HD v Northern Devon Healthcare NHS Trust

Costs incurred in preparing pre-action material must be reasonably and proportionately incurred. A detailed assessment may take account of repetitive precedent drafting, unnecessary copying of records, failures to adapt standard material, arithmetical errors and claims advanced on insufficiently tested assumptions.

Where several matters share substantial common features, reasonable economies of scale are expected. Time spent considering a response, preparing a reply and considering any further response should ordinarily be assessed as a connected exercise. Expert evidence must engage with the underlying records and the expert’s fee should reflect substantial precedent material and repeated instructions.

The judgment arose from preliminary issues in a detailed assessment of costs claimed by Fortitude Law in six clinical negligence matters involving vaginal mesh claims. The court focused principally on HD, while giving indications concerning the other five cases.

The issues concerned the reasonable and proportionate time allowed for Letters of Claim, related correspondence, Schedules of Loss, medical reports and hourly rates. The claims had settled before proceedings were issued and the pleaded losses substantially exceeded the settlement figures. The court also considered whether conduct under CPR 44.11 should be addressed, but left that issue for a later hearing.

1. Letters of Claim. The Letters of Claim were excessively long and contained substantial copied material, including medical records and repeated legal authorities. The Claims Handling Agreement did not require the level of detail used. A reasonable approach would have been to summarise the relevant medical history and allegations while supplying the records in an organised form. For HD, 15 hours was allowed: 3 hours at Grade A, 3 hours at Grade B and 9 hours at Grade D. Similar limits were indicated for the other cases.
2. Letters of Response. DR1, CR1 and DR2 had to be considered together. Separating consideration of the response from preparation of the reply would reflect an unreasonable system of work. For HD, 10 hours at Grade A was allowed, subject to using Grade B time where appropriate if Grade A time was less than 10 hours. Grade D time that did not materially advance the work was not allowed.
3. Schedules of Loss. The Schedules contained inconsistent claims, unsupported or abandoned heads of loss, wrong care rates, omissions and arithmetical errors. A reasonable system required a checklist based on what was recoverable, cross-referencing the medical and witness evidence and checking that obvious losses had not been omitted. For HD, 7.9 hours was allowed, comprising 1 hour at Grade A and the balance at Grade D.
4. Medical report. The report contained extensive common and precedent material and insufficiently engaged with the medical records, particularly on liability. Repeated instructions and use of precedent justified economies of scale. The fee for Dr Agur’s report in HD was allowed at £3,000 plus VAT.
5. Hourly rates. Applying the factors in CPR 44.4(3), including complexity, specialist knowledge, skill, effort, responsibility and the circumstances in which the work was undertaken, the court allowed rates of £285 for Grade A, £250 for Grade B, and £120 for Grade D, costs lawyers and costs draftsmen.
6. Conduct. The court had not decided any issue under CPR 44.11. It was premature to determine conduct until the preliminary issues in all six cases had been resolved.