Zeromska-Smith –v- United Lincolnshire Hospitals NHS Trust  2 WLUK 375
In the recent case of Zeromska-Smith –v- United Lincolnshire Hospitals NHS Trust  2 WLUK 375 before Martin Spencer J, on 22nd February 2019 the position on a Party changing their stance and the consequential amendments of Budgets was considered.
The matter related to a Quantum Only Trial against the NHS, who had admitted liability that as a result of the alleged negligence, the Claimant’s child had been stillborn. It was the Claimant’s case that she had suffered Psychiatric injury as a result.
The NHS had not specifically denied causation in relation to the Claimant’s Psychiatric injury and agreed that Judgment be entered for the Claimant, therefore the Claimant took that, combined with other correspondence, to be tantamount to an admission that the Claimant had suffered psychiatric injury. However, the NHS subsequently obtained Expert Evidence which concluded that the Claimant had not suffered Psychiatric injury. This evidence was available to the Defendant at the time of the original Cost Budget Hearing in September 2017, but was not served on the Claimant until August 2018.
Given the Defendant’s change in position, the Claimant applied to vary her Cost Budget to allow for the instruction of Leading Counsel, however, the Application was rejected, and the Claimant appealed on the basis that the Judge had erred in finding the matter to be a case management decision. It was her case that the judge had failed to appreciate that the Defendant was now saying that there was no psychiatric injury rather than disputing the extent of the injury, which was a change of position.
The Appeal was allowed on the basis that there had been a change in position from the Defendant admitting the psychiatric injury to their position being that there was no injury. Whilst the difference in Quantum was not significant, Martin Spencer J found the Master had failed to appreciate the qualitative difference arising from the change in position, and therefore updating the Budget to allow for the instruction of Leading Counsel was justified.
This is a helpful finding for parties faced with opposing parties changing their position on Budgeted matters.
It is also important to note that the Judge did not merely consider the effect on quantum when deciding whether the change in position amounted to a significant development. The financial difference was said to be in the region of £10,000.00, however Martin Spencer J recognising that the qualitative rather than quantitative difference justified the additional cost of instructing Leading Counsel and therefore revising the Budgets.
Previous Case Law of Warner -v- The Pennine Acute Hospital NHS Trust, Churchill –v- Boot and Sharp -v- Blank & Ors has suggested that the threshold for revising a Budget is extremely high, and therefore this is good news for Claimants as the Court is willing to consider all aspects when revising a Budget and not just the quantitative impact.
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