Failure to make offer at JSM leads to indemnity costs
A defendant that failed to make an offer at a joint settlement meeting it called has been ordered to pay indemnity costs.
EAXB v University Hospitals of Leicester NHS Trust was decided earlier this year but has only just come to light now that the Court of Appeal has refused permission to appeal.
Satinder Hunjan QC and Anna Diamond of Kings Chambers, instructed by Affinity Law, acted for the claimant. According to a case note published by Kings, they established liability for the defendant’s failure to identify that the claimant was carrying a fetus with a high risk of Down’s Syndrome and ultimately having a child with Down’s Syndrome.
The claimant was awarded indemnity costs on three bases: the defendant took the inappropriate position of making no offers at the JSM; the defendant made a late application introducing further statistics; and the claimant made a part 36 offer of 80% of liability, which the claimant beat by establishing liability in full.
The note said the failure to make any offer at the JSM was the principal issue: “The JSM had in fact been instigated by the defendant (although that was not the basis for such a decision). Arguments advanced by the defendant, that in the light of the claimant’s position the parties were too far apart, were not considered to be sufficient to make no offer at all.
“Many clinical negligence practitioners will have experienced the situation where, at a JSM, the position has been taken of making no meaningful concessions at all; such JSMs are a waste of time, trouble and money.”
LAA apologies for CCMS outage
The Legal Aid Agency (LAA) has apologised to providers for problems with its Client and Cost Management System, which have been going on for a few days.
In a letter sent on 29 June, the LAA urged providers not to use the portal until it advised otherwise. “Meanwhile, we are taking a flexible approach to urgent or emergency work.”
This meant that, to progress urgent or emergency work, delegated functions should be used as usual. “There won’t be a penalty for late submission of the application if submitted after five working days. When using delegated functions, you should ensure the promissory declaration is completed.”
The LAA has the power to backdate applications and amendments, it continued. “Providers will need to advise in the merits report when submitting the application and explain why backdating is needed.”
Where delegated functions were not available, the LAA said it would consider allowing paper applications using its contingency process. To do this, providers should contact the customer services team. “Decisions will be made on a case-by-case basis.”
Two firms top Chambers’ costs rankings
Leeds-based Clarion and City firm Clyde & Co have been listed in band 1 of the costs lawyers section of Chambers Litigation Support 2020 guide, which was published last week.
In band 2 were Bolt Burdon Kemp, Civil and Commercial Costs Lawyers (CCCL), Kain Knight, Keoghs, Masters Legal Costs Services and Practico, while band 3 was made up of Burcher Jennings, Croft Solicitors, Harmans, MRN Solicitors and Partners in Costs.
The guide also listed six ‘ranked individuals’: Andrew McAulay of Clarion, Anil Virji of CCCL, Clyde’s Jonathan Shaw, Matthew Harman of Harman, Paul Seddon from Seddon Costs Law, and Sam Hayman of Bolt Burdon Kemp.