QOCS and the exceptions to it: Where are we now?

QOCS (CPR 44.13-44.17) protects Claimants from costs orders in new PI claims, and was part of the trade-off for the non-recoverability of additional liabilities following LAPSO.

I deal below with the arguments which are beginning to be seen arising from the exceptions to the rule.

 (1) QOCS

44.13 provides that the section (Section II of part 44) applies to proceedings which include a claim for damages for personal injuries (or fatal accident claims). It includes in the definition of claimant a person bringing a counterclaim.

The main provision is:

4.14—

(1)

Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.

The effect of this is clear – the Defendant can only have its costs up to the total damages awarded to the Claimant. Thus, if the Claimant has lost at trial, and recovered no damages, then the Defendant cannot recover any costs.

Part 36 still applies, and so a Claimant who recovers damages but fails to beat a Defendant’s offer could see his damages lost to pay the Defendant’s costs from the date of the expiry of the offer.

(2) Exceptions

There are exceptions to QOCS which allow costs orders made against a Claimant to be enforced to the full extent of such orders (so even a losing Claimant would be liable for the full costs order):

Under 44.15:

Without the permission of the court where the claim has been struck out on the grounds that—

(a)the claimant has disclosed no reasonable grounds for bringing the proceedings;

(b)the proceedings are an abuse of the court’s process; or

(c)the conduct of—

(i)the claimant; or

(ii)a person acting on the claimant’s behalf and with the claimant’s knowledge of such conduct,

is likely to obstruct the just disposal of the proceedings.

Under 44.16 (1):

With the court’s permission, where the claim is found on the balance of probabilities to be fundamentally dishonest.

Under 44.16(2):

With the court’s permission, and to the extent that it considers just, where:

(a)    The proceedings include a claim for the benefit of another person other than a dependant under the FAA 1976 [the order may be made against the person for whose benefit the claim was made: 46.16(3)];

(b)   A claim is made for the benefit of a claimant other than a claim to which this section applies.

(3) Exceptions: analysis & arguments

The strike out exceptions

The important point to note here is that, where an application to strike out a claim or counterclaim is successful, it is important that the order records the reason for the strike out so that the costs order may be properly enforced.

Note also that a strike out for failure to comply with rules or court orders does not necessarily entitle the Defendant to its costs, unless the strike out also falls within 44.15(c).

Fundamental Dishonesty

Judge Maloney QC, in Cambridge County Court, considered the meaning of the term and its application in Gosling v (1) Hailo (2) Screwfix Direct (available on Lawtel).

The Claimant had been subject to video surveillance which demonstrated that he had greatly exaggerated his symptoms (by showing him walking unaided and shopping, when he later that day claimed to the expert that he walked with a crutch and could not do the shopping). The Claimant settled and discontinued, resulting in a costs order against him.

The issue was whether that costs order could be enforced, and how the court should determine the issue of whether the claimant had been fundamentally dishonest.

The Judge found that the dishonesty must go to the root of the whole or a substantial part of the claim, not some minor or collateral matter.

He also found that there was no need to hold a hearing and take oral evidence from the Claimant on the issue, as that would be disproportionate and, given the overwhelming nature of the video evidence, the issue could be dealt with summarily.

Therefore he considered the extent of the claim for personal injuries and noted that around half the general damages claimed – and all of the future care – related to the knee injury. He therefore found that the Claimant’s dishonesty was fundamental, and allowed the order to be enforced to its full extent.

Claim for a person other than C

This is an exception which is more likely to arise in run-of-the-mill RTA litigation. Practice direction 44 states at paragraph 12.2: Examples of claims made for the financial benefit of a person other than the claimant … are subrogated claims and claims for credit hire.

Clearly very many personal injury RTA claims include a claim for credit hire; the practice direction is clear that that is a claim for the benefit of a person other than C, immediately defeating any argument that the hire was for the claimant’s benefit and/or that the liability the claimant’s.

That suggests that a large number of ordinary PI matters would fall within this ‘exception’ to QOCS, simply because they include a claim for credit hire.

Importantly, however, before the costs order may be enforced there are two stages of discretion to be exercised. 44.16(2) says the order may only be enforced: (i) with the court’s permission and (ii) to the extent it considers just.

(i)                  Exercising the discretion

Rule 44.16 sets out exceptions to QOCS.  The purpose of QOCS is to protect claimants in claims which ‘include’ a claim for personal injury. The rules envisage application to claims will include other matters (including credit hire).

It seems therefore that it would contrary to the principle of QOCS for the exception to apply simply because there is a claim for credit hire. Something more exceptional would, in my view, be required before the exception should be applied.

The rule is more properly applied to claims which include PI only to gain the benefits of QOCS, or those where the only dispute left at trial was the quantum for credit hire.

It seems to me that an ordinary RTA trial with a legitimate PI claim and credit hire should not fall outside of QOCS.

(ii)                Extent of order and paying party

Furthermore even if the court decided to exercise that discretion, it should only do so to the extent that it considers just. That may be £nil, if any more would not be just. ‘Just’ in this rule must again be considered in light of the public policy background to QOCS.

The court also has the power to make the order against the person (credit hire company?) for whose benefit the claim was brought. The Practice Direction suggests that this should normally be the case (para 12.5):

·               the court will usually order any person other than the claimant for whose financial benefit such a claim was made to pay all the costs of the proceedings or the costs attributable to the issues to which rule 44.16(2)(a) applies, or may exceptionally make such an order permitting the enforcement of such an order for costs against the claimant;

·  (b) the court may, as it thinks fair and just, determine the costs attributable to claims for the financial benefit of persons other than the claimant.

It is not clear whether the reference to ‘usually’ means that the discretion should usually be exercised, or that, where it is, the order should be made against the ‘other person’.

However this may be a useful starting point for the argument on behalf of the Defendant: QOCS is intended to protect Claimants, not credit hire companies, and so where a matter is lost at trial or on an issue of quantum for credit hire, the hire company should not be afforded the same protection as the Claimant.

In my experience, however, such applications by Defendants have not (yet) been successful. That my change in a case where the only issue at trial was credit hire.

Claim other than one to which the section applies

The first part of the section applies QOCS to claims which include a claim for personal injury. The vast majority of such claims will include a claim for something else (even if only miscellaneous expenses).

Given that, to fall within the section, a claim must only include PI, it is difficult to see why there is an exception for claims that include something else. There should be nothing unusual about the inclusion of the ’something else’.

There is no assistance in the Practice Direction. The only logical application of the rule is where, again, there is a claim for ‘something else’ which includes a PI claim only to gain the protection of QOCS. Given the wide drafting of the scope/application rule, it would have to be quite obvious that that was the intention before such an order should be considered.

SARAH – The ‘hero’ bill to save the zombie parliament?

Background

One of the measures announced in the queen’s speech was the Social Action, Responsibility and Heroism bill, from Chris Grayling’s Ministry of Justice (though conceived before his appointment as Lord Chancellor).

In a piece on Conservative Home (http://www.conservativehome.com/platform/2014/06/chris-grayling-mp-our-bill-to-curb-the-elf-and-safety-culture.html) , Grayling described it as ‘our bill to end Elf and Safety culture’. Any bill which is trumpeted with a limp joke stolen straight from Richard Littlejohn is a worrying sight, and one which needs to be considered carefully.

The Intention of the Bill

As Grayling sees it, the ‘elf and safety’ culture ‘holds back much of our society’. Clearly he has not read the section on the HSE website dedicated to consistently and regularly debunking the majority of the ‘elf and safety culture’ myths which appear in the press.

Clearly he has also not read much tort case law either, as he also gives the following examples (with comment):

“take the responsible employer  who puts in place proper training for staff, who has sensible safety procedures, and tries to do the right thing”

That sounds almost like a layman’s explanation of the standard of care in employer’s liability, no? Apparently not…

“And then someone injures themselves doing something stupid or something that no reasonable person would ever have expected to be a risk. Common sense says that the law should not simply penalise the employer for what has gone wrong”.

It is not just common sense that says this; so would the law. ‘Reasonable care’ would not require protection against a risk that ‘no reasonable person’ would expect.

“or the member of our emergency services who feels that they can’t come to the rescue of someone in difficulty because of the fear they will end up in trouble for breaching health and safety rules.

This seems to be about health and safety regulation, not negligence; the health and safety culture is often not a result of the regulations but of their perception.

“or the person who holds back from sweeping the snow off the pavement outside their house because they are afraid someone will then slip on the ice and then sue them”

This idea has been around for a considerable time and is as far as I know is a myth, completely unsupported by authority.

If a duty were to be imposed in those circumstances, assuming there is no occupiers’ duty as this is the pavement outside the home, it would be under the Caparo principles and it would have to be ‘fair just and reasonable’ to impose a duty. Courts are unlikely to think that it is fair to do so. Further, clearance would not give rise to a duty to continue to clear the snow/ice in future. At most the duty which would arise would be a duty to take reasonable care in the first place.

Therefore the act of clearance would have to be done in a negligent way, which is rather more difficult to prove than the usual failure to clear by a local authority.

It was also reported by Private Eye that the government’s own DirectGov website advised, until recently, that there was no reason not to clear snow outside your home. That advice no longer appears, but is archived here: http://webarchive.nationalarchives.gov.uk/20121015000000/www.direct.gov.uk/en/Nl1/Newsroom/DG_191868?cid=rss

“of course courts do apply common sense, and very often throw out the most absurd cases. But that’s not before the individuals involved have been through incredible stresses and strains when they think they have just done the right thing”

So the law often gets it right, but it should get it right at an earlier stage. Right at the beginning of a case. It is always easy with hindsight to say that a case was bound to fail but how is any legislative framework supposed to fix that?

The answer according to Grayling is by providing a ‘signpost from parliament to the courts’. Before we consider the actual clauses in the Bill, we can already see that it cannot transplant the decision making process from the end to the beginning of litigation. In any event there are already procedures to deal with such ‘absurd’ cases: strike out and summary judgment.

The Bill

The bill applies to all claims for negligence or breach of statutory duty, when determining the standard of care (section 1).

The bill requires the courts to have regard to whether the alleged negligence or breach of statutory duty occurred:

-          When the person (defendant) was acting for the benefit of society (s.2);

-          Whilst the person was demonstrating a generally responsible approach towards protecting the safety or other interests of others (s.3);

-          When the person was acting heroically by intervening in an emergency situation to assist an individual in danger and without regard to the person’s own safety (s.3).

Effect of the bill

Firstly, a reminder that civil liability for breach of health and safety regulations was (largely) abolished by the Enterprise & Regulatory Reform Act 2013, bringing most workplace health and safety claims back under a broader ‘negligence’ test.

So in almost all circumstances (‘general’ common law negligence, occupiers’ liability, employers’ liability), the standard of care is ‘reasonable care’, or words to that effect. What is reasonable care is always dependant on the circumstances and so there is nothing to stop the court taking the matters above into account now.

Of course the bill requires them to be taken into account, but gives no further guidance on the effect they should have. That will be entirely up to the courts, and will lead to extensive litigation in the short term.

It remains to be seen what (if anything) the bill would in fact add to the law on negligence. It is unlikely to change the law significantly enough to prevent Grayling’s ‘heroes’ having to go through the process of litigation before succeeding.

The Compensation Act 2006

In any event the same result appears to have been achieved by the Compensation Act which states:

S 1 Deterrent effect of potential liability

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—

(a)prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b)discourage persons from undertaking functions in connection with a desirable activity.

Conclusion

This appears to be another example of parliament’s time being spent legislating against a problem which doesn't exist (see also the Saatchi Bill). Time and resources could be better spent on educating people about the myths of ‘elf and safety’ law, or perhaps preventing the collapse of the criminal bar. 

Denton, Decadent and Utilise: Restating Mitchell?

This post also appeared on the Kings Chambers Healthcare blog. 

Introduction

The background to the 4/7/2014 court of appeal decision (available here) needs no introduction to those engaged in civil litigation in recent months. Suffice it to say that the Mitchell decision has caused considerable confusion and contradiction as to the correct approach to applications under CPR 3.9.

What follows is a brief analysis of the judgment and where it leaves the issue of relief from sanctions.

Mitchell & the cases which follow

Interestingly and helpfully the Court of Appeal lists ([13] – [20]) those cases which are, in its view, the ‘most important’ cases decided since Mitchell:

Adlington http://www.bailii.org/ew/cases/EWHC/QB/2013/B29.html,

Durrant http://www.bailii.org/ew/cases/EWCA/Civ/2013/1624.html,

Newland Shipping http://www.bailii.org/ew/cases/EWHC/Comm/2014/210.html,

Lakatamia http://www.bailii.org/ew/cases/EWHC/Comm/2014/275.html,

Summit Navigation http://www.bailii.org/ew/cases/EWHC/Comm/2014/398.html,

Chartwell Estate Agents http://www.bailii.org/ew/cases/EWCA/Civ/2014/506.html.

Given that the court of appeal (in its view at least) is merely ‘restating’ the decision in Mitchell, those cases are still in theory relevant to applications for relief.

Having considered those the court said that “The guidance given at paragraphs 40 and 41 of Mitchell remains substantially sound. However in view of the way it has been interpreted, we propose to restate the approach that should be applied in a little more detail.” Whether what follows is really a restatement is a matter for debate.

The Three-Stage Guidance  

The court sets out (at [24]) a three stage process for the assessment of applications under CPR r3.9:

The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.

Further detail is given on the application of each stage of the test.

Stage 1

The judgment goes some way to assisting with the meaning of ‘triviality’ which caused considerable inconsistency in decision-making.

The court says (at [26]) that “it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant”.

It goes on to consider the test of ‘materiality’ proposed by the Bar Council and Law Society (who intervened in the appeal):

It was submitted on behalf of the Law Society and Bar Council that the test of triviality should be replaced by the test of immateriality and that an immaterial breach should be defined as one which “neither imperils future hearing dates nor otherwise disrupts the conduct of the litigation”. Provided that this is understood as including the effect on litigation generally (and not only on the litigation in which the application is made), there are many circumstances in which materiality in this sense will be the most useful measure of whether a breach has been serious or significant. But it leaves out of account those breaches which are incapable of affecting the efficient progress of the litigation, although they are serious…

We therefore prefer simply to say that, in evaluating a breach, judges should assess its seriousness and significance.

Therefore the new question is whether a breach is serious or significant. Whether a breach disrupts the conduct of litigation will in many cases (but not always) answer that question but there are breaches which do not so disrupt, but which could still be serious.

Finally, the court reiterated that where a breach is not ‘serious or significant’ (or trivial as was), then relief will usually be granted ([28]).

The Second Stage

The second stage is, simply, to consider what (if any) the reason for the breach is. Considering why the default occurred will be important at the third stage.

The Third Stage

The court quite accurately recognised that the main difficulty which has arisen has been the ‘paramount importance’ given to factors (a) and (b) in rule 3.9.

Importantly the court appeared to row back from this a little and said (at [32]) that those two factors

“may not be of paramount importance, [but] we reassert that they are of particular importance and should be given particular weight at the third stage when all the circumstances of the case are considered”.

In considering applications, the correct approach is that the court should ([35]):

…give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is a good reason for it. Where there is a good reason for a serious or significant breach, relief is likely to be granted. Where the breach is not serious or significant, relief is also likely to be granted.

The court noted the following which in the authors view is one of the most important passages in the judgment ([38], emphasis added):

…some judges are approaching applications for relief on the basis that, unless a default can be characterised as trivial or there is a good reason for it, they are bound to refuse relief. This is leading to decisions which are manifestly unjust and disproportionate. It is not the correct approach and is not mandated by what the court said in Mitchell: see in particular para 37. A more nuanced approach is required as we have explained. But the two factors stated in the rule must always be given particular weight. Anything less will inevitably lead to the court slipping back to the old culture of non-compliance which the Jackson reforms were designed to eliminate.

Non-Co-operation

Equally important as the three-stage test, the court went out of its way to criticise the ‘non-cooperation’ between lawyers since Mitchell. The most important passages are these:

[41] …it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage. In a case where (a) the failure can be seen to be neither serious nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise obvious that relief from sanctions is appropriate, parties should agree that relief from sanctions be granted without the need for further costs to be expended in satellite litigation. The parties should in any event be ready to agree limited but reasonable extensions of time up to 28 days as envisaged by the new rule 3.8(4).

[42] It should be very much the exceptional case where a contested application for relief from sanctions is necessary.

[43] The court will be more ready in the future to penalise opportunism. The duty of care owed by a legal representative to his client takes account of the fact that litigants are required to help the court to further the overriding objective […] It is as unacceptable for a party to try to take advantage of a minor inadvertent error, as it is for rules, orders and practice directions to be breached in the first place. Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions. An order to pay the costs of the application under rule 3.9 may not always be sufficient. The court can, in an appropriate case, also record in its order that the opposition to the relief application was unreasonable conduct to be taken into account under CPR rule 44.11 when costs are dealt with at the end of the case

That is as strong an indication as could be given by the Court of Appeal as to the behaviour which is expected of parties and the consequences of unreasonableness

Conclusions

The three stage guidance set out gives further assistance in the making of r3.9 applications. It should diminish the weight currently being given to factors (a) and (b), and give greater weight to the rest of r1.1.

There is, however, no return to pre-Mitchell days and there is no room for laxity.

Equally importantly, respondents (to applications under r3.9) will now have to think very carefully before opposing any application for relief or for an extension of time (including under the newly amended rule 3.8).

Problems

A number of issues remain following this decision.

The effect of rule 32.10

The Court of Appeal in Chartwell indicated that, any application to rely upon a late witness statement was in effect an application under rule 3.9: the sanction had ‘bitten’.

However no argument was in fact heard on that point and the indication (however strong, and even though from the Court of Appeal) is obiter.

In another case decided on the same day as Chartwell, Paul Dean Davies ), the High Court decided the exact opposite.  

This post is not the place for a full analysis of the issue, but it is one which remains unhappily unresolved, and on which there are now directly contradictory decisions from the courts.

Serious breaches not affecting hearing dates

Though the issue of ‘triviality’ is somewhat clearer following Denton, there will remain cases which do not imperil hearing dates or affect the conduct of litigation, but which, in the court’s view, are serious.

Assessing which of those breaches (like paying court fees on time) are serious may present some difficulty. The important points are (i) that the starting point should be the effect on the conduct of litigation generally, and (ii) that ‘seriousness’ is not the end of the matter, and though a failure may be sufficiently serious to pass through stage 1, it has to then be considered in ‘all of the circumstances’ at stage three.  

Return of the Saatchi BIll

Introduction

Enough has been said about whether the bill is required (it is to me wholly clear that it is not). However for now let us imagine that the bill is in fact necessary.I want to provide some comment on the effect the bill would have on the law. 

I avoided doing so previously because it had been indicated that the bill would be amended. The updated version of the bill has now been published (and is available at the back of the briefing note here.)

The aim of the bill is now very helpfully set out in the Briefing Note:

The Bill for Session 2014-15 is set out in Annex A: it is the shortest of all the versions

of the Bill so far, and it reduces the Bill to its essential message – innovate by

following a responsible process with the support of a responsible body of medical

opinion, and you can be confident that the law will support you; innovate in a

reckless manner without the support of your colleagues, and the law will not protect

you.

(The eagle-eyed reader will notice that this passage has a hidden message: “follow… a responsible process with the support of a responsible body of medical opinion… and the law will support you.” That is, to all intents and purposes, an explanation of the Bolam test. All that has been added is the phrase ‘innovate by…’ This is why many lawyers agree that the bill is unnecessary; the Bolam test already supports innovative treatment, provided that it is supported by a responsible body of opinion.)

The Aim of the Bill

I digress. To return to the ‘aim’ of the bill. It is (according to the briefing note) that the law will support innovation which is ‘responsible’ and which is carried out ‘with the support of a responsible body of medical opinion’, but not to protect innovation which is reckless and ‘not supported by colleagues’.  That is an entirely appropriate limitation on the type of treatment which the law should support (and is the present law).

The real question is whether the bill in fact does this.

The answer is short: it does not.

The Content of the Bill

Section 1(2) says that it is not negligent to depart from the existing range of accepted treatments if the decision is taken in accordance with a process which is accountable, transparent, and allows full consideration of all relevant matters.

Section 1(3) says what that process must include:

(a) consultation with appropriately qualified colleagues, including any

relevant multi-disciplinary team;

(b) notification in advance to the doctor’s responsible officer;

(c) consideration of any opinions or requests expressed by or on behalf

of the patient;

(d) obtaining any consents required by law; and

(e) consideration of all matters that appear to the doctor to be

reasonably necessary to be considered in order to reach a clinical

judgment, including assessment and comparison of the actual or

probable risks and consequences of different treatments.

Section 1(4) provides:

Nothing in this section  

(a)   Permits a doctor to administer any treatment for the purposes of research or for any purpose other than the best interest of the patient, or

(b)   Abolishes any rule of the common law in accordance with which a decision to innovate is not negligent if supported by a responsible body of medical opinion.

The Effect of the Bill: What is Negligent?

Section 1(2) provides that treatment caught by Section 1(3) will not be negligent. That is of course applicable to any treatment because there is no definition of innovation. It provides an circumstances in which treatment will not be negligent (i.e. additional to the Bolam test.) It therefore diminishes and weakens the Bolam test.

This may appear contradictory to the later section 4(b) which states that it retains the Bolam test. But what Section 4(b) in fact does is retain the Bolam test in respect of what is not negligent.

It is already the case that treatment is not negligent if supported by a responsible body of medical opinion (the Bolam test). By virtue of Section 1(2) treatment which might not fall within the Bolam test (and would therefore be negligent) could still avoid being negligent if it falls within Section 1(3).   

The Effect of the Bill: Section 4(a)

Section 4(a) rightly prevents research taking place, though in my view if a treatment is entirely unsupported by evidence and is properly to be considered ‘innovative’ then it is likely also to be what one might consider research.

It also prevents treatment for any purpose other than the patent’s best interests. This seems to provide some protection to patients, but in fact is likely to be interpreted as a subjective test (in line with the remainder of the bill).

The ‘purpose’ of a doctor’s treatment will almost always be the best interest of the patient: a doctor who has as his purpose the best interests of the patient can still provide negligent treatment.

Doctors who make mistakes act with the purpose of the patient’s best interests.

Those who believe in unverified alternative therapies believe that they are acting with the patients best interests.

For this section to provide any adequate protection the ‘best interests’ of the patient would have to be assessed on an objective basis, by expert evidence. That would effectively be a return to the Bolam test.   

The Effect of the Bill: Section 1(3)

All of those matters listed must be included in the process in order for it to be ‘caught’ by section 1(2).

But where, in that section, is the “support of a responsible body of medical opinion” required? It is not. The closest that section comes to requiring this is Section 1(3)(a), requiring ‘consultation with’ colleagues, including the MDT.

Does consultation require the gaining of support? No.

The Legal advice on the bill (from Parliamentary Counsel who drafted it, and available here), says that the ‘duty to consult sets a high threshold’, referencing a number of cases. Those cases are all public law cases on the duty of public bodies to consult. They are not authority on the meaning of the word in statute, and certainly not in the context of this Act.

A standard interpretation of consultation is a process of listening. In this context, listening to colleagues. Courts are unlikely to interpret that to include the gaining of explicit support. The argument will be that if parliament had intended to require the gaining of support it would have included that in the Act, rather than explicitly requiring only consultation.

So does the Bill provide that the law will not protect innovation which is ‘not supported by colleagues’? For the same reasons, no.

Conclusions

The reality is that, under the Bill, a doctor could comply with all of the procedural requirements in Section 1(2) and 1(3), consult with colleagues, ignore their views and press ahead, and s/he would not be negligent.

So the bill provides very limited protection to patients. The protections are inadequate because to provide appropriate safeguards would be to return to the Bolam test (as hidden in the ‘aims’ of the bill set out in the briefing note). That is itself an indication of why the bill is not required.

The Bolam test is the right test to provide the balance between protecting patients and promoting innovation. If there is a perception that doctors cannot innovate then more education is required. 

  

The [BL]OGden series: Part 1

The Ogden Tables are essential for practice in clinical negligence and personal injury and form an integral part of almost any schedule of loss.

However, understanding their purpose and how to use them can be difficult.

In this series I therefore intend to break down some of the fundamental principles underpinning the Ogden tables, to show how they work.

I will also provide worked examples of how to carry out some of the common (and less common) calculations.

This first post provides a brief overview of the purpose and basic operation of the tables, for annual future losses to death or retirement. 

________

What are they?

• The “Actuarial Tables with Explanatory Notes for Use in Personal Injury and Fatal Accident Cases”, produced by the Government’s Actuary’s Department, and last issued in 2007. Available here.

• They are admissible by virtue of Section 10 of the Civil Evidence Act 1995, to calculate “the sum to be awarded for future pecuniary loss”.

That is also a very straightforward explanation of the basic purpose of the tables. They do this by giving a ‘multiplier’ for use in the schedule of loss.

The loss in the schedule is the multiplicand. So: annual loss x multiplier (from Ogden table) = award.  

Why can’t the claimant just have their future loss?

Put simply, because there is a difference between ‘loss’ and the award required to meet that loss. If C were simply given the total sum in full, they would be over compensated. There are a number of reasons for this, set out below.

The multiplicand accounts (as best the statistics allow) for those factors and reduces the sum awarded accordingly.

1.       The period before the loss

If a loss is not incurred until some future event, there is a clear delay. Even if the loss begins immediately and continues not all of the loss is incurred immediately; only a portion each year. So for most of the loss, there is a period before it is incurred.

Therefore, C can invest a lump sum award and earn interest on it, drawing from it as necessary. It follows that, in order to have a sum available to him to pay an expense at some point in future, it is not necessary for him to receive all of that sum now.

For example, if a claimant who will suffer a £50,000 loss every year for 20 years was awarded £100,000 now, and he invested it, he could well have significantly more than that sum over the period of the loss.

2.       The period of loss

The claimant might not in fact incur the whole (or any) of the loss. Firstly, and most simply, the claimant will eventually die and so the life expectancy must be taken into account.

In the case of lost income to retirement, there are other risks (such as redundancy, periods of unemployment, etc) accounted for with the help of Tables A-D. These are risks that the claimant could have encountered in any event and so must be taken into account when we are awarding a sum for future loss of earnings.

The Basic Calculations

As I have noted, the point of the Ogden tables is to provide you with a multiplier (or multipliers) for C’s future losses.

The means of calculating different multipliers can be quite complicated. However, the most common uses of the tables are really quite straightforward.

I have found that a proper understanding of the basic method, and the reasoning for it, assists greatly in working out what to do on the more complex calculations.

Rate of Return

The rate of return is just the assumed rate of interest that C will be able to earn on the award – it is currently fixed at 2.5% (which is entirely unrealistic but that is what we are stuck with).

   

             Basic Calculation 1: Loss for Life

The tables are Tables 1 (males) and 2 (females).

Our claimant is a 32 year old female. She requires care for life. I will assume for now that the annual figure is fixed and will not increase. (NB this applies only to continuing loss. Lump sum losses, suffered at a fixed point, will be dealt with later, as will varying losses)

So, table 2 (females) is where we start. C is 32, so we look down the left column to age 32. The rate of return is fixed at 2.5% so that is the column.

Where that line and column meet is our multiplier: 30.15.

Why?

The 30.15 figure takes into account the interest C will earn on the capital sum (as the sum reduces each year when it is used). The sum also takes into account the Claimant’s likely life expectancy.  

By way of demonstration, the 0% rate of return column assumes no interest will be earned above inflation, and so takes account only of life expectancy. The figure there is 57.86, suggesting a life expectancy for our client of around 89.

              Basic Calculation 2: Loss to retirement age

The appropriate tables are 3-14. The table depends on the retirement age, because that is the end point of the loss (whereas there is only one table for each gender for lifetime losses, as there is only one end point).

The first thing we need to know is our client’s retirement age. That is often confused with State Pension Age. The two are not the same so the Claimant’s expected retirement date should be confirmed.

Let’s assume C‘s retirement age is 65: We turn to table 10 (females, retirement age 65).

The column is 2.5% (as above). Row 32 produces a multiplier of 22.22. However – that only takes account of the mortality risk.

Risks other than mortality

We must also account for other risks relevant to loss of earnings which may befall the Claimant before retirement. To do this we reduce the multiplier by a factor, obtained from Tables A-D.

These tables are based on statistics, so we need to know a little more about our claimant before we know what the assumed risks are for her. We need to know:

-whether she is employed or unemployed (at the time of the accident). She was employed.

-Whether she is disabled or not (with detailed definition in the Ogden Tables). She is not.

-The level of her educational attainment. (in three broad categories). Degree (Category D)

Table C is for non-disabled females. The claimant is in the 30-34 bracket, and employed, so the appropriate discount factor is the first figure, 0.89. (N.B. the retirement age in the table is 65 and the notes indicate that any difference between this and the Claimant's own retirement age should be ignored.) 

So, our multiplier from table 10 (above) was 22.22, only considering mortality. That is multiplied by 0.89, and is accordingly reduced to take account of the additional risks to retirement age.

22.22 x 0.89 = 19.76

So if the claimant's annual earnings were £25,000 per annum (net) the lump sum award is:

£25,000 x 19.76 = £494,000

              Loss of pension

The same principles apply to loss of pension calculations. The tables (15-26) provide multipliers for annual losses to pensions, from various retirement ages, taking into account the likely life expectancy (and therefore period of loss) from the date of retirement. The extent of the annual loss is the multiplicand. 

Bailey and Cumulative Causes Considered Again: Aspinall

*****
Update: 
Bailey v MOD has been considered again (albeit obiter) in two cases:

In Coakley v Rosie, (at 101-120) where HHJ Oliver-Jones QC found that, had he been unable to find for the Claimant on primary causation, he would have found for the Claimant on the basis of a material contribution, following Bailey.  

Coakley referred to another recent case in which Bailey was considered (but not relied upon by the judge): Pringle v Nestor (on Lawtel: [2014] EWHC 1308 (QB))
*****


The High Court has considered the judgment in Bailey v MOD [2008] EWCA Civ 883 (Bailii) on cumulative causes in clinical negligence, in the case of Aspinall v Secretary of State for Health [2014] EWHC 1217 (not available on Bailii as yet).

The Background: Bonnington and Bailey

The well-known principle in Bonnington Castings v Wardlaw [1956] AC 613 is that where a number of ‘agents’ can be shown to have materially contributed to an indivisible injury, a Defendant will be liable if one of those agents is the result of his negligence. Of course, if an injury is divisible, the Defendant is liable to the extent to which it contributed.

The application of the rule in Clinical Negligence cases was considered by the Court of Appeal in Bailey. The question was whether, following Bonnington, a contribution which was more than de minimis was sufficient.

The answer to the question was yes - the ‘but for’ test is modified in some cases. The Court set out the position explicitly (with emphasis added) (at [46]):

[…] If the evidence demonstrates that 'but for' the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that 'but for' an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the 'but for' test is modified, and the claimant will succeed.

Interestingly in Clinical Negligence cases the issue is often not contribution directly to an ‘injury’ (like in Bonnington) but contribution to a condition or event. In Bailey the Claimant aspirated her vomit and thus suffered brain damage. The issue was why she had been so weak as to aspirate her vomit, and therefore the causation question was effectively ‘what contributed to her weakness?’ The court upheld the Judge’s decision that the negligence had made a material contribution.

Aspinall

In this case the claimant suffered an IVH shortly after birth. The remaining allegation at the end of trial was that the doctor had failed to detect and rectify a problem in the Claimant’s ventilation for a 45 minute period.

The allegation of negligence was dismissed, but the court went on to consider whether that period had contributed to the injury.

The court found on the basis of the expert evidence that the Claimant would have suffered the IVH regardless of the 45 minute period.

However, there was expert evidence that the 45-minute period would have contributed to the bleed the Claimant suffered. It would have “encouraged its onset” ([52]), and was “likely to have contributed to [it]” ([54]).

The Claimant therefore argued that Bailey could apply because the contribution of the 45 minute period was ‘more than negligible’.

Philips J dismissed this argument (at [58]): this was not a ‘cumulative cause’ case; the experts had been able to express a view and the court had found that the injury would have occurred in any event.

Analysis

This judgment affirms the position that the application of ‘Bonnington’ is only appropriate where medical science ‘cannot establish’ but for causation.

Put simply, Bailey will apply only if:

(i)                  the injury is indivisible, and

(ii)                medical science cannot establish whether or not the injury would have             occurred notwithstanding the negligence.

Such a conclusion is entirely logical – if it can be concluded that the whole of an injury would have occurred without the Defendant’s negligence, the Defendant should not be liable.

Claimants should be very cautious of attempting to rely on the Bailey decision, unless it really cannot be said to what extent the various causes contributed to the injury / condition.

"responsible" Innovation and responsible reporting

The Department of Health consultation on what has been referred to as the "Saatchi Bill" is about to close. 

The Medical Innovation Bill (to give it its proper title) has been considered on a number of other blogs (particularly here) but I have decided to set out (briefly) my views on the bill. 

The background to the bill and its intended purpose is set out here, where you can also respond to the consultation.

There are for me three main concerns: (the primary concern) whether the bill is necessary, the campaign which surrounds it, and the protection it provides.

Necessity
The Bill is necessary, it is claimed, because the current law on Medical Negligence prevents innovation, as "currently the law dictates that patients are only offered standard treatments."

As has been noted by other commentators, that is simply not a correct statement of the law. As all practitioners know, to be negligent, a doctor has to take a course of action which "no reasonable body of medical men, skilled in that particular art, would support. The House of Lords even went to far as to put it the other way (also in Bolam): 

Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view

There is in principle no negligence in using a new or innovative treatment, provided that support can be found for it among some reasonable body of professionals. 

Let us consider an example. A patient is terminally ill with an unusual and/or complex cancer. There is no known effective treatment for the condition, and without treatment the patient will die. The doctor proposes a logical, reasonable procedure which may or may not be successful, and for which there is perhaps limited evidence. There are a number of outcomes:

i) The treatment is effective and the patient's condition improves: no claim lies in negligence (there is no loss)

ii)The treatment has no effect and the patient dies: No claim lies in negligence (there is no loss; there was no better alternative treatment)

ii)The treatment has no effect and the Claimant suffers some negative effects/harm:

• A claim being brought in such circumstances is, in reality, unlikely. 
• If the side effects were known and communicated to the patient, who properly consented, there is no claim in negligence (the treatment was not negligent)
• If the side effects would not have been known or anticipated by a responsible                 body of professionals (i.e. because of limited evidence about the procedure), there is no claim in negligence. 

Much of the publicity around this bill has focused on the issue of new pharmaceuticals (particularly for cancer). The same applies to new drugs, but there is the more complex issue of licensing. That, however, is an issue for regulation, not for the law on clinical negligence.

Even the Medical Defence Union (always staunch in its defence of doctors) says that there is 'no evidence' to suggest that innovation is being stifled, and that "medical innovation should not leave them open to an increased threat of litigation". 

It is noteworthy that the campaign has not yet been able to point to a single example of a doctor being successfully sued for what would, under the bill, be 'responsible innovation'. 

The material on the issue on the "Saatchi Bill' website, and in articles, refers to the total damages paid out by the NHS, and to a "culture of defensive medicine". 

This, in my view, is the real issue. There is nothing in the current law on negligence which prevents the innovation which the bill's proponents (quite rightly) wish to see. What is preventing that innovation (if anything) is fear of litigation. The answer to that fear is re-education, not a wholesale change to the law on medical negligence. 

The Protections in the Bill
The wording of the Bill itself is (according to Lord Saatchi in the Google Hangout on 22 April 2014) going to be subject to some amendment following the consultation. I will therefore post again on this issue once the Bill has been redrafted. 

I will say briefly that, in its current form, the bill effectively removes all protection from medical negligence. 

The decision has to be based on: "the doctor’s opinion that there are plausible reasons why the proposed treatment might be effective".

The decision must consider the risks, likely success rates, and opinions of colleagues. 

There is no objective consideration of whether the treatment is reasonable or appropriate. Provided the Doctor complies with the steps and shows that he has considered the relevant factors, the treatment is not negligent. 


The Campaign
It is perhaps not surprising that a bill supported by one of the founders of Saatchi and Saatchi should come with a very effective social media campaign.  

However, I have concerns about the way in which it has been conducted (not, I should say, by the said Saatchi and Saatchi). Specifically:

• The way in which the current law is being expressed (which is simply incorrect);
• The articles in the Telegraph (which fail to raise any of the important questions about the bill) by Dominic Nutt who fails to disclose that he is the Director of Communications for the Saatchi Cancer Initiative (the Saatchi Bill campaign). 

This campaign for greater innovation in the treatment of rare conditions is quite commendable. However it is based on a fundamental error: The change required is in education and policy, not in the law of negligence.