indexing the medical records (or the fee earner considering those records once they were sorted and indexed) to tab the most relevant entries to speed up the drafting of the Letter of Claim, is an obvious step and one that ought to have been taken in every case.
[12] The copying and pasting (or, as the case may be, copy typing – both techniques have been used) including copying and pasting of handwritten medical notes producing pages and pages of detail, was not necessary in and of itself nor was it required under the CHA. Looking at “HL”; on page 4 of that letter at paragraph 6 the drafter refers to the Claimant having urodynamic stress incontinence with a stable bladder and that Mr Sorinola intended to provide her with fluid advice, refer her to Physiotherapy for pelvic floor exercises and bladder retraining and also to discuss the insertion of a TOT to correct her stress incontinence. At paragraph 7 the drafter refers to the Claimant being seen on 4 June 2013 in clinic at Warwick Hospital, by Mr Sorinola who noted in the clinical notes that the operations were explained, the risks discussed at length and the risks of voiding difficulty and reoccurrence were also noted.
[13] These two matters take up 8 lines on page 4, yet by cutting and pasting the handwritten notes themselves (that mirror what the drafter has put in already) this stretches to a full page. At paragraph 10 on page 8 there are two lines explaining what the Hospital Drug and Discharge Summary says, but then the entire Summary is cut and pasted in, again taking this to a whole page without adding anything of pith.
[14] In my view this is not a mere question of stylistic preference. I have never seen professionally-drafted Letters of Claim like the ones produced by Fortitude Law; they are both unusually long and are in an unusual format. Given the ability to have flagged up the relevant medical records when sorting and indexing, it should not have been necessary to spend a vast amount of time extracting the relevant information to put into the letter even if this much detail had been required.
[15] In my view, nowhere near this much detail was required either under the CHA or as a matter of good drafting practice. Given that (pursuant to the CHA at 4.2.3) the Letters of Claim were accompanied by the Claimants’ medical records as received by Fortitude Law at that date in chronological order, a reasonable and proportionate approach would have been the more ‘traditional’ approach of a summary of the Claimant’s pre-negligence health issues and the events complained of as well as her condition and prognosis, with dates included enabling the Defendant to cross-refer those allegations to the accompanying medical records in the usual way.
[16] After what I have found to be an unnecessarily and unreasonably prolix medical background in each Letter of Claim, the letters then all follow a similar pattern. Firstly there is a section headed ‘The Applicable Law of Consent in respect of Medical Negligence’. That section cites the case of Montgomery v Lanarkshire Health Board as well as the Bolam test which are, if not trite law, certainly very well-established and well-known tests to any Clinical Negligence expert. It is in my view doubtful as to whether the Solicitors at DACB tasked with dealing with these cases, benefited greatly from three pages largely comprising quotations from Montgomery at paragraphs 87, 89, 90, 91, 80, 83 and 104.
[17] The point is that those same three pages, quoting the exact same paragraphs in the same non-sequential order from Montgomery, appear in the letter on “CH” (pp 12 to 14), “HD” (pp 16 to 18), “CM” (pp 17 to 20), “CB” (pp 16 to 18) “HL” (pp 20 to 23) and “CT” (pp 26 to 28). Interestingly, on “CB” the underlining of the heading has gone wrong and it reads, “The Applicable Law of Consent in respect of Medical Negligence” and the exact same underlining appears on the letter in “HL”. Be that as it may these are identical in every material particular and have clearly just been slotted in from a precedent available to the drafter.
[18] The letters then contain a section on Causation, referring to basic Tort principles and whether, ‘but for’ the Defendant’s alleged failure adequately to warn the Claimant of the material risks and of any reasonable alternative and variant treatments, the Claimant would have refused TOT (or, as the case may be TVT) treatment, in which case she would be entitled to a remedy.
[19] The section cites Montgomery at paragraph 105, then Chester v Afshar setting out a list of six findings in Chester including a (sometimes underlined) passage asserting that the test of causation was satisfied as the risk that eventuated was within the scope of the duty to warn so the injury was caused by the breach of that duty. There is then a quote from Lord Hope of Craigshead and a concluding assertion (sometimes in bold type) that there needed to be a remedy to avoid the position that the law would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned.
[20] Again, that section appears in “CH” (pp 15 to 16), “HD” (pp 19 to 20), “CM” (pp 20 to 21), “CB” (pp 19 to 20) and “CT” (pp 29 and 30). There are minor differences but again these sections are in every material respect identical and have clearly been drafted from a precedent.
[21] Next comes a section headed Allegations of Negligence against [Defendant]. These obviously contain allegations specific to each Claimant’s case, but there are still striking similarities across all six Letters of Claim.
[22] Under each heading (Law of Consent, Causation and now Negligence) the numbering starts again. It is notable that this section is poorly numbered e.g. on the first page there are two paragraphs 1 and two paragraphs 2, then over the page there is another paragraph 1 and then a few pages on, another paragraph 2 before paragraphs 3 through 19 appear, with many un-numbered paragraphs (or sub-paragraphs) also appearing. It is striking that the poorly-numbered opening paragraphs, set out in exactly the same order and (for the most part) worded exactly the same, appear across the Letters of Claim.
[23] Paragraphs 1 and 2 set out what the Defendant would have to show in order to establish that consent had been properly obtained; there are two bullet points at paragraph 1. The second paragraph over the page 1 sets out what the Defendant should have done, and lists eight examples (i) to (viii) with item (ii) sub-divided into (a), (b), (c) and (d). That is in “CH” (pp 18 to 19), “HD” (pp 22 to 23), “CM” (pp 23 to 24), “CB” (pp 22 to 23), “HL” (pp 27 to 28) and “CT” (pp 32 and 33).
[24] There are minor differences e.g. in several cases only (vii) examples are given as not every case cites the 10% (on the borderline of very common and common) based on the latest Royal College of Obstetricians and Gynaecologists Governance Advice from December 2008 risk that the TVT (or TOT) would not provide any benefit at all to the Claimant’s SUI. However, there does not appear to be any reason for that omission and in any event in every other material regard those sections are identical.
[25] The adverse reactions described in Ethicon’s ‘Instructions for Use’ come next in every single letter and although there is some personalisation there are significant tranches of identical material elsewhere. These include paragraphs from ‘Moreover, there are reasonable alternative and variant surgical treatments…’ to ‘Non-synthetic sling procedures: namely autologous, allograft or xenograft’ which are all near-identical. All six letters note, ‘whilst it is of no direct relevance here’, the non-binding opinion of Lord Boyd of Duncansby in AH v Greater Glasgow Health Board. See (under this heading) “CH” paras 16 to 19, “HD” paras 11 to 16, “CM” paras 13 to 16, “CB” paras 11 to 12, “HL” paras 12 to 15 and “CT” paras 12 to 15.
[26] There is then a section on Causation and again whilst there is a degree of personalisation there is a great deal of the precedent about this section as well. It cites the ‘Comparison of Treatment Options for SUI’ from the British Association of Urological Surgeons and the evidence of Dr Agur on ‘Retropubic Mesh for SUI Surgery’ and in effect state that each Claimant would not have agreed to TVT or as the case may be TOT surgery, had she been properly informed of the risks. That is in “CH” (pp 28 to 31), “HD” (pp 32 to 34), “CM” (pp 32 to 35), “CB” (pp 31 to 33), “HL” (pp 38 to 41) and “CT” (pp 42 to 45).
[27] There is then a section on Limitation which cites Ministry of Defence v AB and Others, Section 33 of the Limitation Act 1980, Carrol v Chief Constable of GMP and the Judgment of Yip J in Mossa v Wise, giving the identical three-line quote from that Judgment. That is in “CH” (pp 31 to 34), “HD” (pp 35 to 37), “CM” (pp 35 to 38), “HL” (pp 41 to 43) and “CT” (pp 45 to 48). “CB” is different because her operation was more recent and therefore Section 33 etc. are not cited (although MoD v AB and Others, is).
[28] The letters then conclude with Disclosure Requests and references to General and Special Damages; there is again a lot of common ground across these. The overwhelming impression is that Fortitude Law has drafted up a precedent section under each heading and that the fee earners tasked with drafting the Letters of Claim have had access to those precedent sections. Some have been tailored to a considerable extent, e.g. the medical histories (but against a background of many hours spent on sorting and indexing the medical records that should not have taken a great deal of time). Others appear to be identical, or near-identical, across all 6 letters.
[29] Something else that shows that there was a precedent for each of these sections, is the extent to which several of the letters have errors in them where the precedent has been either overwritten incorrectly (so that a completely different Claimant’s name appears) or not completed fully (so that, for example, three of the letters of claim call for a Reply by ‘………’ with a date four months hence having been omitted by oversight). There is nothing sinister in that and indeed, notwithstanding the individual journeys of each of the Claimants, as they have all suffered due to the same kind of treatment it makes sense to have drafted up a precedent for those sections of the Letter of Claim that were always going to be the same or at least very similar in content. The issue is simply that, having done so, the amounts of time spent on drafting individual Letters of Claim which are both excessively lengthy and largely precedent-led, are neither reasonable nor proportionate.
[30] As far as “HD” is concerned I am in no doubt that both the 62.3 hours claimed and the 50 hours offered to draft the Letter of Claim, are unreasonable and disproportionate and candidly I cannot see that letter having taken anything like the time claimed, to draw. Given a well-ordered and tabbed set of medical records and a set of precedent sections (which there clearly were) to drop into the letter, I think that the Defendant’s offer of 15 hours is a reasonable one and I would allow Grade A x 3 hours, Grade B x 3 hours and Grade D x 9 hours on the Letter of Claim in “HD” [1].
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