Rebecca Louise Mitchell v Dr Carole Gilling-Smith
| Jurisdiction | England & Wales |
| Judge | Master Leonard |
| Judgment Date | 21 August 2017 |
| Neutral Citation | [2017] EWHC B18 (Costs) |
| Docket Number | Case No: HQ15C03768 |
| Court | Senior Court Costs Office |
| Date | 21 August 2017 |
[2017] EWHC B18 (Costs)
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas Moore Building
Royal Courts of Justice
London WC2A 2LL
Master Leonard
Case No: HQ15C03768
SCCO reference CL1701915
Matthew Waszak (instructed by Irwin Mitchell LLP) for the Claimant
Robin Dunne (instructed by Acumension Ltd) for the Defendant
Hearing dates: 6 June 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Master Leonard Master Leonard I am assessing (on the standard basis) the costs of the Claimant, payable by the Defendant under the terms of a Tomlin order dated 17 May 2016. I am required to address a challenge to an ATE premium of £10,000 plus Insurance Premium Tax (IPT) included in the Claimant's bill of costs.
ATE premiums incurred since 1 April 2013 are, with specified exceptions, irrecoverable under orders for costs between parties. The Claimant seeks recovery under an exception provided for under section 58C of the Courts and Legal Services Act 1990 and Regulation 3 of the Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (No 2) Regulations 2013 ("the 2013 Regulations").
The material provisions of section 58C are:
"Recovery of insurance premiums by way of costs
(1) A costs order made in favour of a party to proceedings who has taken out a costs insurance policy may not include provision requiring the payment of an amount in respect of all or part of the premium of the policy, unless such provision is permitted by regulations under subsection (2).
(2) The Lord Chancellor may by regulations provide that a costs order may include provision requiring the payment of such an amount where—
(a) the order is made in favour of a party to clinical negligence proceedings of a prescribed description,
(b) the party has taken out a costs insurance policy insuring against the risk of incurring a liability to pay for one or more expert reports in respect of clinical negligence in connection with the proceedings (or against that risk and other risks),
(c) the policy is of a prescribed description,
(d) the policy states how much of the premium relates to the liability to pay for an expert report or reports in respect of clinical negligence ("the relevant part of the premium"), and
(e) the amount is to be paid in respect of the relevant part of the premium…"
Regulation 3 of the 2013 Regulations says:
Costs order may require payment of an amount of the relevant part of the premium
(1) A costs order made in favour of a party to clinical negligence proceedings who has taken out a costs insurance policy may include provision requiring the payment of an amount in respect of all or part of the premium of that policy if—
(a) the financial value of the claim for damages in respect of clinical negligence is more than £1,000; and
(b) the costs insurance policy insures against the risk of incurring a liability to pay for an expert report or reports relating to liability or causation in respect of clinical negligence (or against that risk and other risks).
(2) The amount of the premium that may be required to be paid under the costs order shall not exceed that part of the premium which relates to the risk of incurring liability to pay for an expert report or reports relating to liability or causation in respect of clinical negligence in connection with the proceedings."
It is not in issue, in this particular case, that the ATE premium incurred by the Claimant falls within the statutory provisions for recoverability. The Defendant takes issue with the premium that the Claimant seeks to recover, arguing that it is disproportionate, unreasonably incurred and unreasonable in amount.
The Background
The following account of events is derived largely from a detailed narrative to the Claimant's bill of costs. The facts as set out in that narrative are not, to the best of my knowledge, contested, at least insofar as they are repeated here.
The claim was for negligent treatment, in September 2012, of an ovarian endometrioma. It was the Claimant's case that this had been misdiagnosed by the Defendant as a simple cyst; that the treatment received by the Claimant was therefore inappropriate; that the Claimant did not receive an adequate explanation of the potential risks and benefits of the procedure to allow her to give informed consent to the treatment; and that as a result of the Defendant's breaches of duty she suffered serious and continuing complications including a severe abdominal infection, abdominal bleeding, pelvic inflammation, and (following further surgery) an incisional hernia.
These complications resulted in severe discomfort and distress and repeated hospital admissions between October 2012 and August 2013, with continuing treatment including further surgery to March 2015.
The Claimant instructed her solicitors, Irwin Mitchell, in June 2013. Following receipt and review of medical records, in January 2015 Irwin Mitchell instructed Professor Cheong, a consultant in gynaecology and obstetrics. Professor Cheong's initial report was received in February 2015.
Professor Cheong reported to the effect that the treatment received by the Claimant had not been to an adequate standard. His opinion was that, had she received appropriate treatment, on the balance of probabilities she would not have suffered the severe complications which followed her surgery and she would not have suffered the damage sustained to her ability to conceive.
Irwin Mitchell sent a formal Letter of Claim to the Defendant on about 17 March 2015. The Medical Defence Union responded on behalf of the Defendant on 23 March 2015 and indicated that they would require the Claimant's medical records in order to investigate the potential claim. On about 8 April 2015 the Defendant's solicitors, Nabarro LLP, confirmed that they had been instructed.
On 7 August 2015, Irwin Mitchell requested confirmation as to when they were to receive a Letter of Response, due under the Clinical Negligence Protocol (by their calculation) on 8 August. They also put the Defendant on notice that as the limitation period would expire on about 23 September 2015, the Claimant would issue proceedings without further notice in order to protect the limitation position.
The reply, in a letter dated 10 August 2015, was that the Defendant was still waiting for expert evidence and was not in a position to provide a Letter of Response. Irwin Mitchell then confirmed that the proceedings would be issued and an extension of time sought for service.
A Condition and Prognosis report was received from Professor Cheong in August 2015 and a further Condition and Prognosis report received from Mr Smith, a consultant colorectal and general surgeon, in September 2015.
Protective proceedings were issued on 7 September 2015.
In a letter dated 1 October 2015, Irwin Mitchell asked the Defendant to provide a timeframe for service of the Letter of Response. They also confirmed that they would now commence work in preparation for service of proceedings. Proceedings were served upon the Defendant, through Nabarro LLP, under cover of a letter dated 11 December 2015.
After extensions of time the Defendant served a defence on about 4 March 2016. Breaches of duty were admitted to a limited extent, and causation to a very limited extent, extending only to initial abdominal inflammation. The severity of that information, and its sequelae, were not admitted. Contributory negligence was alleged in failing to advise the Defendant, before treatment, of medical advice previously received by the Claimant elsewhere.
There were significant differences between the parties about the directions to be given. The Claimant argued for directions based upon the proposition that in view of the admitted breach of duty, the Defendant could not escape liability for injury sustained by the Claimant and in consequence, that expert evidence would be needed only in relation to causation, condition and prognosis and quantum. The Defendant did not agree. The Claimant proposed that judgment to be entered for the Claimant for damages to be assessed. On 18 April 2016, the Defendant rejected that proposal, given that neither breach nor causation were fully admitted.
On 6 April 2016, the Defendant had made a Part 36 offer to settle for £150,000 net. This was rejected and on 3 May 2016, the Claimant put forward two alternative Part 36 offers. These were to settle for £200,000 on a provisional basis and £230,000 in full and final settlement.
On 9 May 2016 the Defendant proposed that the parties agreed a stay of proceedings to allow negotiations to continue, and for a joint settlement meeting to be arranged. The Claimant refused to agree to this, on the basis that the Defendant had, to date, delayed in its response to the claim and refused to allow judgment to be entered.
The Defendant rejected the Claimant's Part 36 offers on 11 th May but on 13 May 2016, the Claimant accepted the Defendant's alternative offer of £200,000 plus costs in full and final settlement. The claim, therefore, came to an end about two months after service, the parties subsequently filing a consent order.
Funding
On 10 July 2014, the Claimant signed a conditional fee agreement with her solicitors. They countersigned the agreement on 25 July and on the same date, the Claimant took out an ATE insurance policy with Allianz Insurance Plc ("Allianz"). The policy provided cover, to a limit of £100,000, for medical experts' reports, other disbursements and opponents' legal costs. It is evident, from the schedule of document time appended...
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