Smith v Havering Hospitals NHS Trust

The Claimant suffered personal injuries when her child Amber was delivered stillborn on 18 September 1997 at Harold Wood Hospital. She instructed her solicitors Gadsby Wicks and had her first meeting with them on 28 November 1997. Thereafter she applied for legal aid but her application was refused on financial grounds. Then the possibilities of CFA funding and ATE insurance were considered. She eventually signed a CFA with Gadsby Wicks on 19 June 2000 and her ATE insurance policy was received on 5 July 2000.

Gadsby Wicks then obtained her GP records and approached a consultant paediatric neurologist, a consultant psychiatrist and a consultant gynaecologist for reports. These were received by Gadsby Wicks on 20 October 2000, 13 December 2000 and 15 December 2000 respectively.

Meanwhile Gadsby Wicks issued proceedings against the Defendant in the Mayor’s & City of London County Court on 4 September 2000 claiming damages for personal injury caused by the negligence of the Defendant’s servants or agents during the course of the Claimant’s labour and delivery of a stillborn baby. The proceedings were accordingly issued only 14 days before the expiry of the limitation period.

On 19 December 2000 Gadsby Wicks sent a Letter of Claim to the Defendant which appears to comply with the Pre-Action Protocol for the Resolution of Clinical Disputes except that the proceedings had already been issued. Paragraph 3.21 of the Protocol provides that proceedings should not be issued until after three months from the Letter of Claim unless there is a limitation problem and/or the patient’s position needs to be protected by early issue.

In the Letter of Claim Gadsby Wicks stated:

The Claim Form, Particulars of Claim, Schedule of Special Damages, Notice of Funding and experts’ reports were served on the Defendant on 21 December 2000. A complete copy of the GP records was sent to the Defendant’s solicitors on 16 January 2001. By letter dated 26 February 2001 Gadsby Wicks wrote to the Defendant’s solicitors:

On 23 March 2001 Gadsby Wicks agreed to a further extension of time for service of the Defence to 3 April 2001.

On 28 March 2001 Gadsby Wicks agreed to a further extension of time for service of the Defence to 18 April 2001.

The Defendant then changed solicitors and their new solicitors wrote on 5 April 2001 to say:

Gadsby Wicks did not agree to this further extension of time and the Defendant applied to the court. On 17 April 2001 District Judge Samuels ordered that the Defendant file and serve a full and proper Defence by 2 May 2001 and in default the Claimant be at liberty to enter judgment for damages to be assessed.

On 2 May 2001 the Defence was served denying liability. The matter then proceeded and the case was listed for a two day hearing commencing on 7 August 2002.

In January 2002 the Defendant changed solicitors again and Kennedys (who are now the Defendant’s solicitors) informed Gadsby Wicks on 1 February 2002 that the Defendant would not be serving any expert evidence and would consent to judgment. Judgment was entered by consent on 14 February 2002 for damages to be assessed and costs to be assessed if not agreed.

On 12 July 2002, following a further payment into court by the Defendant, judgment was entered by Consent that the sum of £30,000 standing in court to the credit of this action be paid out to the Claimant’s solicitors and that the Defendant pay the Claimant’s reasonable costs of the action to be subject to detailed assessment if not agreed.

In this application the Defendant applies for an order that:

In her Witness Statement in support of the Defendant’s application Ms Bell of Kennedys says (among other things):

At the hearing of the Defendant’s application Mr Monaghan referred me to the Pre-Action Protocol for the Resolution of Clinical Disputes and particularly to paragraphs 1 to 4 (the Executive Summary), paragraphs 1.12 to 1.14 (Enforcement of the Protocol and Sanctions) and paragraph 3.14 to 3.22 (Letter of Claim).

He also referred me to CPR Part 44.3 and particularly to Part 44.3(5)(a). The court will have regard to the conduct of the parties in deciding what order (if any) to make about costs and the conduct of the parties includes conduct before, as well as during, the proceedings, and in particular the extent to which the parties followed any relevant pre-action protocol.

Mr Monaghan also referred me to CPR Part 44.3(6)(a)-(g) which sets out orders which the court may make about costs and CPR Part 44.14 which sets out the court’s powers in relation to misconduct.

He submitted that since the Claimant had had her first meeting with Gadsby Wicks on 28 November 1997, there had been ample time for them to send a letter of claim and that the Claimant was estopped from relying on the exemption given in paragraph 3.21 of the Protocol relating to limitation problems.

He said that the Defendant had been denied the opportunity of settling the claim before proceedings were issued with the result that they faced the possibility of having to pay a success fee of 100% whereas on the authority of recent Court of Appeal decisions the success fee recoverable if proceedings had not been issued would be far less. Further still, if the Letter of Claim had been sent before 1 April 2000 when the Access to Justice Act 1999 came into force, and if the claim had then been settled, no success fee would have been recoverable at all.

Miss Lambert on behalf of the Claimant, referred me to paragraph 3.15 of the Protocol which states:

She pointed out that having entered into the CFA on 19 June 2000 and having received the ATE insurance policy on 5 July, Gadsby Wicks had proceeded to obtain the Claimant’s GP records and to instruct experts. The experts’ reports had not all been received until 15 December 2000 and the letter of claim was sent to the Defendant on 19 December 2000. She submitted that this had not been an unreasonably long period within which to decide whether there was a valid claim which justified the Claimant’s solicitors in sending the letter of claim.

Miss Lambert referred to paragraph 3.21 of the Protocol which states:

She pointed out that the limitation period had very nearly expired when the proceedings were issued on 4 September 2000. In view of the fact that funding arrangements had not been concluded until 5 July 2000 the limitation period had been a serious problem.

She submitted that the court had to consider the Practice Direction: (Pre-Action Protocols) (1999). Paragraph 2.2 states:

She pointed out that paragraph 2.4 of the Practice Direction states:

Miss Lambert submitted that the Defendant’s time for serving a Defence had been extended substantially by agreement and finally by an order of the court. It was therefore difficult to see how the Defendant could realistically be said to have been disadvantaged by the fact that it did not have three months after the delivery of the Letter of Claim before proceedings were issued.

She pointed out that paragraph 3.4 of the Practice Direction states:

Miss Lambert submitted that since the Defendant continued to defend after service of the Defence, through the case management conference and for some 14 months after receipt of the Particulars of Claim it was ludicrous to suggest that the Defendant would have settled the claim prior to issue of proceedings if it had been given three months between the letter of claim and the issue of proceedings.

Mr Monaghan, in his submissions about the orders the court should make in relation to this application, referred to the decision of the Court of Appeal in Ricardo Biguzzi v Rank Leisure Plc [1999] 4 All ER 934. In his judgment Lord Woolf referred to paragraph 2.3 of the Practice Direction: (Pre-Action Protocols) [1999]. This sets out the orders which the court may make if, in the opinion of the court, non-compliance:

However, as mentioned in paragraph 26 above, paragraph 2.4 of the Practice Direction states:

I am satisfied that the extensions of time given to the Defendant to serve its defence gave ample time for the Defendant to decide whether to defend the claim. Indeed the Defendant was given more than the three months provided for in paragraph 3.21 of the Protocol.

I am also satisfied that on the basis of the history of this matter which has been outlined above, it is highly unlikely that even if the Defendant had been given the three months provided for in paragraph 3.21 of the Protocol, it would have settled the claim prior to the issue of proceedings. The fact that the Defendant did not admit liability until February 2002 is a very significant factor in persuading me to come to that view.

Accordingly in my judgment no sanction for the Claimant’s failure to observe paragraph 3.21 of the Protocol would be justified.

Although it is not (it seems to me) necessary for me to decide the point, I think I should add that in my judgment the Claimant was entitled to have her litigation funding arrangements in place before instructing experts and obtaining GP records. That had not been achieved until July 2000 and the relevant information required by paragraph 3.15 of the Protocol had not been received until December 2000. No letter of claim could have been sent until then and so the Claimant cannot in my judgment be held to have been in breach of the Protocol because there was a limitation problem as referred to in paragraph 3.21 of the Protocol.

This application must therefore be dismissed. I will hear submissions on the question of costs and on the question of appeals at a later directions hearing if the parties do not attend when this judgment is handed down.