Miss Courtney Webb (by her Litiagation Friend Miss Stacey Keira Perkins) v Liverpool Womens' Nhs Foundation Trust
| Jurisdiction | England & Wales |
| Judge | HH Judge Saffman |
| Judgment Date | 01 April 2015 |
| Neutral Citation | [2015] EWHC 449 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No:3LS91531 |
| Date | 01 April 2015 |
[2015] EWHC 449 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
LEEDS DISTRICT REGISTRY
The Court House
Oxford Row
Leeds LS1 3BG
His Honour Judge Saffman sitting as a Judge of the High Court
Case No:3LS91531
Mr N Sheldon for the Claimant
Mr B Martin for the Defendant
Hearing date: 29 January 2015
Circulated to Parties in Draft 18 February 2015
Handed Down 1 April 2015
Introduction
On 28 January 2015 I handed down my reserved judgment on the issue of liability in this case in which the claimant alleged that the defendant's management of her birth on 25 October 1999 had been negligent with the result that she suffered a Brachial Plexus Injury as a result of shoulder dystocia.
In principle the claimant's allegations fell into two main parts.
a. That, during the labour of the claimant's mother (who is her litigation friend), the need for a Caesarean section was indicated at about 13.50 hours on 25 October and on no less than 3 occasions thereafter but, negligently, no Caesarean section was performed and instead the defendant negligently decided that the birth should be allowed to proceed to a vaginal delivery. (The First Limb)
b. That the vaginal delivery itself was negligently managed because the midwives undertaking it failed to adopt recognised procedures to deal with the shoulder dystocia that the claimant suffered in the course of the vaginal delivery. (The Second Limb)
I found for the claimant in that I concluded that the defendant's employee had indeed been negligent in deciding not to proceed to a Caesarean section at 13.50 hours but I was not satisfied that the claimant had established liability in respect of the defendant's conduct at any other stage of the labour prior to delivery nor was I satisfied that she had done so in respect of her claim under the Second Limb.
The effect of my finding is that the defendant is liable to the claimant for 100% of her damages even though the claimant was unsuccessful in many of her specific allegations.
On 1 October 2014 the claimant made a Part 36 offer to settle liability on the basis that she received 65% of the damages that would accrue on a 100% basis. That was rejected on 9 October. There are no other Part 36 offers but on 10 October the defendant repeated in writing an offer that it had made verbally at a settlement meeting on 1 October that it would settle on the basis that the claimant received 30% of the damages.
It is of course not disputed that my judgment is more advantageous to the claimant than the proposal contained in the Part 36 offer. On 28 January therefore when the judgment was handed down Mr Sheldon, counsel for the claimant, contended that the consequences of Part 36.14(3) should apply and that the claimant should have all her costs on an indemnity basis from the expiry of the relevant period plus interest thereon at the enhanced "Part 36 rate" plus the enhancement of damages specified in 36.14(3)(a) and (d).
The defendant's position was that the consequences of Part 36.14(3) should be disapplied because, by reference to Part 36.14(4), in the circumstances it would be unjust to apply them. Furthermore Mr Martin argues that even if Part 36 is not disapplied, it does not prevent the court from making an issues based or proportionate costs order to reflect the fact that the claimant failed in respect of the Second Limb bearing in mind that the Second Limb was a discrete and independent allegation. In other words, that, at best, the claimant should have her costs with the Part 36 enhancements in respect of the work referable to the First Limb claim but that she should not be awarded costs for the unsuccessful prosecution of the Second Limb of her claim at all, much less with any Part 36 enhancements.
Furthermore, Mr Martin for the defendant argued that even in respect of any costs awarded to the claimant the court has discretion to permit some but not necessarily all of the Part 36 enhancements in respect of costs and damages and can decline to do so if permitting them would lead to an injustice. Mr Martin contended that it would indeed be unjust to permit all the enhancements on those costs awarded to the claimant even though she had bettered her Part 36 offer.
For reasons that I shall come to the claimant does not accept the proposition that a proportionate costs order is even permissible where a Part 36 offer has been made and which the defendants have failed to beat or that an application of all the consequences envisaged by Part 36.14(3) would lead to injustice.
On 28 January I concluded that it was not unjust for the consequences of Part 36 to apply in principle. In the time available however it was impossible to resolve the issue as to whether a proportionate costs order was appropriate to reflect the claimant's want of success on the Second Limb and whether the existence of a Part 36 offer had a bearing on whether a proportionate costs order was permissible and/or appropriate in any event. Equally it was not possible to consider whether it was appropriate to disallow any of the enhancements otherwise due to the claimant in the circumstances.
Preliminary Comments
Before I deal with these issues I feel constrained to observe that the draft judgment on the liability trial was circulated to the parties on 27 November 2014 but it was not until 26 and 27 January 2015 that I received skeleton arguments on the issue of costs (and other issues) from counsel for the defendant and the claimant respectively. These were sent in anticipation of the handing down of judgment which it will be remembered was listed for the 28 January and for which 30 minutes had been allocated, as the parties well knew.
Mr Sheldon's skeleton argument made it clear that there were 6 issues that needed to be resolved on 28 January. The first 2 were the issues as to costs identified above. The second of those, namely the impact that a Part 36 offer has on the appropriateness of a proportionate costs order is regarded by both counsel as an important and perhaps novel proposition of law.
The remaining 4 cover amendments to costs budgets, payments on account of costs, interim payment of damages and the defendant's application for permission to appeal the substantive judgment. As I understand it, only one of these namely an interim payment of £25,000 was actually agreed. Mr Martin's skeleton argument added one further issue; that related to the issue of permission to rely on expert psychological evidence about which at that stage there was also an absence of agreement.
At my request on 27 January the Court staff emailed counsel to ask if they seriously believed that all these matters (about which I had had a 12 page skeleton from Mr Sheldon and a 9 page skeleton from Mr Martin) could be resolved in the 30 minutes allocated bearing in mind that I had a part heard trial starting at 10.30. The response was that 30 minutes was adequate and so the hearing went ahead.
It was clear almost immediately that 30 minutes was nowhere near enough. In that time I was able only to deal with the issue as to whether Part 36 should be disapplied to the claimant's costs in so far as she was awarded costs. As a result I was obliged to reserve the question of what proportion of the costs should be recoverable by the claimant and whether any Part 36 enhancements should be disallowed. My order of that date provided for further written submissions and factored in the possibility of a further hearing, albeit by telephone if possible.
I am grateful to both counsel for their courtesy in recognising that their view that these issues could be resolved in 30 minutes was "over-optimistic" as they put it but the fact is that costs and time have been wasted. I make this point first because it may have to be reflected in the order as to costs in respect of the preparation of the further written submissions and any hearing, telephone or otherwise, that may be required to determine all outstanding issues and secondly because it is important to emphasise how important it is that parties give critical and constructive consideration to time estimates and not work on the basis that a hearing will take no longer than the parties merely hope it will take.
Agreed concessions regarding the consequences of Part 36
Mr Martin, counsel for the defendant, has made some sensible concessions in connection with the application of Part 36 in light of my finding that it is not unjust in principle for the consequences of Part 36 to apply to those costs to which the claimant is entitled and which have been incurred after the relevant time.
First, that the claimant is entitled in any event to the additional amount pursuant to CPR 36.14(3)(d). As he states in paragraph 5 of his Supplemental Note on Costs of 8 February, " this was an all or nothing case, the claimant is entitled to her damages in full and thus logically to Part 36 damages enhancements in full".
Secondly, that he does not suggest that there should be a proportionate costs order to reflect the fact that the claimant failed to establish that a Caesarean section should be performed on the 3 occasions after 13.50 hours when she says the opportunity to do so was missed. He accepts that the first limb of the claimant's case was that there should have been a Caesarean section at some time before vaginal delivery and that she succeeded on that. The fact that she was unsuccessful in respect of some of the sub-allegations is not, he accepts, a ground for depriving her of the costs of establishing that the birth was mismanaged by the failure to administer a Caesarean section.
Thirdly, he does not seek the defendant's costs in successfully...
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Miss Courtney Webb (by Her Litigation Friend Miss Stacey Keira Perkins) (Appellant/Claimant) v Liverpool Women's NHS Foundation Trust (Respondent/Defendant)
...THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION LEEDS DISTRICT REGISTRY HIS HONOUR JUDGE SAFFMAN sitting as a Judge of the High Court [2015] EWHC 449 (QB) Royal Courts of Justice Strand, London, WC2A 2LL (Transcript of the Handed Down Judgment of WordWave International Limited Trading as D......