I v Hull & East Yorkshire Hospitals NHS Trust
In the recent case of I v Hull & East Yorkshire Hospitals NHS Trust, His Honour Judge Robinson ordered that the Defendant make a further payment on account in respect of unfinished quantum costs in the sum of £150,000.00.
This was a clinical negligence claim where the Claimant sustained a catastrophic birth injury. The matter had been ongoing for some time and in 2012, the Court approved a liability settlement at 90% in the Claimant’s favour. At the same time, the Court ordered the Defendant to pay the Claimant’s reasonable costs to date, subject to detailed assessment. Voluntary payments were made by the Defendant totalling £215,000.00.
Following resolution of the liability aspect of the claim, work then commenced on quantifying the Claimant’s injuries and payments on account of damages were made by the Defendant in the total sum of £1.2 million.
It then became clear that the quantum aspect would not be able to be fully determined until 2022. As a result of the Claimant’s significant incurred costs, estimated to be in the region of £700,000.00, the Claimant requested that the Defendant agree a further payment on account of costs. This was not agreed by the Defendant.
At a telephone hearing, the Defendant argued that there was no precedent for the Claimant to be entitled to their quantum costs before quantum had even be resolved. The Claimant’s Solicitors argued that they should not foot the costs of their own legal advice and fees of experts where the Defendant had admitted liability.
District Judge Batchelor said that she was troubled that there had not been a detailed assessment of the costs incurred on liability. If it then transpired that the Claimant was “dreadfully out of pocket”, that would be the time to consider an interim payment.
The decision was appealed by the Claimant and His Honour Judge Robinson agreed with the Claimant and said that in this case, the Court could order a payment on account of costs as there was no danger of the Claimant’s Solicitors being overpaid, as undue risks were not likely to be taken by experienced Solicitors and Counsel.
His Honour Judge Robinson said that the failure to ensure adequate cash flow during the period of inevitable delay may lead to the perverse and undesirable consequence that Solicitors are unwilling to take on cases such as this at an early stage. The consequence is that Solicitors must then fund the quantum investigation for 10 years or so, meaning they may not be anxious to take the case on early.
This is a good outcome for those Solicitors dealing with long running cases in clinical negligence matters where damages cannot be quantified until years later.
If you have any further questions or require MRN’s assistance, please Ask the Experts!