Aaj Oudrassen Chocken v Oxford University Hospitals NHS Foundation Trust

Hearing dates: 26 th November 2020

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Introduction:

This is an appeal from Master James. A detailed assessment of the claimant's costs took place on 16 ^th–18 ^th December 2019. She assessed the claimant's solicitor's success fee under the conditional fee agreement (CFA) at 50%. The claimant submits that the Master ought to have assessed the success fee at 80%.

Permission to appeal was granted by Mr Justice Morris by Order dated 29 ^th May 2020. By Order dated 24 ^th September 2020 I granted permission to the appellant to vary his grounds of appeal and I extended the time for the respondent to serve a respondent's notice.

A respondent's notice was sealed on 9 ^th July 2020.

The Master's judgment on the point is relatively short, which is unsurprising given that it was one issue in the course of a detailed assessment. The material paragraphs are:

“1. …I think that both sides have hit home with some of their points. For example, I do not think that it is the strongest point to say that the manufacturer of the equipment could have been a corporation that might have folded, only because there was surely an issue as to whether or not the hospital would have a duty to make sure that the equipment was maintained and that the defendant ( sic) was monitored while he was on that equipment. However, having said that, having read out Mr Brearley's letter, he seems to be of the opinion that even monitoring the claimant while he was on the equipment would not necessarily have detected compartment syndrome. I do accept that repatriating the claimant to Mauritius would have made matters substantially more problematic and I think [therefore] risky.

2. Taking everything into consideration, my view is that the 50% risk assessment at the outset was about right. It was not too pessimistic. I think the defendant's suggestion of 25% really is little more than the Part 36 risk, and that would have to be for a much more straightforward case than this turned out to be. We are all aware, or certainly the costs people in the room are all aware, of the case of Bensusan v Freedman. In that case, 20% was allowed in a clinical negligence case on the basis that a dentist dropped an instrument down a client's throat during a dental procedure. I think it was the Senior Costs Judge who said, based on that, there is such a thing as a straightforward clinical negligence case. This case was clearly an order of magnitude more complicated than that example. There could have been other causes of the compartment syndrome, there could have been an issue as to whether the claimant did initially report agonising pain or only discomfort, as the records recorded and so on and so forth. I think that 50% at the outset was the correct rate.

3. I am troubled by the increase to 80% on issue of proceedings in a circumstance such as this whereby at the point proceedings were issued, the claimant had already known for some time, and certainly well over a year, that liability was not contested. There may have been the option to negotiate an extension of limitation, I know not. Mr Latham addresses me on the basis that that is a possibility. I do not know whether that was actually attempted and rejected or what the situation was.

4. Be that as it may, at the time that proceedings were issued, the claimant in effect already knew that liability was not going to be vigorously defended and that the battle royal in this case was going to be about quantum. To that extent Mr Corness's submissions hit home because, as he says, in a battle about the money, the fact is the win is already in the bag unless the claimant takes it all the way and fails to beat a Part 36. The settled law on that tends to suggest that the risk adherent to that is relatively low and also tends to suggest that adding the 50% to, say, 20% for the Part 36 risk would probably still be too much. I would not wish to give a decision that suggests that if this had gone to trial 100% would have been too much, because I do not think it would. At the point where the defendant would screw its courage to the sticking place and say, “we think we're going to win on our Part 36 offer,” the costs inherent in a trial would effectively wipe out any benefit that the firm had from this and possibly a good chunk of the claimant's damages as well. However, it did not get to that stage and did not get near to that stage.

5….the defendant's point on the trigger of the 50% rising to 80% has hit home and therefore the success fee that I think is reasonable and proportionate to allow on the facts in this case is the stage 1 success fee of 50%, which I appreciate is more than the defendant was offering and less than the claimant was seeking.

(Mr Latham then sought clarification asking “is your finding that there ought not to have been an increase at all until trial?” The Master continued:)

6. On the facts in this case the difficulty that you face is this: on the indemnity principle you set your triggers where you set your triggers and you set a trigger on the issue of proceedings. On the facts of this case the issue of proceedings did not increase the risk at all. You already knew that you had a win for a year and a half. Based on the fact that the success fee is meant to reflect the risk of a win or not winning and not getting your costs, in my view 50% is where this one belongs throughout. I am not saying that 100% would have been unreasonable had it got to trial or even within 45 days of trial, but it did not.

(Mr Latham pointed out that the Master had said that it did not increase the risk because the claimant already knew that it had the win for a year and a half. The Master replied “yes”. Mr Latham then said that as he understood it, when the success fee triggers were set that was not known to those instructing him, to which the Master replied “I appreciate that”. The Master continued:)

7. Bearing in mind that we are on the standard basis of course, but to that extent I have more in accord with what the defendant is saying than with what the claimant is saying. There are sometimes cases where one can agree an extension of limitation and so on and so forth. That submission is fighting against the submission that the claimant could have been deported in 2015. You either have to get on with it because he is going to leave the country or the defendant is at fault for not agreeing an extension and so on and so forth.

8. But the main point is this: for a case of this severity and of this value, even with the admission of liability, you were always likely to have to issue proceedings. It may perhaps have been more reasonable to set a trigger at the point at which proceedings become contested, perhaps by imposing a trigger of X-amount of weeks after issue or X-amount of weeks after service, or indeed upon receipt of a fully pleaded defence. In my view, the defendant's submission that you were in effect setting a trigger that was more or less guaranteed to take effect, is one that I think has hit home.”

Background facts

The claimant suffered from a genetic disorder causing premature fusion of certain skull bones which prevent the skull from growing normally and affect the shape of the head and face. He underwent lengthy surgery at the defendant hospital on 21 ^st February 2012. He awoke experiencing pain in his legs and feet. He was assured by nursing staff that this was likely to be an effect of his being laid still for a lengthy period before during and after surgery. He was advised to walk around the ward and keep moving, which he did. On 22 ^nd February 2012 his pain continued and he was examined and referred for surgical investigation. On 23 ^rd February 2012 he was taken to theatre and examined under general anaesthetic, whereupon compartment syndrome was diagnosed and fasciotomy was performed from knee to ankle. This surgery released the pressure in the claimant's legs and his pain subsided. He was nevertheless left with significant and permanent leg damage.

At first the claimant believed that the machine operated pressure cuffs applied to his legs during and post-surgery may not have operated correctly, following his transfer to the Intensive Treatment Unit after his surgery. Subsequently those machines were tested and found to be in good working order.

The claimant instructed solicitors and entered into a conditional fee agreement with them. This is dated 3 ^rd December 2012. The CFA provided for the following staged success fee:

Stage 1 – if the claim is concluded at any time before service of proceedings, 50% success fee

Stage 2 – if the claim is concluded not less than 45 days before the date fixed for trial, 80% success fee

Stage 3 – if the claim is concluded at any time thereafter, 100% success fee.

On 24 ^th April 2013 a letter of claim was sent to the defendant. On 11 ^th September 2013 a letter of response was received from the defendant, admitting breach of duty subject to causation. No offers to settle were made before issue of proceedings. Proceedings were issued on 13 ^th February 2015. On 7 ^th May 2015, prior to the service of proceedings, the defendant made a Part 36 offer to settle in the sum of £250,000. On 10 ^th June 2015 proceedings were served, and on 29 ^th July 2015 judgment was entered with damages to be assessed....