ABC (A protected party proceeding by his wife and litigation friend DEF) v Barts Health NHS Trust
| Jurisdiction | England & Wales |
| Judge | HHJ McKenna |
| Judgment Date | 11 March 2016 |
| Neutral Citation | [2016] EWHC 500 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ13X05588 |
| Date | 11 March 2016 |
[2016] EWHC 500 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge McKenna
Case No: HQ13X05588
Henry Witcomb QC (instructed by Tees Law Solicitors) for the Claimant
Claire Toogood (instructed by Kennedys Solicitors) for the Defendant
Hearing date: 7 March 2016
Introduction
In this action, the Claimant, ABC who is a protected party who brings his claim by his wife and litigation friend DEF, has pursued a claim for damages in respect of the delay on the part of the Defendant, Barts Health NHS Trust, in his treatment on 30 th January 2003 at Whipps Cross Hospital after he suffered a dissection of his aorta which was not diagnosed and only identified some 20 days later on 19 th February 2003 which in turn led to a surgical repair on 20 th February 2003.
It is the Claimant's case that the dissection created an abnormality in his aorta – a false lumen – which due to the negligent delay between 30 th January and 20 th February 2003, failed to heal when, with timely surgical repair shortly after 30 th January 2003 it would have healed. In addition it is said that this abnormality went on to cause a thrombus or blood clot to form in the aorta and to travel to and occlude the left middle cerebral artery causing a catastrophic infarction of his brain on 5 th April 2006. It is also contended that the negligence also prevented the Claimant from undergoing renal transplantation.
Breach of duty was admitted at a relatively early stage in the Defendant's letter of response dated 21 st April 2014. In particular the Defendant admitted that the aortic dissection should have been diagnosed on 30 th January 2003, that successful surgical repair should have followed shortly thereafter and that there was a negligent delay in diagnosis between 30 th January and 20 th February 2003.
Initially, however, causation of any injury, loss and damage was denied. However on 23 rd April 2015 the Defendant amended paragraph 22.3(c) of its defence to admit that the admitted breach of duty caused the Claimant to suffer some injury necessitating a fasciotomy and a femoro-femoral crossover bypass graft repair (which had been carried out on 20 th February 2003 at the same time as the repair to the dissection in the aorta). This surgery was necessary because the false lumen had descended to the femoral and iliac arteries on 19 th February 2003 when it had not done so before that date and would not have done so with competent care. The injury is discrete and according to the Defendant only sounded in general damages for pain and suffering.
The Defendant denied that its negligence resulted in the Claimant being unable to undergo renal transplantation and his suffering the extensive left-sided middle cerebral artery infarction which occurred on 5 th April 2006.
There were therefore a number of distinct issues in the litigation:
i) Breach of duty and delay in surgery (which was admitted in February 2014).
ii) The extent of the surgery in 2003 where in its amended defence, the Defendant admitted that fasciotomy and femoro-femoral crossover bypass graft would have been avoided but for the delay in surgery.
iii) Causation and consequences of the stroke in 2006 and the Claimant's inability to undergo renal transplantation.
It is fair to say that it is this third issue which gives rise, on the Claimant's case, to the overwhelming majority of the claim (put at in excess of £1 million plus annual payments of in excess £230,000 in the Claimant's schedule of loss) and in respect of which all the very extensive quantum expert evidence and therefore costs were incurred.
The trial of this action was due to commence on 7 th March 2016. However, on 24 th February 2016 the Claimant accepted the Defendant's Part 36 offer of £50,000 (inclusive of an interim payment of £25,000) which offer had in fact expired on 24 th June 2015 (it having been made on 4 th June 2015). The offer was expressed to be a settlement of the whole of the Claimant's claim. The Claimant being a protected party pursuant to CPR 21.10 the court's approval for the terms of settlement was necessary and on 7 th March 2016 this court formally approved the terms of settlement.
Unfortunately the parties were not able to agree liability for costs which therefore must be determined by this court pursuant to CPR 36.13(5) and it is to that issue that this judgment is directed.
The Law
The following provisions of the CPR are relevant:
"36.13(5) Where paragraph (4)(b) applies but the parties cannot agree the liability for costs, the court must, unless it considers it unjust to do so, order that—
(a) the claimant be awarded costs up to the date on which the relevant period expired; and
(b) the offeree do pay the offeror's costs for the period from the date of expiry of the relevant period to the date of acceptance.
(6) In considering whether it would be unjust to make the orders specified in paragraph (5), the court must take into account all the circumstances of the case including the matters listed in rule 36.17(5).
36.17(5) In considering whether it would be unjust to make the orders referred to in paragraphs (3) and (4), the court must take into account all the circumstances of the case including—
(a) the terms of any Part 36 offer;
(b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;
(c) the information available to the parties at the time when the Part 36 offer was made;
(d) the conduct of the parties with regard to the giving of or refusal to...
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