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Clinical Negligence | ‘Law with Lunch’ Webinar Series | 11 May 2022

<!-- wp:paragraph --> <p>Our first May ‘Law with Lunch’ webinar series of bitesize, lunchtime talks returns with Parklane Plowden's award-winning Personal Injury team to bring you updates covering the legal issues of the moment.</p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","level":4} --> <h4 class="has-text-align-center" id="tuesday-22nd-march-2022-12-30-pm-zoom-webinar"><strong><strong>Wednesday, 11<sup>th</sup> May 2022, 12.30 pm, Zoom webinar</strong></strong></h4> <!-- /wp:heading --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">Barrister and clinical negligence specialist <a href="https://www.parklaneplowden.co.uk/our-barristers/jonathan-godfrey/" target="_blank" rel="noreferrer noopener">Jonathan Godfrey</a> will discuss the</p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","level":4} --> <h4 class="has-text-align-center" id="section-33-know-your-limitations"><strong><strong><strong>Recent Caselaw on Expert Evidence</strong></strong></strong></h4> <!-- /wp:heading --> <!-- wp:paragraph {"align":"left"} --> <p class="has-text-align-left">From the latest procedural tips, these sessions are ideal for busy practitioners who want to enjoy their lunch break while updating their legal knowledge.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>These events are free, and we expect them to be popular, please book early to avoid disappointment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For further enquiries or to register, please email <span style="text-decoration: underline;"><a href="mailto:events@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">events@parklaneplowden.co.uk</a></span></p> <!-- /wp:paragraph -->

Informed Consent Post Montgomery – &#8220;More than a signature on a form&#8221;

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/jonathan-godfrey/" target="_blank" rel="noreferrer noopener">Jonathan Godfrey</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Unbelievably, it is now almost seven years since the Supreme Court revolutionised the legal landscape in respect of informed consent with its seminal judgment in <em>Montgomery v Lanarkshire Health Board </em>[ 2015 ] UKSC 11.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The test of materiality was born.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;A doctor was now <em>“ under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments “. The test of materiality was described as </em>“ <em>whether in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should be aware that the particular patient would be likely to attach significance to it “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It has been said that the decision encapsulated patient choice replacing the previous archaic approach of medical paternalism.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Seven Year post - A Gentle Reminder</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In assessing materiality, the Supreme Court in <em>Montgomery </em>gave the following guidance :</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"i"} --> <ol type="i"><li>The assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors in addition to its magnitude : the nature of the risk , its effect on the patient’s life , the importance to the patient of the benefits sought by the treatment , the alternatives available , and the risks involved in the alternatives. It is bespoke like a Saville Row suit ; and</li><li>The doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands all the matters involved. The information provided is to be comprehensible and is not fulfilled by bombarding with technical information and/or copious brochures/literature</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Practicalities and Realities</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Duce v Worcestershire Acute Hospitals NHS Trust</em> [ 2018 ] EWCA Civ 1307, Hamblem LJ gave practical guidance from the Court of Appeal regarding the nature and extent of the duty that was involved in <em>Montgomery </em>informed consent. It is a twofold test and is succinctly set out by Hamblem LJ at paragraph 33 of the judgment as :</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"i"} --> <ol type="i"><li><em>“ what risks associated with an operation were or should have been known to the medical professional in question . This is a matter falling within the expertise of the medical professionals ; and</em></li><li><em>Whether the patient should have been told about such risks by reference to whether they were material. This is a matter for the Court to determine. The issue is not therefore the subject of the Bolam test and not something that can be determined by reference to expert evidence alone “.</em></li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Accordingly, on a case by case basis, the medical experts instructed are to deal with the risks that that should have been known or ought to have been known by the medical professional in question ( and in so doing this limb seemingly retains homage to Bolam ). In the Duce case, Hamblem LJ specified at Paragraph 42 of the judgment that whether gynaecologists were or should have been aware of the relevant risks at issue <em>“ is a matter for expert evidence”. </em>Thereafter, whether those risks should have been communicated to the patient by reference to whether they were material is a question for the court to determine.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The test is replicated at Paragraph 12 of the judgment of Yip J in the subsequent case of <em>Hazel Kennedy v Dr Jonathan Frankel</em> [ 2019 ] EWHC 106 ( QB ). This is a sorry case in that the Defendant doctor had provided his diagnosis and treatment gratuitously, but it did not absolve him from his duties in respect of informed consent.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Hamblem LJ repeated at Paragraph 35 of the Duce judgment , those factors relevant to determining materiality that were previously elucidated by the Supreme Court in Montgomery.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Alternative treatment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Determination of materiality brings with it a need to inform not only of the risk involved in the treatment but also “ <em>any reasonable or variant treatments “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Bailey v George Elliott Hospital</em> [ 2017 ] EWHC 3398 , HHJ Worster sitting as a Deputy High Court Judge, considered what test should be applied as to whether an alternative treatment was “ reasonable “.&nbsp; He set out the following guidance :</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"i"} --> <ol type="i"><li>What is a reasonable treatment option must depend upon the patient, their treatment and their prognosis. In essence, all the circumstances ;</li><li>An alternative treatment option must be within the knowledge of a reasonably competent clinician as at the relevant time, and in so doing, satisfy Bolam ;</li><li>The alternative treatment must be an accepted practice at the relevant time ; and</li><li>The alternative treatment must be an “ appropriate “ treatment and not just a “ possible “ one.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The case of <em>Mills v Oxford University Hospitals NHS Trust</em> [ 2019 ] EWHC 936 ( QB ) highlights the need to advise as to alternative treatments in addition to the risk involved in the treatment proposed. The surgeon concerned failed to advise that the procedure to be followed was “ new “ and that there was an alternative available.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the context of alternative treatment, the case of <em>Mukhtar Malik v St George’s University Hospitals NHS Foundation Trust </em>[ 2021 ] EWHC 1913 ( QB ) considered whether it was reasonable to not offer alternative treatment. In this matter, the clinician, a neurosurgeon offered further remedial spinal surgery and did not propose the alternatives of pain medication or nerve blocks. They had either not worked in the past, or would have had a very limited beneficial effect for a short duration of time. HHJ Blair QC approached the matter through the Bolam prism finding that <em>&nbsp;“ I consider that a responsible, competent, and respectable body of skilled spinal surgeons would have reasonably concluded that there were no reasonable alternative treatments available in the context of the parameters and discussion …. “</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Causation</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A failure to provide informed consent still brings with it the need to establish that the failure was causative. It is not a presumptive sequitur. This is best exemplified in the case of <em>Diamond v Royal Devon and Exeter NHS Foundation Trust</em> [ 2019 ] EWCA Civ 585. The Claimant had had an abdominal hernia repaired using surgical mesh, but was not advised of the alternative of a suture repair. At first instance, HHJ Freedman held that the Claimant had not been given the appropriate information required for informed consent but that had she been so informed she would have proceeded with the mesh repair which in fact took place. The Court of Appeal approved the trial judge’s approach adopted to the question of factual causation. The court re-iterated that the but for test applies to causation in informed consent cases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A recent exposition of the consideration given by a trial judge as to the facts to establish causation ( in which causation was established ) is usefully illustrated in the judgment of Stacey J in <em>Betty Plant ( by her son and Litigation Friend , Rodney Winchester ) v Mr Ahmed El-Amir and London Eye Hospital Limited</em> [ 2020 ] EWHC 2902 ( QB ).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Before leaving causation, it is worth noting that at first instance in the <em>Diamond </em>case, those acting for the claimant sought a free standing right to damages to compensate for the invasion of the right to personal autonomy/choice. It failed. HHJ Freedman determined that a <em>“ mere failure to warn of a risk , without more “ </em>&nbsp;does not give rise to a free standing claim in damages. That aspect was not pursued before the Court of Appeal. The grounding of any claim in this respect is unlikely to find a renaissance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Contemporaneous Evidence</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Contemporaneous evidence is often the deal breaker in informed cases. Such cases generally tend to turn on a dispute of facts in respect of what was said in the consenting process. Accordingly, the contemporaneous medical notes are a must review in the evidential framework of consent, particularly given that the Montgomery decision recognises that each case is bespoke in its considerations. An absence of contemporaneous evidence to establish that informed consent was obtained is “ fraught with risks “. In the case of <em>Malik v St George’s University Hospital NHS Foundation Trust</em> [ 2021 ] EWHC 1913 ( QB )<em>, </em>the clinician concerned did not keep handwritten notes or typed notes of the consent consultation. HHJ Blair QC commented that:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“ I was taken aback by his practice of simply dictating a letter to his patient’s GP after an outpatient clinic appointment to relay the details of his patient’s current symptoms, recording his clinical assessment , giving his opinion as to appropriate treatment ( s ) but omitting to state what advice has been given about the risks and benefits of the avenue ( s ) open to the patient. This is a practice which it seems to me is fraught with risks of being unable confidently to answer important questions many years later without having the benefit of a contemporaneous set of detailed notes “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A common and sensible approach often seen by clinicians nowadays following Montgomery, is to keep a detailed set of medical notes of the informed consent process, followed by a letter to the claimant and cc’d to the claimant’s GP setting out precisely what was discussed in the informed consent consultation, focusing on treatment options, risks and alternatives. Such an approach goes a long way evidentially to negate a finding of no valid consent having been obtained.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Montgomery Consequences</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A study conducted at Queen Mary University of London : <em>“ the effect of the Montgomery judgment on settled claims against the NHS due to failure to inform before giving consent to treatment “ </em>published in March, 2020 ( by DS Wald, JP Bestwick , P Kelly in the Quarterly Journal of Medicine , DOI : HCAA082 ), gives a fascinating insight into the practical effect of the Montgomery decision in so far as claims initiated as against the NHS concerning a failure to provide informed consent.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The research established that while the rate of increase of other clinical negligence claims has remained steady, cases relating to consent have risen four times as fast since the Montgomery decision in March, 2015, and where failure to inform was added as a contributory claim, the rise was nearly ten-fold.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;Data established that as between 2005 and 2019 the NHS settled 70,000 cases of which 2,300 were linked to a failure to inform ( either primary or secondary ) with a total value of nearly £400 million. Between 2011 and 2015 , costs for settling informed consent cases rose from £25 million to £28 million per annum. Thereafter, from 2015 ( post Montgomery ) to 2019 costs rose to £62 million per annum. The rise was purely due to the increase in the numbers of claims,as the cost per claim remained steady. The study found that lawyers’ fees accounted for about 40 per cent ( £155 million ) of costs paid by the NHS in settled claims due to a failure to inform.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Professor Wald remarked that <em>“ claims involving failure to inform are normally invisible in the overall numbers of negligence claims , but the rise we have identified is striking and shows no signs of stopping. The data support concerns that lawyers are adding consent-related claims to other allegations which on their own may not be successful in court. The Montgomery ruling now makes these cases much easier to win, and the NHS is paying the bill “.</em> Professor Wald’s study is symbolic evidence of the growth in informed cases being brought post Montgomery.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>From the medical perspective, some five and a half years post the Montgomery decision, the GMC issued new guidance to doctors entitled “ Decision Making and Consent “. It was dated 30<sup>th</sup> September, 2020, and came into practical effect on 9<sup>th</sup> November, 2020. It replaced the GMC guidance on consent last issued in 2008. The guidance focuses on “ <em>the importance of meaningful dialogue , personalised communication and potential benefits and harms , and how doctors can support patients to make decisions with them about treatment and care “. </em>At its core are <em>“ the </em>seven principles of decision making and consent “ , and Lawrentian in their wisdom . The seven principles find their genesis and meaning in the Montgomery judgment. At the heart of the new guidance is the concept of meaningful dialogue. The new guidance translates the Montgomery decision into practical guidance for medical professionals. A central tenet is the keeping of contemporaneous medical notes.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The present vista</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is clear as per the research by Professor Wald and his co-authors that the Montgomery decision has seen a rise in informed consent cases per se, or in tandem with substantive allegations of negligence. It has had a profound effect on informed consent not only from a legal but also a medical viewpoint. The decision from the perceived ivory tower of the Supreme Court has resonated throughout the day to day decisions on consent made in hospitals and GP surgeries nationwide.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The crux of what represents informed consent post Montgomery is probably best summed up by the guidance given by the <em>Royal College of Physicians and Surgeons of Glasgow</em>, and which states the following:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“ Despite how it can often feel in the middle of a busy clinic, or at the start of a full theatre list, consent is more than obtaining a signature on a piece of paper. It is process that is part of patient-centred care and begins with finding out what matters to the patient, identifying what options are reasonable – including the option of no treatment – and helping the patient decide which option suits them best.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>The decision the patient makes may not be the one you would have made but, if the patient has been kept at the centre of the process, it should be the right one for the individual patient at that time. When the moment comes to sign the consent form if a patient has been fully involved in the process and enabled to weigh up the different options and their benefits and risks – risks that must be transparently presented – then truly informed consent will have been given “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The precis is simple, post Montgomery consent is “ a <em>process not a signature on a form</em>“.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Jonathan Godfrey is a specialist clinical negligence barrister.</p> <!-- /wp:paragraph -->

Joint Expert discussions and the Joint Statement – Don’t get involved

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/jonathan-godfrey/" target="_blank" rel="noreferrer noopener">Jonathan Godfrey</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Patricia Andrews &amp; Ors v Kronospan Limited [ 2022 ] EWHC 479 ( QB )</em> , Senior Master Fontaine spelt out in no uncertain terms that instructing solicitors and the expert are not to discuss the content of the joint expert discussions and the joint statement. Each should be aware of the duties that they owed to the court.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>To enter into discussion risks exclusion of the expert evidence relied upon.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Facts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The matter concerned a group action by 159 residents alleging that the defendant was liable to them in nuisance due to dust, noise and odour emissions from its wood processing plant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Expert reports on dust analysis were exchanged in April, 2021 with a joint discussion as between the experts commencing the following month.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>After a period of several months ( no joint report having been finalised ) it came to the attention of the defendant’s solicitors that the claimant’s expert had been forwarding “ <em>work in progress “</em>copies of the joint statement to his instructing solicitors and that he had sent over the initial draft on an unsolicited basis.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The matters having come to light, the defendant made application contending that the only option to the court was to revoke the claimants’ permission to rely on their expert. It was advanced by the defendant that the expert was not truly independent but rather that he had acted as an advocate for the claimants.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The expert concerned had been acting in his capacity for a period of 3 years and had incurred fees of £225,000.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Over the period in question, the claimants’ solicitors had made 68 comments on the drafts that had been sent to them, most of which were typographical, or by way of query.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was also established that the expert and the claimants’ solicitors had entered into email and telephone discussions in which the content and progress of the joint statement was discussed as between them.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Hearing</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The claimants contended that the approach suggested by the defendant was potentially calamitous as it would involve significant delay in instructing another expert and result in further significant cost.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Senior Master Fontaine noted that while many comments made by the claimant solicitors were inconsequential <em>“ many others commented or made suggestions on issues of substance “.</em>The claimants’ solicitors had themselves accepted 16 comments on this premise. In sending over the first draft unsolicited , Senior Master Fontaine considered that such could only have been the case because the expert sought the solicitors views.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The claimants’ solicitors accepted that <em>“ it was wrong for a expert to solicit input from their instructing solicitors during the process of drawing up a joint statement, just as it is wrong for solicitors to provide that input “ </em>&nbsp;and furthermore that <em>“ there was serious transgression of the rules by the claimants “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Senior Master Fontaine observed that her primary concern having seen the communications passing between the respective parties, was that the expert’s approach <em>“ strongly suggests that he regards himself as an advocate for the claimants , rather than an independent expert whose primary obligation is to the court “. </em>The stance draws parallels with the dicta of Black LJ in <em>EXP v Dr Charles Simon Barker [ 2017 ] EWCA Civ 63</em> ( albeit a conflict of interest case ) in which he stated that <em>“ our adversarial system depends heavily on the independence of expert witnesses, on the primacy of their duty to the court over any other loyalty or obligation …. “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Notwithstanding that there would be difficulties in revoking the claimants’ permission to rely on the expert, Senior Master Fontaine considered that the transgressions undertaken by him and the claimants’ solicitors were such that the court had no confidence in his ability to act in accordance with his obligations as an expert witness. She further enforced the position by specifying that <em>“ the basis upon which the claimants received permission to rely on [ x ] as an expert witness , namely his duties under CPR 35.3, 35 PD paras 21 and 2.2, has been undermined “</em>. In so doing , it is also worth observing that the expert had breached those duties expected of an expert as set out by Creswell J in the quintessential case of &nbsp;<em>” Ikarian Reefer “ [ 1993 ] 2 Lloyd’s Rep 68.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Senior Master Fontaine succinctly remarked &nbsp;that it <em>“ it is important that the integrity of the expert discussion process is preserved so that the court ,and the public , can have confidence that the court’s decisions are made on the basis of objective evidence “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Albeit that the litigation process was well progressed, no trial date had been set by the court, and in the circumstances, the claimants were allowed to rely on a new expert. A distinctly cooler climate would have been felt had matters surfaced at trial, where no substitution would have been permitted.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Summary</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The ratio is clear. Leave well alone. &nbsp;The decision in <em>Andrews </em>highlights the importance of the objectivity and transparency involved in the joint statement discussions as between the experts. Until the joint statement has been signed off and distributed by the experts there should be no contact as between the expert and their instructing solicitors on the content of the report by way of conversation, email or otherwise.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The tenor of <em>Andrews </em>repeats that said by HHJ Davies some 4 years earlier in <em>BDW Trading Ltd v Integral Geotechnique ( Wales ) Ltd [ 2018 ] EWHC 1915 ( TCC )</em>, in which he stated that “ <em>the expert should not ask solicitors for their general comments or suggestions on the content of the draft statement “.</em> As a solicitor, if approached as to the content of a joint report, a polite no and a clarification of the duties owed to the court will suffice. As was said by Fraser J in <em>Imperial Chemical Industries Ltd v Merrit Merrall Technology Ltd [ 2018 ] EWHC 1577 at [ 237 ] :</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>&nbsp;“ the principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct them.If experts are unaware of these principles, they must have them explained to them by their instructing solicitors. This applies regardless of the amounts in stake and in any particular case, and is a foundation stone of expert evidence “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/jonathan-godfrey/" target="_blank" rel="noreferrer noopener">Jonathan Godfrey</a> is a specialist clinical negligence and personal injury barrister at Parklane Plowden.</p> <!-- /wp:paragraph -->

Looking into a crystal ball &#8211; Do I have the evidence to consider a Part 36 offer? The decision in <em>Equitix Eeef Biomass 2 Ltd v Fox &#038; Ors </em>[ 2021 ] EWHC 2781 (TCC ) would probably say yes!

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/jonathan-godfrey/" target="_blank" rel="noreferrer noopener">Jonathan Godfrey</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In any situation where a Part 36 offer has been made there are decisions to be made as to its appropriateness or otherwise. In the situation where an offer has been made, but the offeree feels that it does not have all the information to make a totally informed decision on its appropriateness, it can be a dilemma. The decision of Mr Justice Kerr in Equitix Eef Biomass 2 Ltd v Fox &amp; Ors [ 2021 ] EWHC 2781 ( TCC ) has further compounded the dilemma and reinforced the approach adopted by the court in such circumstances.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Equitix</em>, the case had proceeded to trial and the claimant had achieved judgment in the sum of £11 million.&nbsp;During the course of proceedings, the claimant had made a Part 36 offer of just shy of £5.5 million on 25<sup>th</sup> January, 2021. An enhanced rate of interest was applied to the damages awarded due to the Part 36 offer being beaten, from the date following the requisite acceptance of the Part 36 offer. The Defendants contended that they had not been able to make an assessment of the offer that had been made until such time as Equitix’s expert’s 2<sup>nd</sup> report was served on 22<sup>nd</sup> March, 2021. They proposed that enhanced interest should only apply from that date. &nbsp;Kerr J roundly rejected the argument. In addressing matters in his judgment, he said [ 25 ] :</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“ I reject the defendants’ contentions. As to the first part, parties frequently face the pressure of a Part 36 offer without all of the pieces of the jigsaw in place. Much of the purpose of Part 36 would be lost if it were otherwise ; the costs which the regime was intended to prevent being incurred, would have to be incurred before the normal consequences of the offer could flow</em>. <em>A well judged Part 36 offer is often based on inspired and educated guesswork , which the other party must also display when deciding whether to accept it</em> “.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Kerr J went on to continue at [ 26 ] that <em>“ part of the incentive to settle is “ upping the ante “ consideration that a recipient of the offer may pay dearly for not accepting it, if it is beaten at trial “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Should we be surprised by the approach adopted by Kerr J to the Part 36 offer ? In truth, no. Perhaps as to the comprehensive nature of the language used , particularly that part I have underlined, but in reality, the approach adopted by Kerr J is the approach that has been adopted by the courts throughout. The courts have not adopted a laissez-faire attitude to Part 36 consideration with a paucity of evidence available.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In Briggs v CEF Holdings Ltd [ 2017 ] EWCA 2363 ( Civ ) the Court of Appeal emphasised the position that where a Part 36 offer is made where an assessment of value is not properly achievable, the fact that it is a difficult equation to solve does not normally act as a reason for displacing the normal Part 36 basis for costs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Briggs </em>, the claimant who had been injured in 2010, issued proceedings. In September, 2012, the defendant made&nbsp; a Part 36 offer in the sum of £50,000. Having eventually completed obtaining expert reports and evaluation the claimant accepted the offer.&nbsp; The claimant sought an order that the defendant pay its costs up until October, 2014. They were successful at first instance, but the matter was taken by the defendant to appeal. The judge at first instance had ruled that the medical uncertainty until October, 2014 made it appropriate to make a different order to the norm. The Court of Appeal disagreed. Goss LJ remarked that <em>“ it is very important not to undermine the salutary purpose of Part 36 offers “. </em>He took into account that all cases are fact specific but highlighted that the general rule that emerges from Part 36 , is that if the offer is not accepted within the requisite time then the claimant bears the costs of the defendant until such time as the offer is accepted. The general rule can only be displaced if the offeree can show injustice “ <em>but it is up to the offeree to show injustice, not simply that it may have been difficult to form a view as to the outcome of litigation “. </em>&nbsp;Goss LJ considered that the more appropriate action for the claimant to have taken had it considered it did not have the necessary evidence at hand would have been to apply for a stay of the action at the time of the offer and that a stay might in many cases <em>“ justify [ ies ] displacing the usual rule “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The approach adopted by the courts can be further viewed in the decision of Mrs Justice Lambert in Campbell v the Ministry of Defence [ 2019 ] EWHC 2121 ( QB )<em>. </em>This was a personal injury case in which liability had been admitted. In January, 2018 the defendant made a Part 36 offer of £100,000, and extended for acceptance until 19<sup>th</sup> February, 2018. It was eventually accepted by the claimant on 22<sup>nd</sup> March, 2019, some 13 months after the time limit for acceptance had expired. The claimant sought an order that costs be awarded to him up until 19<sup>th</sup> February, 2018, with no order for costs thereafter, as to do otherwise would have been unjust. The claimant had contended that it was unjust for the normal costs order to be made as it was not in a position to properly quantify the case at the time that the offer was made. The claim included a claim for loss of earnings , the value of which depended upon the claimant’s acceptance or otherwise for an officer’s commission not known until October, 2018.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Lambert J went back to the basics set out in CPR 36.13 ( 4 ), at ( b ) , which provides that as in the instant case, a Part 36 offer relating to a whole claim if accepted after the expiry of the relevant period , the liability for costs must be determined by the court, unless the parties agreed. Costs not being agreed under CPR 36.13 ( 5 ), the court must <em>“ unless it considers it unjust to do so “ , </em>order that the offeree be awarded costs up to the date that the relevant period expired, but that the offeree thereafter should bear the offeror’s costs from the end of the relevant period until acceptance. In considering whether the normal rule would produce an unjust outcome, the court is required under CPR 36.13 ( 6 ) to take into account all the circumstances of the case, and including those matters set out in CPR 36.17 ( 5 ). Only if the court concludes that it is unjust will it go on to determine the alternative order under CPR 44.3.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Lambert J set out that in consideration of matters the court must guard against making any exception from the norm <em>“ on the grounds that the regime itself is harsh or unjust but must find something about the particular circumstances of the case which takes it outside the norm “.</em> Adopting the stance of Goss LJ in <em>Briggs ibid</em>, Lambert J reminded herself that the salutary purpose of Part 36 was to promote compromise and avoid the unnecessary expenditure of costs and court time. She continued that the burden was on the offeree to show injustice, and that <em>“ uncertainties of litigation do not render it unjust for normal costs order to operate “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In her judgment, Lambert J readily accepted that at the time that the Part 36 offer expired , the evidence concerning the claimant’s prospects of promotion were incomplete. She then went on to say :</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“ However, in personal injury claims as in other litigation, offers to settle are often made at an early stage when the evidence is incomplete ( either in liability or quantum or both ). In these circumstances, it is the job of the claimant’s advisors to weight up the merits of the Part 36 offer and give the claimant appropriate advice. I accept that the exercise involves judgment and experience, but here, the claimant had the benefit of specialist personal injury lawyers with a sub-specialisation in military claims. As such they were in as good a position as any advisor to evaluate the claimant’s career prospects and to give him advice on the offer “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Had the claimant’s advisors in considering the offer determined that the prospects were so uncertain as to make any evaluation wholly speculative, then the appropriate action considered by Lambert J would have been to apply for a stay of the action pending the determination of the Commission Board. In failing to do so, the claimant continued the litigation at his own costs risk. Lambert J found in the circumstances of the case she did not find that it would be unjust to make an order reflecting the normal consequences of a late acceptance of a Part 36 offer. The offer to settle <em>“ was not a tactical offer but represented a serious attempt to resolve the claim “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There have been decisions where the courts have considered that the “ <em>the other side of the factual line has been crossed “</em> so as to allow for a departure from the normal order, most notably in SG ( a Minor ) v Hewitt [ 2012 ] EWCA Civ 1053, and more recently, <em>Momonakaya v the Ministry of Defence</em> [ 2019 ] EWHC 480 ( QB ). Notwithstanding these cases, the <em>Equitix </em>case has restated in the strictest terms and the most evocative language the courts position in relation to the consideration of a Part 36 offer. Although all the pieces of the jigsaw may not be in place the expectation is that “ inspired and educated guesswork “ can enable an&nbsp; informed decision to be made. While there may be some cases where the courts will exercise their discretion to depart from the normal order, in order to convince such a departure the party concerned will need to demonstrate that it would be unjust to apply the normal court order as the circumstances take it outside the norm. Where after consideration there is a decision that there is a paucity of evidence to allow for a proper evaluation of a claim, the more considered approach would be to apply to the court for a stay of proceedings in order to enable the provision and consideration of the evidence required. To merely sit back and take a decision after the obtaining of the necessary evidence is a risky tactic. <em>Equitix </em>is the latest in a Part 36 jurisprudence of cases where it has been established that legal advisors can apply instinct to consideration of value notwithstanding the lacuna in the totality of the evidence.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author </strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>J<a href="https://www.parklaneplowden.co.uk/our-barristers/jonathan-godfrey/" target="_blank" rel="noreferrer noopener">onathan</a> is a specialist clinical negligence and personal injury barrister at Parklane Plowden.</p> <!-- /wp:paragraph -->