Melissa Cutting v Dr Asim Islam

JurisdictionEngland & Wales
JudgeMrs Justice Patterson
Judgment Date14 May 2014
Neutral Citation[2014] EWHC 1515 (QB)
Docket NumberCase No: TLO/13/0309
CourtQueen's Bench Division
Date14 May 2014

[2014] EWHC 1515 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand. London. WC2A 2LL

Before:

Mrs Justice Patterson

Case No: TLO/13/0309

Between:
Melissa Cutting
Claimant
and
Dr Asim Islam
Defendant

Sarah Lambert (instructed by Gadsby Wicks) for the Claimant

Claire Toogood (instructed by Berrymans Lace Mawer) for the Defendant

Hearing date: 6th May 2014

Mrs Justice Patterson

Introduction

1

On the 17 th March 2014 I handed down judgment on liability and invited submissions on the final order and costs.

2

I found that a proportion of Mrs Cutting's allegations of negligence against Dr Islam were proved and were causative of her husband, Mr Goodhead, not receiving earlier treatment for his colorectal cancer. The consequence of that omission was that such treatment, on the balance of probability, would have extended Mr Goodhead's life by a period of some four months until May 2009.

3

At trial the claim was put on two bases. First, that the negligence on the part of Dr Islam caused Mr Goodhead to miss out on treatment that would have been administered with an earlier diagnosis which would have resulted in a complete cure of his cancer. Secondly, that the breach of duty on the part of Dr Islam caused Mr Goodhead to miss out on a complete package of treatment which would have been administered with an earlier diagnosis and would have prolonged his life.

4

Had there been a complete cure for Mr Goodhead the claim was valued by the claimant at £1.5 million. The extent of any prolongation of life was left to the court to determine. Upon that determination damages have been agreed at £50,000.

5

The second basis of claim was made following a re-amendment of the Particulars of Claim which I allowed on the first day of the trial. The reasons for that are set out in the substantive judgment on liability.

6

Issues have remained unresolved between the parties in relation to costs and an amendment that I made to the draft judgment in response to a suggestion by the defendant because of the implications of that paragraph for a costs hearing. Further, in reviewing the judgment handed down I spotted what appeared to be a further typographical error that required correction.

7

In this judgment I deal with the costs arguments first. To understand that it is necessary to go into the chronology of procedural events leading up to the handing down of the judgment on liability and causation which I now do. I then deal with the remaining outstanding matters.

The Facts

8

The claim form was issued on the 3 rd January 2012 alleging negligence on the part of the defendant in the treatment of Mr Goodhead at his surgery on the 6 th April 2005. Damages were claimed on behalf of the claimant and Mr Goodhead's estate.

9

On the 3 rd August 2012 Particulars of Claim were served. The particulars of negligence included allegations that the defendant failed to advise Mr Goodhead to return for a review if his symptoms persisted, and that he lost Mr Goodhead the opportunity to obtain a timely diagnosis. On causation it was accepted that Mr Goodhead would not have survived his cancer but contended that with a diagnosis in 2005 Mr Goodhead would have survived for a period of 6 years and, therefore, would have had a prolongation of life for a further 2–2 1/2 years beyond the time of his sad death in January 2009.

10

On the 12 th November 2012 the defence was served. That denied breach of duty. The defence averred that the progression of Mr Goodhead's disease would have been similar to that which occurred in any event and that he would have developed peritoneal metastasis and ascites and would have died of his disease in January 2009.

11

On the same day the defendant's solicitors wrote to the solicitors acting for the claimant inviting them to discontinue their case against the defendant. They contended that even if earlier referral to a consultant had taken place there would have been no extended life expectancy for Mr Goodhead. The letter enclosed a report from Professor Price dated 20 September 2012 on causation on a without prejudice basis.

12

On the 14 th November 2012 Mr Wicks of the claimant's solicitors spoke to Ms Swanton at the defendant's firm and indicated that it was unlikely that the claimant would be discontinuing. The parties agreed that the proceedings would be stayed and the position reviewed after the claimants had received further expert advice on Professor Price's report. At that stage a decision would be made as to the way forward.

13

On the 3 rd December 2012 the claimant wrote to the defendant informing them that the Particulars of Claim needed amending based upon an expert report they had received from Professor Stebbing who they had instructed on oncological matters.

14

On the 7th of January 2013 the defendant sought an early discussion between the experts on oncology.

15

On the 12 th February 2013 an amended Particulars of Claim was served. In that, the particulars of negligence remained as before but amendments were made in relation to causation. It was said that in 2005 the claimant did not have metastatic disease. On the balance of probabilities in May 2005 Mr Goodhead had a polyp or early primary rectal tumour. With chemo-radiotherapy and/or surgical resection he would have survived his cancer. All allegations about prolongation of life were deleted.

16

At the case management hearing on the same day the parties agreed that the claimant was to have permission to amend the Particulars of Claim and agreed a timetable for the service of an Amended Defence together with directions for the progress of the case.

17

On the 5 th March 2013 witness statements were exchanged. On the 6 th March 2013 the Amended Defence was served. Breach of duty was denied as was causation. It was averred, on the balance of probabilities, that Mr Goodhead had metastatic disease in both his liver and bone in May 2005. The metastasis may not have been visible on imaging. It was contended that Mr Goodhead had a primary rectal tumour which was present in May 2005. It was denied that surgical intervention would have been curative as the metastasis was too widespread.

18

On the 22 nd April 2013 the defendant served the medical reports upon which it would be relying, namely, from Dr Norfolk, the general practitioner, from Professor Scholefield, the colorectal surgeon, and Professor Price, the oncologist. They were disclosed on a without prejudice basis. The claimant was invited to discontinue against Dr Islam and meet the defendant's costs in the sum of £10,000.

19

On the 11th June 2013 the claimant served its expert evidence from Dr Shutkever, general practitioner, Mr Antrum, colorectal surgeon and Professor Stebbing. The latter commented on the report of Professor Price.

20

On the 12th June 2013 a case management conference took place. The claimant obtained permission for a forensic accountant on the basis that the claim was worth about £1.4 million.

21

On the 26th June 2013 the claimant served a schedule of loss totalling £1,455,811 excluding general damages together with the report bf a forensic accountant.

22

On the 30th August 2013 the defendant served a counter schedule totalling £961,631 together with the report of a forensic accountant.

23

On the 23rd November 2013 the oncologists agreed a joint statement. They agreed there would have been microscopic metastatic disease present in May 2005.

24

A joint statement of the general practitioners was agreed on the 27 th November. On the 8 th December 2013 a joint statement was agreed between the colorectal surgeons.

25

On the 16 th December 2013 the defendant served a supplemental report of Professor Price and suggested that the claimant discontinue the proceedings on the basis that she paid about 50% of the defendant's costs. That was on the basis of Professor Stebbing's concession in the joint statement that micro-metastasis were present in 2005. It was said that meant that the claimant could not succeed on her case that treatment would have been life saving.

26

On the 3 rd January 2014 the claimant made a part 36 CPR offer that she would accept a sum equal to 65% of the total value of the claim to be agreed or assessed by the court on the basis that Mr Goodhead would have been cured of his cancer.

27

On the 6 th January 2014 the defendant served a supplementary report from Professor Scholefield dated 19 th December 2013.

28

On the 6 th January 2014 there was a round table meeting at which the defendant offered a "drop hands" settlement.

29

On the 7 th January 2014 the defendant rejected the part 36 offer made by the claimant and formalised its offer of discontinuance with no order as to costs. The defendant invited the service of any supplementary evidence as a matter of urgency and in any event by the 10 th January.

30

On the 9 th January 2014 the claimant served the supplementary report of Professor Stebbing.

31

On the 16 th January 2014 the claimant offered to accept £250,000 plus costs.

32

On the 20 th January 2014 the claimant served the first draft of the re-amended Particulars of Claim.

33

On the 21 st January 2014 the claimant served a further supplementary report from Professor Stebbing dated 17 th January.

34

On the 22 nd January 2014 the defendant repeated the "drop hands" settlement offer.

35

On the 23 rd January 2014 the claimant offered to accept £100,000 plus costs. Quantum was agreed at £1.25 million on full liability.

36

On the same day the defendant offered £100,000 inclusive of costs. Due to the email containing the offer arriving in the junk email box of junior counsel for the claimant the claimant remained unaware of the offer but has confirmed that had she been so aware the offer would have been rejected.

37

No further offers were made by either party.

38

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2 cases
  • Chong and Others v Alexander and another
    • United Kingdom
    • Chancery Division
    • 8 April 2016
    ...the Claimants' case in order should therefore apply. (4) This "usual rule" should be contrasted with what happened in Cutting v Islam [2014] EWHC 1515 (QB); [2014] 4 Costs L.O. 652, because is that case the amendment had not substantially altered the case which the Defendant had to meet – w......
  • Rotam Agrochemical Company Ltd v Gat Microencapsulation Gmbh (formerly Gat Microencapsulation Ag)
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 8 November 2018
    ...it cannot expect to secure costs protection. …” 14 Rotam also drew my attention to the decision of Patterson J in Cutting v Islam [2014] EWHC 1515 (QB), [2014] 4 Costs LO 652. There the claimant had recovered only just over 3% of her original claim. Patterson J found that nevertheless the c......

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