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A roundup of recent decisions and developments relating to the costs of solicitor attendance at rehabilitation case management meetings; secondary victim claims and clinical negligence; guidance on the use of a personal injury trust for an infant claimant expected to have capacity as an adult; and ‘lost years’ claims.
Court of Appeal judgment on costs of solicitor attendance at rehabilitation case management meetings
Hadley v Przybylo [15.03.2024]
On 15 March 2024 the Court of Appeal handed down judgment in this case.
At first instance, Master McCloud had decided at a Case and Costs Management Conference in March 2023 that the costs of the solicitors attending multi-disciplinary team meetings and the like were not in fact recoverable costs of the claim, as they were not ‘progressive’ to the claim.
The Master gave permission for a leapfrog to the Court of Appeal on this point of principle.
On appeal, the defendant averred that the Master had not in fact determined a point of principle, but conceded the general point that costs of attending rehabilitation meetings may in principle be recoverable.
The Court of Appeal determined that a point of principle had been decided by the Master, and allowed the claimant’s appeal.
The position effectively reverts to the status quo before the Master’s judgment, summarised at para 59 of the judgment:
“It would be wrong to decide that the costs of solicitors’ attendance at rehabilitation case management meetings are always irrecoverable. Equally, it would be wrong for the claimant’s solicitor to assume that routine attendance at such meetings will always be recoverable. It will always depend on the facts.”
The Court made it clear that they shared the Master’s views on the likely unreasonable nature of the costs and that the sums sought were open to challenge on detailed assessment.
Contact: Lewis Thompson
Secondary victim claims and clinical negligence
Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent); Polmear and another (Appellants) v Royal Cornwall Hospitals NHS Trust (Respondent); Purchase (Appellant) v Ahmed (Respondent) [11.01.2024]
On 11 January the Supreme Court handed down its judgment in this conjoined appeal concerning whether a defendant can be held liable for psychiatric injury suffered by a close relative of a primary victim of clinical negligence. The appeals were dismissed by a majority of six to one.
The Court differentiated more general accident claims from those arising following the impact of a wrong diagnosis or treatment, looking specifically at the duty of care and responsibilities owed by a medical practitioner to their patient. They found this duty does not extend to protecting their close family from the impact that negligent care or treatment could have. The Supreme Court found (at paragraph 138 of the judgment) “to impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role”.
Contacts: Laura Ringrose and Amanda Mead
Related item: Supreme Court ruling: secondary victim claims and clinical negligence
Welcome guidance on use of a personal injury trust for an infant claimant expected to have capacity as an adult
GWS and others v St Thomas Becket Catholic Primary School [22.12.2023]
This Judgment has provided helpful and welcome guidance on the use of a bare trust for an infant claimant who is expected to have capacity as an adult.
Master Brown considered there were essentially two options: 1. Creation of a bare trust, as requested by the claimant (the bare trust) and 2. Payment into Court Funds, in particular the Special Account (the CFO option). In response to the claimant’s arguments in favour of the bare trust, Master Brown considered the advantages and disadvantages of both in his Judgment.
Master Brown concluded that "any benefits associated with the trust option (which are difficult to discern) are substantially outweighed by the costs”. He concluded that payment into the Special Account was in the best interests of the claimant. The Application to set up a bare trust was accordingly rejected.
The merits of such Applications will need to be taken on a case by case basis but, it appears there will be limited circumstances where such a trust can be justified for a future capacitous claimant in light of the points highlighted in this Judgment.
Contact: Samantha Williams
Related item: Guidance on use of a personal injury trust for an infant claimant who is expected to have capacity as an adult
Permission granted to appeal to the Supreme Court on issue of entitlement for a child to claim damages for ‘lost years’
The claimant in the matter of CCC (by her Mother and Litigation Friend MMM) v Sheffield Teaching Hospitals NHS Foundation Trust [13.07.2023] has been granted permission to a leapfrog appeal to the Supreme Court on the issue of entitlement for a child with a shortened life expectancy to claim damages for ‘lost years’ (in respect of future loss of earnings and pension).
Contact: Christopher Malla
Related item: Beating the odds: High Court clarification on lump sum and PPO Part 36 offers
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United Kingdom