COST BITES 114: LOOKING AT DETAILED ASSESSMENTS (3): SCHEDULES OF DAMAGES UNDER THE MICROSCOPE: THEY HAVE NOT BEEN DRAFTED SYSTEMATICALLY, OR WITH PROPER CARE AND ATTENTION
We are continuing with the series where we look closely at what can happen at a detailed assessment and return to the judgment of Cost Judge James in HD v Northern Devon Healthcare NHS Trust  EWHC 2118 (SCCO). The judge considered a number of schedules of damages and found them severely wanting. This had a major effect on the time allowed. The judgment also highlights the need for those drafting schedules to take great care when formulating the claim. The fundamental point, for the purpose of this series, is to highlight how the receiving party’s conduct of a case can come under extremely close scrutiny.
” 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.”
A USEFUL WEBINAR TOMORROW (9th NOVEMBER 2023)
I am presenting a webinar on “Drafting Schedules: Avoiding the Pitfalls and Getting them Right” on the 9th November 2023. Booking details are available here. This deals with the observations made in the HD case and looks at the rules, cases and guidance on drafting a Schedule of Damages. Its aim is to help practitioners avoid the problems that are regularly identified by judges.
The judge was assessing costs in a number of clinical negligence cases relating to vaginal mesh cases.
Judgment on Schedules of Loss
 This Preliminary Issue comes from the Precedent G at Point 11, items 20 to 22 – Documents, on pages 28/29 where the Defendant has isolated 20 separate attendances totalling 31.3 hours spent drafting the Schedule of Loss in “HD”. In her Skeleton Argument Ms McDonald gives the following times and details in respect of this Preliminary Issue (the final, ‘total’ row is my own).
|Claimant||Time spent||Preliminary Sched*||Updated Sched**||Dams (settled)||% of claim|
 In her table, Ms McDonald stated that “CT” spent 8.8 hours ‘plus general reviews of evidence’, “HL” was said to be 5.8 hours ‘plus general reviews’ and “CB” was 5.2 hours ‘plus 24 hours mixed with Letter of Claim.’ That is unhelpful; I have already ruled upon Letter of Claim in “HD” and given an indication on the other Letters of Claim, including “CB”. If I now rule upon those 24 hours under this heading it could constitute double jeopardy.
 Likewise, general reviews appear in the Points of Dispute as a separate heading: I think it best to rule upon a reasonable amount of time for the Schedule of Loss in “HD” and to avoid these ‘overlapping’ Points in giving an indication on the remaining Schedules. By all means, should it come to a line item assessment Ms McDonald can take me to the ‘general reviews’ and any ‘mixed’ items; if at that time the only explanation for them, has to do with the Schedules of Loss, then they will be liable to disallowance in the usual way. 
 Ms McDonald’s submissions were short and to the point; the Schedules were pleaded at figures well in excess of the ultimate settlement value achieved; as such, far too long was spent in trying to plead completely unrealistic and over-pleaded Schedules. In “HL” a pleaded claim in excess of three quarters of a million pounds, settled at £30,000.00. Put as a fraction that claim was pleaded at over 25 times the amount achieved in settlement of the claim. The remaining claims were pleaded at approximately 18 times (“CM”) 15 times (“CB”) 12.5 times (“HD” and “CH”) and 8 times (“CT”) the amounts achieved in settlement.
 In fact, given that the settlement figures would have included an (unspecified) element of General Damages for pain, suffering and loss of amenity, the percentages and proportions must, per Ms McDonald, be even lower, although she acknowledged that because of the terms of the settlements, it is not possible to say how much of (say) Ms “HD”’s £47,500.00 represents General Damages and how much represents Special Damages.
 Mr Dunne asserted that the Schedules of Loss were time-consuming; various factors changed over time and in particular the discount rate changed during the currency of these cases. Other factors required adjustment, for example in “HD” the Claimant had thought that she would have to give up work, and had put forward a significant claim for future loss of earnings. Per Mr Dunne, only upon being able to secure less congenial, but well-enough paid employment (albeit in a different role) was the Claimant able to mitigate those future losses and abandon that element of her claim; this was, in his submission, a point in her favour.
 Ms McDonald did not see it that way and commented several times to the effect that this Claimant was seeking a six-figure sum for future loss of earnings and only dropped it on the eve of the Mediation when records (I believe from Occupational Health) showed that she had not been working reduced hours and had not lost any wages despite that claim. Nor did she accept Mr Dunne’s submission that the low settlements reflected litigation risk: they were over-pleaded and should be assessed at their true values.
 To be clear, I have dealt with the Schedules of Loss on their own merits. If the Defendant is still minded to raise Misconduct/CPR 44.11 at the next Hearing in May 2023, this may be one of the issues to which they intend to refer – that was certainly the impression that I got at the last Hearing, but this is not a Judgment upon Misconduct. The served Schedules have many common features, as follows (I have looked at the draft/unserved Schedules as well):
LOOKING AT THE SCHEDULES IN DETAIL
The judge then considered the schedule of loss in each case in considerable detail, by way of table comparing the similarities and differences.