Poor drafting results in 62 hours for Letter of Claim being SLASHED

Here we look at the judgment in the matter of HD v Northern Devon Healthcare NHS Trust [2023] EWHC 2118 (SCCO) which delves into the detailed scrutiny that each item claimed in a Bill of Costs can undergo in the Detailed Assessment process. The judgment raised the issue as to what material needed to be included in the Letter of Claim and the Schedules.

The matter sees a very unimpressed Cost Judge Jennifer James, who was assessing costs in six specific vaginal mesh cases being handled by now defunct firm Fortitude Law, look at the time spent, and amount claimed for the Letters of Claim and Schedule of Loss.

In the circumstances, six women (HD, HL, CB, CM, CD and CT) underwent vaginal mesh implants in the treatment of stress urinary incontinence. Complications arose from the surgery, leaving the Claimants suffering from chronic pain, issues with mobility and sexual function. It was the Claimants submission that they were not properly informed and consented prior to treatment.

The litigation was subject to a Claims Handling Agreement and thus was required to contain certain information. However, Judge James considered that the work in preparing the Letter of Claim and the Schedule of Loss was excessive and disproportionate, especially considering the ‘striking similarities’ between the claims, and where their values were wildly over-inflated, leading to substantial reductions on time.

“… notwithstanding the individual journeys of each of the Claimants, as they have all suffered due to the same kind of treatment it makes sense to have drafted up a precedent for those sections of the Letter of Claim that were always going to be the same or at least very similar in content. The issue is simply that, having done so, the amounts of time spent on drafting individual Letters of Claim which are both excessively lengthy and largely precedent-led, are neither reasonable nor proportionate.”

 

The Paying Party likened the Letters of Claim to a longwinded Skeleton Argument, and Counsel for Fortitude Law likened them to a Pleading, arguing that, under the Claims Handling Agreement, they had to be exceptionally detailed so as to put the parties in a position to settle at a Mediation before proceedings were even issued.

Judge James identified some ‘striking similarities’ across all six claims, with sections of identical material and common ground across disclosure requests and references to general and special damages. Judge James further commented that the letters of claim took up 14 pages of medical records including copying and pasting of handwritten medical notices, which included elements that were not relevant. It was deemed to be neither necessary nor required.

This is not a mere question of stylistic preference,’ said Judge James. ‘I have never seen professionally-drafted Letters of Claim like the ones produced by Fortitude Law; they are both unusually long and are in an unusual format.

Judge James, when discussing the Schedules went on to say: ‘I do not find the Schedules to have been drafted systematically or with the care and attention to be expected of a boutique Clinical Negligence firm specialising in vaginal mesh claims, frankly the six I have seen are all over the place.’

On assessment, the length and utility of the Letters of Claim were closely considered, and Cost Judge James cut the drafting time substantially, stating “I am in no doubt that both the 62.3 hours claimed and the 50 hours offered to draft the Letter of Claim, are unreasonable and disproportionate and candidly I cannot see that letter having taken anything like the time claimed, to draw. Given a well-ordered and tabbed set of medical records and a set of precedent sections (which there clearly were) to drop into the letter, I think that the Defendant’s offer of 15 hours is a reasonable one and I would allow Grade A x 3 hours, Grade B x 3 hours and Grade D x 9 hours on the Letter of Claim.”

You can find the full case here.

If you require any more information, please contact Samanatha-Jayne Wilson here.

 

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