An application for wasted costs against a clinical negligence claimant’s solicitors has been rejected because their client had not kept them up-to-date about when surgery which ultimately delayed the trial would take place.
According to a Lawtel report of Wilkins v Barking, Havering and Redbridge University Hospitals NHS Trust, the trust applied for a wasted costs order against the claimant’s solicitors following the claimant’s application to vacate a trial date.
The claimant had had gall bladder surgery at the defendant’s hospital and judgment had been entered in her favour in a medical negligence claim in 2013. A quantum trial had been adjourned on several occasions due to a complicated recovery and uncertainty about her prognosis. The claimant had also suffered from depression as a result of her injuries, which had prevented her from engaging fully in the litigation process.
At a case management conference in October 2016, it was determined that prognosis could be assessed and directions were given for a trial window in February 2018. The defendant was not told at that time that the claimant had told her solicitors that she needed to have further surgery, which would happen within weeks if paid for privately. The solicitors had then lost contact with her and informed the defendant in February 2017 that she was not responding to emails.
They suggested that an application to fix a trial date should be vacated, but the defendant refused in the light of the history of delay and non-engagement. In March 2017, the claimant spoke to her solicitors and confirmed that surgery had not yet happened and remained recommended. The solicitors informed the defendant of that by email. A trial date was set and, in April 2017, the defendant made an interim payment so that the surgery could go ahead with private funding.
After the surgery in June 2017, it became clear that it would take a further nine months to assess prognosis. The trial was therefore adjourned and new directions were given. The defendant sought its wasted costs from October 2016 on the basis that the trial date had been fixed despite the solicitors knowing that the claimant was not responding to emails and that they knew the trial window could not be met.
The claimant’s solicitors submitted that they were initially informed that surgery was to happen within a matter of weeks and had not anticipated that many months would pass before it was carried out. They said the real problem had been the claimant’s failure to engage and that they had contacted the defendant as soon as they became aware of the true position.
According to Lawtel, the defendant had asked the court to deal with the matter on the basis of unreasonableness. It said Mr Justice Spencer found that, with hindsight, it would have been better if the claimant’s solicitors had alerted the defendant to the prospect of further surgery in October 2016, but even an experienced solicitor who had been told that surgery was scheduled to happen soon would not have necessarily foreseen that it would hold up progress towards the trial window.
The fact was that, as soon as the claimant’s solicitors became aware of the true position, they did inform the defendant. Even at that stage, it was not necessarily foreseen that the surgery would impede the trial’s progress and a stay was not contemplated. The highest that the matter could be put, the judge concluded, was that the claimant’s solicitors had been overly optimistic. Their behaviour had not been vexatious nor designed to harass the defendant and so had not been unreasonable in the required sense. The court only had jurisdiction to exercise its discretion in clear cases, so the application was refused.