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 [2023] 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 CASE

The judge was assessing costs in a number of clinical negligence cases relating to vaginal mesh cases.

Judgment on Schedules of Loss

[61]      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).

[62]      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.

[63]      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. [4]

[64]      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.

[65]      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.

[66]      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.

[67]      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.

[68]      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.

[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.

Conclusion

[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, 14^th 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.