HD v Northern Devon Healthcare NHS Trust [2023] EWHC 2118 (SCCO)

[2023] EWHC 2118 (SCCO)SCCO Ref: SC-2021-APP-006201SC-2022-BTP-001160(and in 5 linked matters)
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Venue Royal Courts of JusticeHearing Hearing Dates: 27 to 31 March and 17 April 2023
London, WC2A 2LL
Judgment 16 June 2023
Before
COSTS JUDGE JAMES
Between
HDClaimantNORTHERN DEVON HEALTHCARE NHS TRUSTDefendantHD ClaimantNORTHERN DEVON HEALTHCARE NHS TRUST DefendantTogether with 5 associated cases brought by Fortitude law on behalf of Claimants referred to as HL, CB, CM, CD and CTJUDGMENTS FROMPRELIMINARY ISSUES HEARING COMMENCING 27/03/23Mr Robin Dunne (Counsel) and Ms. Charlotte Wilk (Counsel) instructed by Fortitude Law for ClaimantsMs Margaret McDonald (Counsel) and Mr Ken Corness (Costs Lawyer) instructed by Acumension for DefendantsJudgment on Letters of Claim[1]Neither side addressed me on Conduct in the CPR 44.11 sense; I do not say that that door is closed, but until I hear submissions, I have not formed a view and simply put on record that it has yet to be aired let alone decided.[2]My decision focuses upon “HD” and I have not prejudged any of the other cases before me at this Hearing. However, of necessity I have considered all six Letters of Claim and it will be apparent that the wind is blowing in a particular direction. By way of indication it *may* be that other Letters of Claim would be decided in a similar way, absent any persuasive submissions from either party.[3]Speaking of submissions I have been greatly assisted by both Ms McDonald and Mr Dunne; they have both done a sterling job for their respective clients on this tricky point and I am grateful to them.[4]In respect of the Witness Statement of Mr Ashley of DACB concerning Letters of Claim from ‘Firm A’ and ‘Firm B’ being a small, boutique practice akin to Fortitude Law and a larger/nationwide firm (in fact his Statement exhibits Letters of Claim from Thompsons as well as Shoosmiths, both firms being major players in the PI sphere) I do not place any weight on that Statement for two reasons.[5]Firstly it is at best a ‘snapshot’ of a couple of firms, hand-picked by Mr Ashley to make a point. I mean nothing pejorative by that, it is the essence of drafting a Witness Statement that it should tend to make the case from the Witness’ perspective, but Mr Dunne quite rightly asserts that it does not prove anything much. Absent more detail (Mr Dunne refers to the full data set, which I cannot see the Defendant voluntarily releasing to Fortitude Law) I cannot say whether Mr Ashley has chosen two mid-range examples, two of the best examples or what. As ‘proof’ that Fortitude are out of step, his Witness Statement is in my opinion not helpful to the Court although for record I do accept it is truthful.[6]The second reason to give no weight to that particular Witness Statement is that I do not have to. As I stated in Court during the Hearing, I have worked in Costs for 30 years and have been sitting as a Judge for 20 years [including time as a Deputy]. In that time, I have seen thousands of letters before action, both as a Costs Draftsman [working for a Clin Neg specialist firm] and as an adjudicator. I bring that knowledge to bear in this Detailed Assessment as I indicated I would and as both parties accepted that I should.[7]Ms McDonald likened the Letters of Claim to a [prolix] Skeleton Argument, and Mr Dunne likened them to a Pleading, arguing that, under the CHA, 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.[8]Turning to the Claims Handling Agreement (‘CHA’) it required Fortitude Law to do certain things, enumerated at Clause 4.2.2[as exhibited to Mr Hanison’s Witness Statement]. The Letters of Claim had to:Date 2023-06-16
[9][61] This Preliminary Issue comes from the Precedent G at Point 11, items 20 to 22 – Documents, on pages 28/29 where the Defendant has isolated 20 separate attendances totalling 31.3 hours spent drafting the Schedule of Loss in “HD”. In her Skeleton Argument Ms McDonald gives the following times and details in respect of this Preliminary Issue (the final, ‘total’ row is my own). Claimant Time spent Preliminary Sched* Updated Sched** Dams (settled) % of claim “HD” 31.3h 367,948.00 597,424.06 47,500.00 7.95% “CH” 10.2h 267,249.00 543,878.84 45,000.00 8.27% “CM” 42.1h 546,587.20 719,362.38 40,000.00 5.56% “CT” 8.8h 313,757.60 313,757.60 40,000.00 12.75% “HL” 5.8h 292,553.08 757,990.87 30,000.00 3.95% “CB” 5.2h 267,904.00 367,505.25 25,000.00 6.80% Total: 2,055,998.88 3,299,919 227,500 6.89 [62] In her table, Ms McDonald stated that “CT” spent 8.8 hours ‘plus general reviews of evidence’, “HL” was said to be 5.8 hours ‘plus general reviews’ and “CB” was 5.2 hours ‘plus 24 hours mixed with Letter of Claim.’ That is unhelpful; I have already ruled upon Letter of Claim in “HD” and given an indication on the other Letters of Claim, including “CB”. If I now rule upon those 24 hours under this heading it could constitute double jeopardy. [63] Likewise, general reviews appear in the Points of Dispute as a separate heading: I think it best to rule upon a reasonable amount of time for the Schedule of Loss in “HD” and to avoid these ‘overlapping’ Points in giving an indication on the remaining Schedules. By all means, should it come to a line item assessment Ms McDonald can take me to the ‘general reviews’ and any ‘mixed’ items; if at that time the only explanation for them, has to do with the Schedules of Loss, then they will be liable to disallowance in the usual way. It is apparent that there are numerous examples of the same items of time spent/work done being challenged under different items, as was canvassed at the Hearing on 17 April 2023. Whilst I accept this may be a function of the way that time has been recorded, the parties are reminded to be vigilant against disallowing the same items more than once. In the said Hearing it was more expedient to look at time ALLOWED rather than time DISALLOWED for this very reason. [64] Ms McDonald’s submissions were short and to the point; the Schedules were pleaded at figures well in excess of the ultimate settlement value achieved; as such, far too long was spent in trying to plead completely unrealistic and over-pleaded Schedules. In “HL” a pleaded claim in excess of three quarters of a million pounds, settled at £30,000.00. Put as a fraction that claim was pleaded at over 25 times the amount achieved in settlement of the claim. The remaining claims were pleaded at approximately 18 times (“CM”) 15 times (“CB”) 12.5 times (“HD” and “CH”) and 8 times (“CT”) the amounts achieved in settlement. [65] In fact, given that the settlement figures would have included an (unspecified) element of General Damages for pain, suffering and loss of amenity, the percentages and proportions must, per Ms McDonald, be even lower, although she acknowledged that because of the terms of the settlements, it is not possible to say how much of (say) Ms “HD”’s £47,500.00 represents General Damages and how much represents Special Damages. [66] Mr Dunne asserted that the Schedules of Loss were time-consuming; various factors changed over time and in particular the discount rate changed during the currency of these cases. Other factors required adjustment, for example in “HD” the Claimant had thought that she would have to give up work, and had put forward a significant claim for future loss of earnings. Per Mr Dunne, only upon being able to secure less congenial, but well-enough paid employment (albeit in a different role) was the Claimant able to mitigate those future losses and abandon that element of her claim; this was, in his submission, a point in her favour. [67] Ms McDonald did not see it that way and commented several times to the effect that this Claimant was seeking a six-figure sum for future loss of earnings and only dropped it on the eve of the Mediation when records (I believe from Occupational Health) showed that she had not been working reduced hours and had not lost any wages despite that claim. Nor did she accept Mr Dunne’s submission that the low settlements reflected litigation risk: they were over-pleaded and should be assessed at their true values.[10][68] To be clear, I have dealt with the Schedules of Loss on their own merits. If the Defendant is still minded to raise Misconduct/CPR 44.11 at the next Hearing in May 2023, this may be one of the issues to which they intend to refer – that was certainly the impression that I got at the last Hearing, but this is not a Judgment upon Misconduct. The served Schedules have many common features, as follows (I have looked at the draft/unserved Schedules as well): Details (Schedule 1):
“HD” “CH” “CM” “CT” “HL” “CB”
Key info: bespoke, contains: Date of birth Date Special Damages started Date of Schedule 1* Claimant’s age Lifetime multiplier Multiplier to retirement age (67) -0.75% disc. rate 08.08.71 12.12.14 06.08.19 47 40.9 19.95 14.11.76 26.04.10 29.05.19 42 47.4 26.93 13.02.65 27.01.11 09.07.19 54 33.6 12.27 05.09.59 29.01.13 29.12.19 60 27.8 6.91 14.09.62 11.11.13 11.12.19 57 30.7 9.87 14.06.65 01.09.16 05.08.19 54 33.6 12.27 JC Guidelines Chapter 6 14th Ed. Section J Bladder indicates: (a) Involves double incontinence £161,520-£123,310 (b) Being complete loss of function and control £123,310 - £70,090 (c) Serious impairment of control with some pain and incontinence £70,090 - £56,100 Other rates appear Included Included Included Included Included Included Included Included Included Included Included Included Included Included Included Included Included Included JC Guidelines Chapter 6 14th Ed. Section A Psychiatric and Psychological Damage: (a) Severe £108,620 - £51,460 (b) Moderately Severe £48,080 - £16,720 No No No Included No No No No Included Included No Included Schedule 1* continued:
“HD” “CH” “CM” “CT” “HL” “CB” (c) Moderate £16,720 - £5,130 (d) Less Severe £5,130 - £1,350 Included Included Included No Included Included Included No Included No Included No Section Chronic Pain (b) Other Pain Disorders (i) Involves severe cases with significant ongoing symptoms, resulting in an adverse impact upon ability to work £55,240 - £36,950 No Included No No Included Included (ii) involves moderate cases where symptoms are ongoing and have an impact that is less marked than in severe cases £33,750 - £18,480 “CT”, “CB” refer to complex regional pain syndrome as well Included No No No Included No Included Included Included No No Included A. Past Losses to [date] “HD” “CH” “CM” “CT” “HL” “CB”
[1]Travel Expenses – C has incurred numerous of these as she could not walk or drive after the surgery and may have often used taxis. Still to be finalised. TBC TBC Circa 40 at £10 each so £400.00 but still TBC Circa 100 at £20 a time so £2,000.00 but still TBC Circa 20 at £12.50 a time so £250.00 but still TBC TBC[2]Medical Expenses – C has required regular medication and treatment following the surgery. Still to be finalised. £50/month since surgery x 57 months = £2,850.00 £10/week for incontinence pads x 57 mo = £2,470 but TBC TBC £10.40/month for pain meds x 4 years = £499.20 but TBC Still to be finalised; includes £25.20/wk for pads, for 342 weeks = £8,618.40 TBC No meds £40/month for pads x 7 months = £280.00 TBC TBC Schedule 1* continued:
“HD” “CH” “CM” “CT” “HL” “CB”
[3]Loss of Earnings No – no claim for past loss of earnings in Schedule 1 No C working private care provider on £12,360/yr but has been unable to work since the op 7.5 yrs ago – loss = £92,700.00 No Self-employed time off post-op 2 weeks at £538.46= £1,076.92 Has reduced hours by 50% so from £28k annual income £14k – over 5 yrs 6 mo = £76,999.96 £78,076.88 No Cost of Care*** – C has required regular care and assistance from her significant other(s) of [number] hours/ week since the surgery. Contends for £6.50/hour for gratuitous care (£10/h in “CT”). ***4 in “CM” 40 hours x 6 weeks x £6.50 = £1,560.00 Thereafter 14 hours x 52 weeks x 4yrs 7mo x £6.50 = £21,687.00 14 hours x 472 weeks x £6.50 = £42,952.00 21 hours x 440 weeks x £6.50 = £60,060.00 Due to epilepsy C already had care needs but increased by 28h/wk 28h x 52 x 6.92 yrs = £100,755.20 28h/week for 5.55 years: 28 x 52 x 5.55 yrs = £52,525.20 From then = 10h/week x 27.4 weeks = £1,781.00 £54,306.20 56h/week for 4 weeks post-op at £6.50/h + Ongoing 28h/week over 2.8 yrs @ £6.50/h = £29,411.20 Past Losses total (Sched 1*) TBC G’ter than £42,952.00 G’ter than £153,659.30 G’ter than £111,373.60 G’ter than £132,813.08 G’ter than £29,411.20 B. FUTURE LOSSES “HD” “CH” “CM” “CT” “HL” “CB” C/ her prognosis confirms she will continue to suffer current symptoms for life and will continue to incur the following losses: Yes Yes Yes Yes

Yes

[1]Travel & Medical Expenses – C will incur numerous travel expenses due to inability to walk or drive, and will frequently need to take taxis C also requires regular medication and may require further surgeries TBC Future private treatment TBC Pain relief £50/mo x 12 x 40.9 years = £24,540.00 TBC TBC Omitted TBC Future treatment TBC Omitted TBC Future treatment TBC Omitted TBC Future private treatment TBC Omitted TBC Future treatment TBC Omitted B. FUTURE LOSSES cont. “HD” “CH” “CM” “CT” “HL” “CB” Travel & Medical Expenses Incontinence pads £10/ week x 52 wks x 40.9 yrs = £21,268.00 Omitted Omitted Omitted

Omitted

[2]Cost of Care*** – C will continue to require care provided for at minimum of [amount] for life. Care will, for draft Schedule 1* only, be calculated at the conservative rate of [amount]/hour ***still part of 1 in “CM” 14 hours x 52 weeks x £6.50/hour x 40.9 (whole life multiplier) = £193,538.00 14 hours x 52 weeks x £6.50/hour x 47.4 (whole life multiplier) = £224,297.00 14 hours x 52 weeks x £10/hour x 33.6 (whole life multiplier) £244,608.00 14 hours x 52 weeks x £10/hour x 27.8 (whole life multiplier) £202,384.00 10 hours x 52 weeks x £10/hour x 30.7 (whole life multiplier) = £159,640.00 21 hours x 52 weeks x £6.50/hour x 33.6 (whole life multiplier) £238,492.80 Future loss of Earnings C will, as a result of her ongoing severe pain, be unable to return to work/at her current hours. She would have continued to age 67. Intends to reduce her hours at an annual pay cut of £5,265 x 19 years = £100,035.00 No 12 years at £12,360/yr = £148,320.00 No claim for future loss of earnings in Sched 1 No No TOTAL SPECIAL DAMAGES AND FUTURE LOSSES (Schedule 1*): At least £367,948.00 (of which loss of earnings = £100,035.00) At least £267,249.00 At least £546,587.20 (of which earnings = £241,020) At least £313,757.60 At least £292,553.08 (of which earnings = £78,076.88) At least £267,904.00 Changes in Sched 2**? “HD” “CH” “CM” “CT” “HL” “CB” Date of Schedule 2** C’s age at date of Sched 2** Lifetime multiplier Multiplier to retirement age (67) – 0.25% discount rate: 06.10.20 49 38.9 17.88 06.11.20 43 45.3 24.06 15.02.21 56 31.7 11 16.11.20 61 26.8 Not given 17.12.20 58 30.7 9.87 20.11.20 55 32.7 Not given A: PAST LOSSES:
“HD” “CH” “CM” “CT” “HL” “CB”
[1]Travel Expenses – C has incurred numerous of these as she could not walk or drive after the surgery and has often used taxis. Still to be finalised. 4 trips at 106 miles each at 69.07p/mile each way = £585.71 5 trips at 10 miles each at 69.07p/mile each way = £69.07 TOTAL (receipts?) £654.78 At least 40 trips of 6.8 miles each at 69.07p/mile each way plus £6 to park = TOTAL (no receipts) = £615.74 At least 10 trips of 4.9 miles each x 69.07p/mile each way = £67.69 At least 6 trips of 22.3 miles each at 69.07p/mile each way = £184.83 TOTAL(no receipts) = £252.52 At least 30 taxi trips at £12 each = TOTAL(no receipts) = £360.00 At least 10 trips of 14 miles each x 69.07p/mile each way = TOTAL (receipts?) £193.40 Multiple trips TBC but includes 5 trips at £13 (taxi) = £65 Attending for a translabial scan at 69.07p/mile 153 miles each way = £211.35 TOTAL(no receipts) = £276.35[2]Medical Expenses – C has required regular medication and treatment following the surgery. Still to be finalised. Plus, should “HD” be £2/week not £2/month? £2 per month on pain meds (OTC) x 5 yrs 9 months = £138.00 Miscalculated 9 weeks not 9 months added At least 100 prescriptions antibiotics & pain relief £9 each £900 4 /week pkt Paracetamol/ ten years £3 = £1,638.00 £10.59 prepaid scripts/ month x 120 months = £1,270.80 Omitted Paracetamol at £8/month x 84 months = £672.00 Omitted Omitted Omitted Omitted Omitted Omitted Translabial scan £240 Medical Expenses cont’d: £1.50/week incontinence pads times 303 weeks = £454.50 Receipts? £592.50 3 packs of incontinence pads/week /£6.75 times 548 weeks = £3,699.00 No receipts £6,237.00 3 packs of incontinence pads/week /£4.50 times 524 weeks = £2,358.00 No receipts £3,628.80 Extra pads at £8.70/wk for 205 weeks = £1,783.50 No receipts £2,143.50 30 pads/mo (receipted) at 42p = £151.20 192 pads/mo at 42p = £1,532.16 Some receipts £2,355.36 Omitted No receipts £240.00[3]Loss of Earnings Had to change hrs from Aug 19 loss 1yr 1mo at £5,265/yr £5,703.75 No £13,160/yr but unable to work for 8.5 years = £111,860.00 No Can only WFH at cut rate/fewer hrs; lost 44 mo @ £1,845.92 £81,420.48 No A: PAST LOSSES cont:
“HD” “CH” “CM” “CT” “HL” “CB”
Cost of Care*** – C has required regular care and assistance from her significant other(s). Now contends for £10.00/hr for gratuitous care (previously claimed £6.50/hr). ***4 in “CM” 40h/week post-op for 6 weeks at £10/h = £2,400.00 40h/week from TVT surgery to second TVT surgery on 17.02.11 and for 4 weeks thereafter @ £10/hour for 46 weeks = £18,400.00 28h/week post-op x 16 weeks x £10 = £4,480.00 Ongoing 14h/ week x 63 weeks x £10 = £8,820.00 28h/week post-op (2nd) x 4 weeks x £10 = £1,120.00 Omitted Has needed 7h/week from Nov 13 onwards 7h at £10/h x 52 wks x 7.1 years = £25,844.00 Cleaner @ £30/wk for 7.1 years = £11,076.00 Gardener @ £39/month for 7.1 years = £3,322.80 Window Cleaner @ £15/month for 7.1 years = £1,278.00 8 weeks at 21h x £10/h post-op = £1,680.00 Ongoing @ 10.5h/week x 52 weeks x 4.17 years = £22,222.20 Miscalc.? Cost of care at £10/h Thereafter has needed 14h/week to date £10/h x 14 hours x 52 weeks x 5.9 years = £41,860.00 Thereafter has needed 14h/week to date £10/h x 14 hours x 52 weeks x 9.5 years = £69,160.00 Thereafter has needed 14h/week to date £10/h x 14 hours x 439 weeks = £61,460.00 Omitted See above See above Total past losses Sched 2**: £51,211.03 £94,412.74 £191,621.32 £2,143.50 £125,481.04 £24,418.55 Compare to total (Sched 1*) TBC Greater than £42,952.00 G’ter than £153,659.30 G’ter than £111,373.60 Greater than £132,813.08 G’ter than £29,411.20 B. FUTURE LOSSES “HD” “CH” “CM” “CT” “HL” “CB” C’s prognosis confirms she will continue to suffer current symptoms for life and will continue to incur the following losses (NB numbering may differ) Yes Yes Yes Yes Yes Yes B. FUTURE LOSSES Cont’d “HD” “CH” “CM” “CT” “HL” “CB”[1]Travel & Medical Expenses – C will incur numerous travel expenses due to inability to walk or drive, and will frequently need to take taxis C also requires regular medication and may require further surgeries Travel not included in Schedule 2** Pain relief OTC £2/month x 38.9 years = £933.60 Travel not included in Schedule 2** Pain relief £3/week x 52 weeks x 45.3 years = £7,066.80 Travel not included in Sched 2** Pre-paid script at £10.59/mo x 12 mo/yr x 31.7 yrs = £4,028.44 Travel not included in Sched 2** Omitted Omitted Travel not included in Sched 2** £8/mo x 12 x 30.7 years = £2,947.20 Travel not included in Sched 2** Omitted Omitted In “CM” this is set out: Cost of care Future medical expenses Future Private treatment[4]Future Loss of Earnings I have set each case out to compare like with like. NB “HL” and “CB” claim Botox at £1,000 more than in the other cases? Incontinence pads £1.50/week x 52 weeks x 38.9 years = £3,034.20 Bladder injections 1st £2,100 then £1,950 over 38.9 years = £99,600.00 Omitted Omitted Incontinence pads £6.75/week x 52 weeks x 45.3 years = £15,900.30 Yearly follow up appts. @ £250 each = £11,325.00 Omitted Omitted Incontinence pads £4.50/ week x 52 weeks x 31.7 yrs = £7,417.80 Bladder injections 1st £2,100 then £1,950 x 31.7 yrs = £66,108.00 Omitted Omitted Incontinence pads £8.70/ week x 52 weeks x 26.8 yrs = £12,124.32 Bladder injections 1st £2,100 then £1,950 x 26.8 yrs = £80,490.00 UTI meds £804.00 UTI catheters £2,010.00 Incontinence pads £80.64/ month x 12 months x 30.7 years = £29,707.77 Bladder injections 1st £2,100 then £2,925 over 30.7 years = £91,897.50 Omitted Omitted Omitted Bladder injections 1st £2,100 then £2,925 x 32.7 yrs = £97,747.50 Omitted Omitted Medical expenses cont’d: Omitted Omitted Antimuscarinic treatment at £1,300/year x 38.9 years = £50,570.00 Likely to want removal surgery £20,000.00 Continence procedure £6,500.00 Ditto treatment at £1,300/year x 45.3 years = £58,890.00 Requires removal surgery £20,000.00 Physio at £424/year x 31.7 years = £13,440.80 Ditto treatment at £1,300/year x 31.7 yrs = £42,210.00 Omitted Omitted Ditto treatment at £1,300/yr x 26.8 years = £34,840.00 Omitted Future private treatment incl. Urethral Bulking = £22,000.00 Ditto treatment at £1,300/yr x 30.7 years = £39,910.00 Omitted Omitted Ditto treatment at £1,300/yr x 32.7 years = £42,510.00 Loss of Earnings Will continue reduced hrs at £5,265/yr loss x 17.88 years = £94,132.20 No Has had to cease working £13,160.00/ year x 11 yrs £144,760.00 No Ongoing loss at £1,845.92/ month x 12 x 9.87 years to retirement = £218,630.76 No Schedule 2** cont’d:
“HD” “CH” “CM” “CT” “HL” “CB”
[2]Cost of Care*** – C will continue to require care provided for at the minimum of the current level for life. Care calculated at the rate of £10.00/hour ***1 in “CM” £10/hour x 14 hours x 52 weeks x 38.9 years = £283,192.00 £10/hour x 14 hours x 52 weeks x 45.3 years = £329,784.00 £10/hour x 14 hours x 52 weeks x 31.7 years = £230,776.00 Omitted £10/hour x 7 hours x 52 weeks x 30.7 years = £159,640.00 Cleaner £30/wk for life £47,892.00 Gardener £39/mo /life £14,367.60 Windows £15/mo /life £5,526.00 £10/hour x 10.5 hours x 52 weeks x 32.7 years = £178,542.00 TOTAL SPECIAL DAMAGES AND FUTURE LOSSES (Schedule 2**): At least £582,679.03 (of which loss of earnings = £99,835.95) £543,878.84 £719,362.36 (of which earnings = £256,620) £132,411.82 £757,990.87 (of which loss of earnings =£300,051.24) £367,505.25 Compared to Schedule 1* At least £367,948.00 (of which loss of earnings = £100,035.00) At least £267,249.00 At least £546,587.20 (of which earnings = £241,020) At least £313,757.60 At least £292,553.08 (of which earnings = £78,076.88) At least £267,904.00 Changes in Schedule 3? “HD” “CH” “CM” “CT” “HL” “CB” Date of Schedule 3 C’s age at date of Schedule 3 Lifetime multiplier Multiplier to retirement age (67) – 0.25% discount rate: “HD” Sched 4 date C age Lifetime multiplier Multiplier to retirement 05.11.20 49 38.9 17.88 18.05.21 49 38 Not given 21.06.21 44 43.2 Not given 19.07.21 56 31.7 Not given (despite loss of earnings) 17.04.21 61 26.8 Not given Only two Schedules seen 04.06.21 56 30.8 Not given[1]Travel Expenses – C has incurred numerous of these as she could not walk or drive after the surgery and has often used taxis. Same as Schedule 1* £654.78 Ditto Same as Schedule 1* £615.74 Same as Schedule 1* £252.52 Same as Schedule 1* £360.00 Same as Schedule 1* £276.35 Schedule 3 continued:
“HD” “CH” “CM” “CT” “HL” “CB”
[2]Medical Expenses – C has required regular medication and treatment following the surgery. Prescriptions £2/month x 5 yrs 10 mo = £140.00 Omitted £1.50/week incontinence pads x 307 weeks = £460.50 Omitted Omitted Prescriptions £900.00 OTC painkillers £1,638.00 ADDITIONAL incontinence pads £4.50/ week x 582 weeks = £2,619.00 Omitted Prescriptions £10.59/mo for 125 months = £1,323.75 ADDITIONAL incontinence pads £1.50/ week x 546 weeks = £819.00 Omitted Omitted ADDITIONAL incontinence pads £8.70/week x 226 weeks £1,966.20 Omitted Omitted Omitted Translabial scan £240[3]Loss of Earnings: C had to change hours but then got better paid role; still lost £7,044.33 Not present No £13,160/yr x 9 years = £118,440 No No Cost of Care*** – C has required regular care and assistance from her significant other(s). C now contends for National Joint Council Payscales Basic rate discounted by 30% for gratuitous care. ***4 in “CM” In sched 3 Still claiming £10/hr Post-op 40hrs @ £10 x 6 weeks = £2,400.00 Ongoing 14h/ week x £10/h x 5 yrs 10 mo = £42,466.66 Hourly rates well below £10/hr prev. claimed; gone from 40h to 30h/week, post-op Hourly rates well below £10/hr previously claimed; Omitted Hourly rates well below £10/hr previously claimed; At the rate of £4.80 per hour (less than half the £10 previously claimed) So as to compare like with like, “HD” Sched 4 figures appear here: Care post-op (1st) 30 hours x 3 weeks x £4.80/hr + 30 hours x 3 weeks x £5.03 = £884.70 Care post-op (1st) 30 hours x 6 weeks x £4.80/hr = £864.00 Care post-op (1st) 28 hours x 14 weeks x £4.80/hr = £1,881.60 Omitted Only two Schedules seen The above £884.70 is a miscalculation as the rate goes from £4.80 to £4.83, not straight to £5.03 Hence gap? Care till next op 14 hours x 3 weeks x £4.80/hr = £201.60 Care till next op 14 hours x 66 weeks x £4.80/hr = £4,435.20 Omitted Schedule 3 continued:
“HD” “CH” “CM” “CT” “HL” “CB”
Cost of Care*** Care post-op (2nd) 30 hours x 6 weeks x £4.80/hr = £864.00 Care post-op (2nd) 30 hours x 6 weeks x £4.80/hr = £864.00 Omitted Care till next op 14 hours x 26 weeks x £4.80/hr = £1,747.20 Omitted Care post-op (3rd) 30 hours x 6 weeks x £4.80/hr = £864.00 Omitted Care ongoing 14hrs/week x 104 weeks x £4.80/hr = £6,998.80 Care ongoing 7 hrs/week x 27 weeks x £4.80/hr = £907.20 Omitted Rate increased to £4.83/hr from 1 April 2013 Care ongoing 14hrs/week x 91 weeks x £4.83/hr = £6,153.42 Care ongoing 7hrs/week x 39 weeks x £4.83/hr = £1,318.59 Miscalc. by 52 weeks Omitted Rate increased to £5.03/hr from 1 January 2015 Care ongoing 18hrs/week x 62 weeks x £5.03/hr = £5,613.48 Care ongoing 14hrs/week x 65 weeks x £5.03/hr = £4,577.30 Ditto 7hrs/week x 13 weeks x £5.03/hr = £457.73 Miscalc. by 52 weeks Omitted Only two Schedules seen Rate increased to £5.36/hr from 1 April 2016 Care ongoing 18hrs/week x 52 weeks x £5.36/hr = £5,016.96 Care ongoing 14hrs/week x 52 weeks x £5.36/hr = £3,902.08 Ditto 7hrs/week x 52 weeks x £5.36/hr = £1,951.04 Omitted Care post-op (1st) 30 hrs x 6 weeks x £5.36/hr = £964.80 Schedule 3 continued:
“HD” “CH” “CM” “CT” “HL” “CB”
Rate increased to £5.53/hr from 1 April 2017 Care ongoing 18hrs/week x 52 weeks x £5.53/hr = £5,176.08 Care ongoing 14hrs/wk x 52 weeks x £5.53/hr = £4,025.84 Ditto 7hrs/wk x 52 weeks x £5.53/hr = £2,012.92 Omitted Gap? Rate increased to £6.03/hr from 1 April 2018 Care ongoing 18hrs/week x 32 weeks x £6.03/hr = £3,473.28 Care post-op 30hrs/week x 6 weeks x £6.03/hr = £1,085.40 Care ongoing 14hrs/week x 52 weeks x £6.03/hr = £4,398.84 Care ongoing 7hrs/wk x 52 weeks x £6.03/hr = £2,194.92 Omitted Care 10.5 hrs/week x 44 weeks x £6.03/hr = £2,785.86 Care post-op (2nd) 30 hrs x 6 wks x £6.03/hr = £1,085.40 Care ongoing 18hrs/week x 13 weeks x £6.03/hr = £1,411.02 Care 10.5 hrs/week x 1 weeks x £6.03/hr = £63.32 Rate increased to £6.43/hr from 1 April 2019 Care ongoing 18hrs/week x 20 weeks x £6.43/hr = £2,314.80 Care ongoing 14hrs/week x 52 weeks x £6.43/hr = £2,880.64 Miscalculated £4,681.04 Care ongoing 14hrs/week x 52 weeks x £6.43/hr = £4,681.04 Care 7hrs/week x 52 weeks x £6.43/hr = £2,340.52 Omitted Care 10.5 hrs/week x 52 weeks x £6.43/hr = £3,510.78 Rate increased to £6.60/hr from 1 April 2021 Care ongoing 14hrs/week x 59 weeks x £6.60/hr = £5,451.60 Care 14hrs/week x 63 weeks x £6.60/hr = £5,821.20 Care 7hrs/wk x 72 wks x £6.60/hr = £3,326.40 Omitted Only two Schedules seen Care 10.5 hrs/week x 61 weeks x £6.60/hr = £4,227.30 Total cost of care in Sched 3: In Schedule 4 £44,866.66 £33,310.66 £45,080.32 £14,509.32 Omitted £12,637.46 Schedule 3 continued:
“HD” “CH” “CM” “CT” “HL” “CB”
Total past losses in Sched 3: Miscalculated – excludes travel plus no claim for meds or pads at all? £53,166.27 £33,310.66 £50,853.06 £142,272.87 £2,326.20 £13,153.81 Compare to total (Sched 2**) £51,211.03 £94,412.74 £191,621.32 £2,143.50 £24,418.55 Compare to total (Sched 1*) TBC Greater than £42,952.00 Greater than £153,659.30 Greater than £111,373.60 G’ter than £29,411.20 B. FUTURE LOSSES:
“HD” “CH” “CM” “CT” “HL” “CB”
C’s prognosis confirms she will continue to suffer current symptoms for life and will continue to incur the following losses: Yes Yes Yes Yes Only two Schedules seen Yes[1]Travel & Medical Expenses – C will incur numerous travel expenses due to inability to walk or drive, and will frequently need to take taxis Travel not included in Schedule 3 Travel not included in Schedule 3 Travel not included in Schedule 3 Travel not included in Schedule 3 Travel not included in Schedule 3 C also requires regular medication and may require further surgeries I have arranged the items to compare like with like. Incontinence pads £1.50/wk x 52 wks x 38.9 yrs Not present = £3,034.20 Extra Incontinence pads £4.50/week x 52 weeks x 2 years = £468.00 Extra Incontinence pads £1.50/wk x 52 weeks x 2 years = £156.00 Extra Incontinence pads £8.70/wk x 52 weeks x 2 years = £904.80 Omitted Hence a gap indicates that item has not been claimed in that particular Schedule Items in RED refer to “HD” Schedule 4; most of the items from Schedule 3 seem to be missing? Bladder Botox injections 50 injections at £1,950 plus initial jab at £2,100 = Not present £99,600.00 Not present Bladder Botox injections 56.6 injections at £1,950 plus initial jab at £2,100 = £112,470.00 Prescrip’n meds £9/mo x 12 mo x 43.2 yrs = £4,665.60 Bladder Botox 41.3 injections at £1,950 plus initial jab at £2,100 = £82,635.00 Prescrip’n charge £10.59 per month x 12 x 31.7 yrs = £4,028.44 Omitted Omitted Omitted Only two Schedules seen Bladder Botox 30.8 years at £2,925 plus initial jab at £2,100 = £82,971.00 Omitted B. FUTURE LOSSES cont:
“HD” “CH” “CM” “CT” “HL” “CB”
OTC Meds £2/mo x 12 x 38.9 yrs = £933.60 Not present OTC Meds £3/wk x 52 x 43.2 years = £6,739.20 Omitted Omitted Only two Schedules seen Omitted I had assumed the Botox rendered the anti-muscarinic treatment null but it’s been claimed in “HD” Sched 3? Anti -muscarinic treatment £1,300/yr x 38.9 yrs = £50,570.00 Not present Omitted Not present Omitted Omitted Likely to want removal surgery £20,000.00 Omitted Omitted Requires removal surgery £20,000.00 Omitted Continence procedure £1,950.00 Requires removal surgery £20,000.00 Omitted Omitted Omitted Medical Expenses Not present Not present Not present Urethral bulking injections x 3 £4,400.00 Lifelong physio for chronic pain 8 sessions/yr 43.2 years at £424/year = £18,316.80 Omitted Omitted Lifelong physio for chronic pain 8 sessions/yr x 31.7 yrs at £424/year = £13,440.80 Lifelong pain mgt £1,000 /yr £31,700.00 Omitted Lifelong physio for chronic pain 8 sessions/yr x 26.8 yrs at £424/year = £11,363.20 Omitted Only two Schedules seen Omitted

Omitted

[2]Cost of Care – C will continue to require care provided for at the minimum of the current level for life. Care calculated National Joint Council Payscales basic rate discounted by 30% for gratuitous care Again, in “HD” ‘before’ Sched 3 and ‘after’ Sched 4 figures appear here £10/hour x 14 hours x 52 weeks x 38.9 years = £283,192.00 £6.60/hour x 14 hours x 52 weeks x 38 years = £182,582.40 £6.60/hour x 14 hours x 52 weeks x 43.2 years = £207,567.36 £6.60/hour x 7 hours x 52 weeks x 31.7 years £76,156.08 Omitted £6.60/hour x 10.5 hours x 52 weeks x 30.8 years = £110,990.88 B. FUTURE LOSSES cont:
“HD” “CH” “CM” “CT” “HL” “CB”
[3]Loss of Earnings: C will need to cut hrs after lockdown £6,123/yr x 17.46 yrs = £106,927.99 Not present No £13,160 to early retirement at 60, 3.5 yrs = £46,060.00 No No TOTAL SPECIAL DAMAGES AND FUTURE LOSSES (Schedule 3): £597,424.06 At least (lost earnings = £113,972.32) £425,480.02 £416,449.19 (of which loss of earnings = £164,500.00 £36,544.20 £207,115.69 Compared to Schedule 2**: £582,679.03 (At least, loss of earnings = £99,835.95) £543,878.84 £719,362.36 (of which earnings = £256,620) £132,411.82 £367,505.25 Compared to Schedule 1* At least £367,948.00 (of which loss of earnings = £100,035.00) At least £267,249.00 At least £546,587.20 (of which learnings = £241,020) At least £313,757.60 At least £267,904.00 Schedule 4 (“HD”) At least £216,547.80 [69] Going into such granular detail on the Schedules has taken a while but will hopefully assist, not only on this exercise but going forward with line-item assessments and on any Misconduct arguments that there may be. This exercise has revealed some very striking discrepancies across the Schedules, some of which are explicable but many of which appear to have no logical explanation. [70] Examples of explicable discrepancies include only some Claimants seeking £20,000.00 for removal surgery; some had already undergone removal (per care claims post-op) so that makes sense. Another is Ms “CB” going for a translabial scan; nobody else in this cohort had one but that just suggests she was the only Claimant who tried that option. [71] Ms “HL” was the only Claimant to seek the cost of a cleaner, a gardener and a window cleaner as a care cost, but that might simply mean that she was the only one relying on outside help. These cases settled pre-issue, so the claims and evidence were not tested at Trial but I gather were ‘reality checked’ at the Mediations. Ms “HL” claimed in excess of £80,000.00 for domestic services (past and future) whilst her husband asserted (paragraph 9 of his Witness Statement of 7 December 2020) that during his four-day rest periods he did all the ‘day to day’ house cleaning and grocery shopping etc. [72] This statement was in the context of the hours of care Mr “HL” said that he was providing for Ms “HL” during the week. She would presumably have been reality checked at the Mediation on a claim for ‘care’ by an able-bodied man doing household chores in his own home, as well as on the assertion that she needed this level of paid domestic support when she continued working (albeit at a reduced rate per hour/fewer hours) as a self-employed Exercise Specialist/trainer. [73] None of this is intended as any criticism of Ms “HL”. Claimants often have no idea of what they may or may not claim (or expect) in the way of damages, but a boutique firm specialising in vaginal mesh claims might have been expected not to encourage Ms “HL” to believe she was likely to recover over three quarters of a million pounds (including General Damages for PSLA, see below) when in fact her claim settled for £30,000. [74] Examples of other, less explicable discrepancies are many and varied. Before leaving Ms “HL”, in Schedule 1 there is a claim for past loss of earnings but no claim for future loss of earnings; it then crops up in Schedule 2 (at £218,630.76) so must have been overlooked. That is a very striking omission from a boutique Clin Neg firm, Grade D fee earner or no; in fact, it appears Fortitude Law is claiming 2.5 hours Grade A, 7.6 hours Grade B and 21.2 hours Grade D time which makes such a (six-figure) omission all the more extraordinary. [75] There is no claim for past loss of earnings by Ms “HD” in Schedule 1 but she indicates she intends to reduce her hours in future; in Schedule 2 she claims she reduced her hours from 19 August 2019 (which would be less than two weeks after Schedule 1) and is currently losing £5,265.00 per year. In Schedule 2, dated 6 October 2020, she claims to have lost £5,703.75 and in Schedule 3 (5 November 2020) she claims to have lost £7,044.33 which is a significant increase in just one month. [76] To be clear, those are very clear assertions of actual loss already incurred and as such I do not think that Mr Dunne’s submissions (which I appreciate were made on instructions) to the effect that she thought she would have to reduce her hours but then secured better paid (but less congenial) work and did not have a loss after all, rescues the position. She was claiming £7,044.33 of past losses and from that springboard was claiming a further £106,927.99 of future losses when, as Ms McDonald submits and as appears to be the case, she did not have any such losses and abandoned those claims on the eve of the Mediation. [77] In fairness to Ms “HD” I do not understand why the abandonment of her claim for lost earnings in Schedule 4 was accompanied by the abandonment of almost everything else; she had claims for OTC pain relief and incontinence pads, future private treatment including bladder Botox and antimuscarinic treatment and past and future losses worth six figures in total, which are simply absent from Schedule 4; aside from travel expenses and cost of care, everything else has fallen away. Again, that appears to be simple oversight. [78] Looking at Mr “HD”’s Witness Statement, he refers to 14 hours per week of care but this includes cooking dinner, doing most of the housework and carrying shopping or pushing the trolley when Ms “HD” is shopping as she can no longer manage this by herself. I appreciate that Mr “HD” may have thought that he was doing this for his wife but the idea of an able-bodied man doing some household chores around his own home, sounding in damages for past or future ‘care’ is something that I would expect to have been ‘reality checked’ at mediation. [79] Post-op care requiring some medical skill, or helping one’s wife with personal care and toileting, might be tasks that the most devoted husband would not expect to do, but much of the ‘care’ in the various Witness Statements before me looks like what used to be classed as ‘natural love and affection’ for one’s partner a.k.a. doing one’s own share around the house. Such claims would have been open to challenge since well before these Schedules of Loss were drafted; a care expert (for example) would have separated the wheat from the chaff, and most of what I have seen, seems to be the latter. [80] When compared in table form other discrepancies between claims are very striking. Returning to Ms “CB”, her translabial scan is claimed but there are no pain meds in her Schedule, despite her Witness Statement saying that “I have been prescribed multiple pain medications and trialled multiple medications and treatments for the severe urinary incontinence symptoms…” (para 21, 24 November 2020). Her husband’s Witness Statement refers to having to bathe and toilet her (paras 15 and 16, 24 November 2020) which sounds more like ‘care’ of the sort that sounds in damages. However, despite claims in her Witness Statement that she uses between 7 and 10 incontinence pads per day and suffers recurrent UTI’s, 3 to 4 times per year, neither pads nor UTI meds are included in Ms “CB”’s future loss claims and it can only have been due to oversight. The sums claimed for pads etc. vary quite widely between Claimants which may just be down to regional variations or the quality/quantity per pack, but the lack of any future provision for Ms “CB”, who is so debilitated by incontinence, is striking. [81] Antimuscarinic treatment is claimed across the board in Schedule 2, at £1,300.00 per year, but by Schedule 3 it has been dropped from all but “HD”. I had assumed that this was because it was an either/or option with the bladder Botox injections and that the latter, more expensive, option had been left in, but in “HD” both options appear. Both are, of course, available on the NHS as well; Claimants are entitled to price up private treatments but ‘reality checking’ at Mediation may have factored into these claims for otherwise fairly non-invasive and free treatments. Certainly, either these two were mutually exclusive or they were not, so why are they in “HD” and only “HD” as at Schedule 3? It is over £50,000; should it have been left out of that Schedule or included in the other 5? [82] Looking at Ms “CT”, her Witness Statement is dated 16 November 2020 and in it she explains that she is forced to take 3 to 4 doses per day of Codeine which barely affects her severe pain; she also states that she is prone to frequent and painful UTIs requiring antibiotic treatment (para 28, 16 November 2011). Yet in Schedule 1, only incontinence pads are accounted for under medical expenses; this is not remedied in either Schedule 2 or Schedule 3 despite the ‘General Damages’ narrative referring to chronic and severe pain, chronic and painful UTIs requiring antibiotics and strong anti-depressant medication, none of which is in the Schedule. [83] Most worrying is a claim, in Ms “CT”’s Schedule 1, for 28 ‘extra’ hours per week of care, over the past 6.92 years (since her surgery) totalling £100,755.20, and ongoing at 14 ‘extra’ hours per week, £202,384.00. That is a claim for £303,139.20 which most people would regard as a life-changing sum, but by her Schedule 2 (dated the same date as her Witness Statement above) there is no claim for past nor future care, and nor do these appear in her Schedule 3 dated 17 April 2021. [84] In her Witness Statement, Ms “CT” details certain pre-existing conditions that mean she has had a carer supporting her with tasks such as cleaning, laundry, shopping, attending medical appointments with her and cooking, since long before the surgery complained of. Her late husband fulfilled the role until he passed away in 2011 and thereafter paid carers have come in. Although she speaks movingly (and with a ring of truth) about the considerable hardships she has encountered during her life, Ms “CT” does not attempt to suggest that she has needed any more than the paid care above referred-to. However, that begs the question, why did a claim for £303,139.20 go into Schedule 1, to begin with? [85] The impression given is that Fortitude Law has given every Claimant a baseline care claim of a multiple of 7 hours per week and only when personal circumstances (here, the absence of a significant other who could have undertaken such ‘care’) prevent such a claim getting off the ground, has it been abandoned. That is extremely troubling and the sheer amount of time spent/work done quantifying these ‘care’ claims is both significant and almost entirely worthless in terms of advancing the Claimants’ interests. [86] There are a lot of arithmetical errors, for example when the National Joint Council Payscales Basic rate (discounted by 30% for gratuitous care) was substituted, on “CM” the person drafting Schedule 3 misread the dates and calculated time spent from 1 April 2013 to 31 December 2014 at £4.83/hour, as 39 weeks (it should have been 91 weeks as in “CH”). Similarly, when the time spent from 1 January 2015 to 31 March 2016 at £5.03/hour was calculated in “CM” it was calculated at 13 weeks (it should have been 65 weeks). That is over £3,500.00 omitted from that Schedule by arithmetical error. [87] Similarly, the bladder Botox is generally stated to have been £2,100.00 for the first injection, and £1,950.00 every 9 months for ongoing injections. However, in “HL” and “CB” someone has, enterprisingly, worked out the ANNUAL cost, but they have got it wrong. If it costs £1,950 every 9 months, then the annual cost would be (£1,950.00 divided by 3) times 4, which is £2,600.00 not £2,950.00 – I appreciate that is £350.00 but across those two matters it was being claimed for 63.4 years, which is £22,190.00 for an arithmetical error. [88] One of the most striking problems with the first two Schedules is the hourly rates that they use to calculate past and future care costs. These are either £6.50 or £10.00 per hour (presumably £6.50 is a rough approximation of 2/3 of £10.00 per hour). However, by Schedule 3 the National Joint Council Payscales Basic rates have been used instead. That is an improvement, but it is unclear why those rates were not used before; the earlier rates are described as ‘conservative’ but they were quite simply wrong. Conclusion [89] It will be apparent from the foregoing that I am not impressed by these Schedules of Loss. A reasonable system of work would have been to draw up a checklist of potential claims based upon an understanding of what is and is not recoverable. That would have required an understanding of what counts as ‘care’ and an understanding of the difference between (e.g.) claiming for all incontinence pads used in Schedule 1 and only in later Schedules restricting the claim to the ‘extra’ pads allegedly attributable to the Defendant’s actions. It would have involved cross-referring to the Witness Statement and indeed to the narrative within the Schedules on General Damages, to ensure that obvious claims for ongoing incontinence pads and pain meds and UTI antibiotics were not simply overlooked. [90] Speaking of General Damages, I apologise if I have missed it but I have not found any reference to a Claimant who was rendered doubly incontinent (i.e. bowel as well as bladder) by this surgery. Why, then, do the Schedules include JC Guidelines Chapter 6, 14th Edition, Section (J) Bladder(a) involves double incontinence £161,520 - £123,310? The Claimants, on reading that, could have been lulled into a sense of entitlement to sums that were never going to be realised. [91] Fortitude Law’s website (according to Ms McDonald’s Skeleton at para 8) states, “Fortitude Law has already helped, and is currently helping, many UK women to secure compensation of £100,000 or more in respect of negligent Mesh Implantation Surgery – and our unique approach means that the individuals we act for receive compensation from the insurance which the private medical consultants, private hospitals and NHS Trusts are required to have in place.”It is not clear to me what ‘unique approach’ Fortitude Law is claiming, but as yet I have not seen a single claim that realised even half of £100,000 despite claims pitched well in excess of that sum and (in the case of “HL”) in excess of three quarters of a million pounds if one includes PSLA. [92] I do not find the Schedules to have been drafted systematically or with the care and attention to be expected of a boutique Clin Neg firm specialising in vaginal mesh claims, frankly the six I have seen are all over the place. It follows that I am in considerable doubt as to the times claimed for these Schedules; the times may well have been spent but based upon the above they were not reasonably spent. Much time was thrown away on calculations based on the wrong premises, plus arithmetical errors and other oversights as detailed above. [93] I allow in “HD” the amount offered by the Defendant, namely 7.9 hours; since Mr Hanison put his name to it, I would allow 1 hour at Grade A and the rest at Grade D. I have not formed a view, but by way of indication, a similar amount is apt to be allowed on the others unless less than 7.9 hours has been claimed; in that case I would allow the time as claimed subject to anxious scrutiny of any Letter of Claim/General Review time as above referred-to. Response to parties’ comments on draft Judgment on Schedules of Loss [94] Following circulation of the Judgment contained within paragraphs 61 to 93 above, the parties made certain written submissions, the gist of which appears below together with my rulings. I accept that the matters seen by me, were never tested at Trial, and therefore it is impossible to be certain as to what might have happened to the various heads of claim pleaded, however, I have done the best I can with what I have seen. [95] For the Claimant, it was stated that (as was submitted at the hearing) the Defendant’s own CHA unusually required a Schedule of Loss to be provided at the outset with the Letter of Claim, pre receipt of all medical evidence (as the Mediation took place 21 months after service of the Letter of Claim) and before all Financial Records including the DWP Records and Occupational Health Records had been allowed (under the terms of the CHA) to be obtained. Per the Defendant, on the other hand, this is not correct as the “HD” Letter of Claim was dated 07 October 2019 so is covered by the original CHA dated 30 September 2019. This provides at Paragraph [4.3] for service of a Schedule of Loss with expert evidence after the Letter of Claim/Letter of Response/Replies process has concluded. Whilst it is correct (per the Defendant) that an early draft of the CHA, proposed by Fortitude in May 2019, provided for the Schedule of Loss to accompany the Letter of Claim this requirement was omitted from the revised draft sent by the Defendant in June 2019 and was at that time replaced with the requirement in Paragraph 4.3 for service of the Schedule later [the same requirement which then appeared in the agreed Claims Handing Agreement dated 30 September 2019]. As to it being before all Financial Records including the DWP Records and Occupational Health Records had been allowed (under the terms of the CHA) to be obtained the Defendant asserts that the CHA did not prevent the Claimant from obtaining these Records, nor did it say when the Claimant should obtain these Records, either. [96] To be clear, I have looked at the CHA in “HD”, signed and dated 30 September 2019, and its terms are as the Defendant describes. The Claimant’s assertions that the Schedule of Loss had to accompany the Letter of Claim, and that they were not ‘allowed’ to obtain DWP or OH Records any sooner, is not borne out by the CHA within their own Bundle, see “HD” Docs [Mediation] Bundle pp 6 to 10. Future Loss of Earnings [97] Per the Claimant (“HD”), the Future Loss of Earnings (‘FLoE’) claim was put into the Schedules as, prior to receipt of the DWP records and Occupational Health Records on 18.02.21, the Solicitor had been informed by the Claimant that due to the injuries suffered as a result of the Mesh Surgery she was no longer able to work 37.5 hours a week and could only manage 30 hours a week. Once the Solicitor had obtained and considered in detail those DWP and OH records and upon detailed discussions with the Claimant it was their view that the FLoE claim was - on the balance of probabilities only – a claim that would fail at Trial as those records provide evidence that although the Claimant had mitigated the position by changing roles to a less physically demanding ‘desk based’ role, the Court would find that she had ‘chosen’ to work 30 hours and that on balance she could, with careful management of the pain issues – i.e. by resting in the evenings and at weekends (hence the continued care/assistance claim at 14 hours a week), have worked 37.5 hours a week. [98] However, in the Solicitor’s view, the DWP and OH records did not/do not confirm that Mrs “HD” could have worked 37.5 hours. The FLoE claim is reasonable – it is just that on the balance of probabilities it was the Solicitor’s advice to Mrs “HD” (and to which she agreed) that a Court would ultimately find that she could have worked 37.5 hours a week. The Schedule of Loss was always put on the basis of a FLoE claim of minus 7.5 hours per week for Mrs “HD”’s working life, however and through discussions with her for the purposes of the Mediation, it was agreed that on the balance of probabilities a court would find that she could have worked 37.5 hours a week. [99] For the Defendant, two queries were raised [a] Please clarify whether there are attendance notes to support the submissions made, and [b] If there are no attendance notes then on what evidence are these submissions made? [100] To be clear, I have not seen any attendance notes of conversations with Ms “HD” on this issue; correspondence in the Bundle around the time of settlement (May 2018) has been redacted although this appears to be multiple copies of a couple of items rather than dozens of separate redacted items, it still makes it difficult to follow. Given that the FLoE claim was abandoned before Mediation, the Employment and OH records are not (as far as I can see) in the Bundle; again, it does not help that a 2,000-odd page Mediation Bundle is not presented by reference to numbered pages. [101] It appears that the ‘Mediation’ correspondence starts on page 638 and that within that correspondence is a letter from the Defendant (email) dated 22 February which states that, “In respect of the OH records, we note that the OH department very clearly state that the Claimant is fully fit for her normal role. [letter refers to other health issues which led to the Claimant taking extended periods of absence]. Her other health issues appear far more significant in respect of number of and length of absences from work. It appears that the Claimant was offered a new role as a Band 5 in continuing healthcare assessments and wanted to take this (despite OH telling her she was fit for her current role). It is clear from these records that the Claimant did not require to change her job role due to her gynaecological issues (and sustain loss of earnings as a result) as claimed in your Schedule of Loss. Please confirm that you are dropping this claim, which amounts to £94,138.20 for future loss and £5,703.75 [sic] for past loss?” [102] There is also a letter (email) dated 19 February 2021 to the Claimant that refers to a telephone conversation that afternoon where the Claimant confirmed that, ‘…you have struggled working 37.5h/week and therefore would not continue doing so long term even if it were possible to continue working from home.” [103] I have also seen NHS payslips dated April, May, June and July 2019 showing standard hours 37.5 per week, net pay April £2,184.17, May £1,903.56, June £2,080.98 and July £1,992.73 so average £2,040.36 net pay across those 4 months. There are NHS payslips showing standard hours 30 per week in 2019 and 2020 (going as far as October of that year) so that it is not clear when the Claimant went back up to 37.5h/week although as I understand it, she does accept that at some point she did so. [104] In the Schedule of Loss dated 6 October 2020, Ms “HD” claimed already to have reduced her hours to 30 (from 37.5) per week, a claim repeated in a Schedule of Loss dated 5 November 2020. In the draft Medical Report of Dr Wael Agur (dated 8 September 2020) there is no reference to her injury impacting on her work, yet in her Witness Statement dated 15 September 2020 she states (at para 54) “In August 2019 I had no option but to give up the job I loved and had fought to keep and change my job to Nurse Assessor for continuing healthcare at Northern Devon Healthcare trust. This has allowed me to continue working as it is less physically demanding, although I am now only able to work 30 hours a week over 4 days which has resulted in a reduction in my salary of one fifth…” [105] I accept that the issue now appears somewhat different to how I framed it in the Judgment set out at paragraphs 61 to 93 above, in that there is clearly evidence to the effect that the Claimant had started a working pattern of 4 days per week, although at some point going back up to 37.5h/week. From the Schedules the loss to the Claimant was calculated on a gross rather than a net basis. Her salary at 37.5h/week is stated as £29,608.00, rising to £30,112.00; upon taking up the new role she is on the same salary, but pro rata it comes to £24,089.60. That is a gross reduction of £6,022.40 per annum but after tax and NI would be somewhat less ‘out of pocket’ for her, even before reckoning a return to a five-day week upon lockdown and the ability to work from home. [106] In terms of recovery on the Standard Basis it matters not; the point is that the Claimant was pursuing what turned out to be an unmeritorious claim for lost earnings, given a belated acceptance that she could not prove she switched jobs due to this incident as she was (a) unwell due to a number of other medical issues and(b) well enough according to OH to have worked a 5-day week in her old job had she chosen to stay on. [107] That, together with the issues around using the wrong care rates in the first two Schedules, what does and does not count as ‘care’, claims for incontinence pads, meds et cetera, means that on the Standard Basis I am – to put it mildly – in some doubt as to whether the time spent on these Schedules of Loss was reasonably and proportionately spent At a Hearing on 17 April 2023, after submissions by Ms McDonald for the Defendant and Mr Dunne for the Claimant, both confirmed that their respective clients would be content for the ‘cap’ for Schedules of Loss to be, as in “HD”, 7.9 hours with 1 hour at Grade A rate and the remainder at Grade D, hence that is how the remaining five cases will be approached. . I therefore stand by the allowance already made for the Schedules of Loss in “HD”. Future medical treatment [108] The Claimant asserted that this claim was not “overlooked” or missed off later schedules in “HD”. Once again, it was removed because of changing circumstances and the pro-active approach that Fortitude Law take towards their clients mitigating their loss. The future treatment/medication claim which was valued based on Dr Agur’s Expert Report and was calculated on the basis that the Claimant told him that her wish was for all future care to be untaken on a private basis as she had lost faith / trust in the Defendant NHS Trust’s ability to provide her with adequate care, was removed from her third Schedule of Loss as following detailed telephone discussions the Solicitor had with Ms. “HD” in May 2021 in preparation for the Mediation in the drafting of the Mediation statement – Mrs “HD” confirmed that as she continued to work for the Defendant NHS Trust she would be prepared (as she was at that time very concerned as to how it would look/affect her standing within the Defendant NHS Trust if it were to become known that she was having treatment on a private basis) to mitigate those future expenses by having any required further medical treatment under the NHS – thereby negating the costs of private treatment. [109] D makes the same points as before i.e. are there any attendance notes and if not, how does the Claimant propose to prove this assertion? [120] There is no such attendance note. The correspondence is not helpfully presented as it is not a perfect set of unique items in date order, instead every email string is included in full so that the same messages appear multiple times and it is only vaguely in date order. However, I have looked, and I have not found anything to substantiate what is now claimed. I did say in my covering note on 6 April 2023 that if Mr Hanison could direct me to documents in the Bundle that might change my view I would consider them, and he has not done so. [121] More strikingly, even if I accepted the argument about private bladder Botox etc., where does that leave pain medication, antibiotics on prescription (for multiple UTIs per year) and incontinence pads? It does not stack up and with all due respect to the Claimant it appears that Fortitude Law have simply overlooked those potentially substantial claims. Hence, I stand by my Judgment on this as well. “HD” et al Medical Reports [122] In “HD”, Dr Wael Agur wrote a Report dated 8 September 2020 (following on from a telephone examination on 12 August 2020). Nothing hinges upon the fact that he examined the Claimant over the telephone; this was during the Covid-19 pandemic and I accept that either lockdown prevented a face-to-face meeting or (if it should be that in certain cases there was a brief retreat from lockdown at the relevant time) public health and safety concerns prevented a face-to-face meeting, certainly on the 6 cases currently before me.[11][123] His Report in its served form has 33 numbered pages, but as with the Schedules of Loss there is a lot of common ground between his Report in that case and the Reports in the other 5 cases upon which I am considering Medical Reports as a Preliminary Issue. Looking at all 6 I note the following: Expert Report section “HD” (Agur) “CH” (Agur) “CM” (Riad) “CT” (Agur) “HL” (Agur) “CB” (Agur) Cover: bespoke, contains: Report date Date of birth Examination date Examination method 08.09.20 08.08.71 12.08.20 Telephone 02.11.20 14.11.76 12.08.20 Telephone 14.01.21 13.02.65 08.12.20 Telephone 11.11.20 05.09.59 12.10.20 Telephone 11.12.20 14.09.62 13.10.20 Telephone 23.11.20 14.06.65 03.09.20 Telephone Contents: Introduction Issues addressed/ instructions Current condition[6]Causation pp 3-4 p4 (3 lines) pp 5-9 pp 9-10 p 11 (3 paras) pp 11-16 pp 3-4 p4 (3 lines) pp 5-7 pp 8-9 p 10 (3 paras) pp 10-13 pp 3-4 p 5 (3 lines) pp 6-9 pp 10-11 pp 12-13 pp 14-18 pp 3-4 p 5 (3 lines) pp 5-7 pp 8-9 p 10 (3 paras) pp 10-16 pp 3-4 p 4 (3 lines) pp 5-10 pp 10-11 pp 12-13 pp 13-19 pp 3-4 p 4 (3 lines) pp 5-7 pp 8-9 p 10 (3 paras) pp 10-16 Appendices: References List of Abbreviations Experience/ Qualifications[3]Declaration/ Statement of Truth p 17 no pp 18-31 pp 32-33 p 14 no pp 15-28 pp 29-31 p 19 p 20 p 21 pp 22-23 p 17 no no pp 18-19 p 20 no no pp 21-22 p 17 no pp 18-31 pp 32-33 Obviously common pages with barely any unique content Appendices 17 of 33pp Appendices 18 of 31pp Appendices 4 of 23pp Appendices 3 of 19pp Appendices 3 of 22pp Appendices 17 of 33pp Expert Report section “HD” (Agur) “CH” (Agur) “CM” (Riad) “CT” (Agur) “HL” (Agur) “CB” (Agur) Bespoke pages, more unique than not Cover 1pg Cover 1pg Cover 1pg Cover 1pg Cover 1pg Cover 1pg Intro and issues 2pp Intro and issues 2pp Intro and issues 2pp Intro and issues 2pp Intro and issues 2pp Intro and issues 2pp Current cond. 4pp Current cond. 3pp Current cond. 3pp Current cond. 3pp Current cond. 5pp Current cond. 3pp Pages with considerable common features Prognosis 2pp Prognosis 2pp [Prognosis 2pp] Prognosis 2pp Prognosis 2pp Prognosis 2pp Liability 3 paras Liability 2pp [Liability 2pp] Liability 3 paras Liability 7 paras Liability 3 paras Causation 6pp Causation 4pp Causation 5pp Causation 6pp Causation 7pp Causation 6pp [124] The following points arise. Taking “HD” as the prime example, although the Report has 33 numbered pages, 17 of them are obviously common, with barely any unique content. The details of Dr Agur’s qualifications and experience are about as long as the entire Report (in fact, given the format, probably longer if one were to undertake a word count on them). [125] Of what remains, only the cover sheet, intro and issues and current condition (in effect the history taken from Mrs “HD” over the telephone) are more unique than not. That totals 7 pages of the 33 (21%) and even within those 7 pages there is a lot of common ground or else straightforward admin material, e.g. Dr Agur’s introductory paragraph, a list of documents provided and reviewed, and the issues to be addressed and statement of instruction.[12]Prognosis [127] One might think the prognosis in these cases would be unique and there are certainly unique/bespoke features. However, there are multiple common features, for example:• . In every case it is stated that the chronic pain is permanent and that the Claimant will need to continue long term analgesia for life. Where the Claimant has undergone removal surgery, Dr Agur refers to the statistic that, as is the case with at least 50% of cases, removal surgery did not improve the Claimant’s chronic pain (“HD”, “CT”, “CB”). Where the Claimant has not undergone removal surgery, Dr Agur recommends that she should, but adds that the success rate in improving chronic pain, will only be 50% (“HL”). In “CM” Mr Riad refers to further surgery but does not refer to the 50% chance of her chronic pain persisting thereafter; he simply says she will need pain relief for life. Her Schedule of Loss includes a pre-paid monthly prescription (for pain meds) for life. In “CH”, Dr Agur refers to her two partial removal surgeries, scarring and pain: again 50% is not mentioned but pain meds for life, are included in her Schedules as well.• . In almost every case the Expert states that he expects an 80% or 90% chance of requiring Botox bladder injections every 6 to 12 months (hence the 9 months in the Schedules of Loss). The wording is for all practical purposes identical as is the wording of a follow-up paragraph regarding a 20% risk of developing a UTI. It does not appear that bladder Botox was foreseen for Ms “CH” by Dr Agur and yet her Schedule 3 claims £112,470.00 by way of future losses for this treatment. In contrast, bladder Botox was foreseen for Ms “CT” but her third Schedule does not contain it, whereas her second Schedule contained a claim of £80,490.00 for bladder Botox.• . In every case the Expert recommends Antimuscarinic medication at a cost of £1,300.00 per year. The pain and scarring are stated to have caused the Claimant permanent loss of sexual function for “HD”, “CH”, “CM” and “HL” but not for “CT” or “CB”. Ms “CT” is a widow with serious health issues aside from the TVT-O surgery and Ms “CB” is married but was already being helped with personal care by her husband after several strokes left her requiring ongoing care and assistance.[16]Liability [129] In four of the six Reports, Dr Agur sets out his opinion on Liability in three almost identical paragraphs. He states that he has read and understood the Letter of Claim and what it says about consent pursuant to Montgomery and Chester; he refers to the GMC Consent Guidance [2008] and then asserts that, in his expert opinion, the clinical team ‘clearly’ did not comply with this guidance and therefore, and in his expert opinion, in breach of their duty of care, the clinical team did not provide (Ms “HD”, Ms “CH”, Ms “CT”, Ms “CB”) with adequate information by way of setting out, explaining and discussing with her all the risks of, and all the alternative treatment options available to her rather than, TVT, TVT-O or TOT surgery. [130] In his fifth Report (“HL”), Dr Agur again sets out the three standard paragraphs but adds to them the national standard of clinical practice taken from IPG262 NICE 2008, which suggested that evidence on the safety and efficacy of this type of surgery was inadequate, and that it should only be performed within the context of a Research Study; he adds that he found no evidence that she had signed a separate consent form for this surgery to be performed within such a context. He adds that the specific TOT used in that case had not yet been evaluated in clinical trials, which the clinical team had a duty to inform her. [131] In his Report (“CM”), Mr Riad goes into rather more detail; he refers to her mild SUI and to a Urodynamic Study on 13 January 2010 and to pelvic floor exercises undertaken by her following delivery of her child in 1990 and to the fact (taken from her medical records) that she was neither offered nor received supervised pelvic floor exercises for mild SUI. In his view, offering her TVT Surgery instead, fell below the acceptable standard of care: he refers to NICE 2006 to assert that pelvic floor exercises for at least 3 to 6 months, should have been tried, and that the failure to offer that, or Duloxetine, or a continence vaginal pessary, meant that her care fell below an acceptable standard. He goes on to address flaws in the Consent Form (not least that it was signed on the day of the operation) and to assert that no information leaflet was provided. He deals with a bladder perforation that occurred and went undiagnosed. He then gives the three standard paragraphs more or less exactly as Dr Agur did. [132] The contrast between Mr Riad’s and Dr Agur’s Reports on Liability is striking. On four out of five Reports, Dr Agur states that he understands the law, he understands what the clinical team were supposed to do and says that they ‘clearly’ did not do it. However, this is presented as a bald statement; he has the Medical Records but does not refer to them or give the relevant extracts to show how the clinical team ‘clearly’ did not do what was required. In his fifth Report he goes into a little extra detail but does not really get into the Medical Records on Liability. [133] Looking for example at DAC Beachcroft’s letter of 21 May 2020 to Fortitude Law on “HD”, they say, “…we have provided you with a copy of the patient information leaflet which was given to the Claimant. You have indicated that the Claimant denies receiving this. The patient information leaflet box on the consent form has been ticked, which is contemporaneous evidence that a PIL was given. We also have witness evidence which confirms that the leaflet (the specific version forwarded to you) was given to the Claimant. It is a matter for the Court to decide whose evidence is preferred…the factual assertions raised in respect of risks, benefits and complications discussed and consent given are noted and will be addressed in witness evidence…”[17]Causation [135] Dr Agur and Mr Riad split this into Clinical Causation and Factual Causation and it is fair to say that across these pages there is bespoke content, but there is understandably a lot of common content as well. For example, under Clinical Causation a near-identical paragraph dealing with stand-alone chronic pain and other neurological pain conditions due to nerve damage appears in “HD”, “CH”, “CM” (even though that Report was by Mr Riad), “CT”, “HL” and “CB”. However, there is then an explanation of how the chronic pain and other symptoms (such as loss of sexual function, incontinence and UTIs) can be linked to the specific surgery undergone by the Claimant. [136] Under Factual Causation in “HD” Dr Agur again refers to stand-alone chronic pain, as well as the 2006 NICE Guideline, a 2007 systematic review of the literature by the Birmingham team (Latthe et al), an FDA mesh warning in 2008, the 2009 Cochrane systematic review, a 2010 landmark study by Richter et al, a 2010 study by Cholhan et al, a 2011 Leicester Study, a study by Freeman et al also in 2011, the York Report commissioned by the MHRA, a 2018 systematic review and meta-analysis from the Cochrane Collaboration (Dumoulin et al), a 2013 systematic review and meta-analysis (Li et al), a 2010 large randomised trial (Richter et al – this appears to be the ‘landmark study’ above referred-to), and a 2019 study by Ong et al. [137] Each of these has a paragraph devoted to it, with 13 paragraphs in all; they all appear in “HL” as well. 12 of them appear in “CT” (Cholhan is absent), 9 appear in “CM” (Cholhan and the 2011 Leicester and Freeman studies are missing), 8 appear in “CB” and 6 in “CH”. Cholhan dealt with dyspareunia, pain before, during or after sex, so its absence from “CT” and “CB” makes sense but its absence from “CH” and “CM”, both of whom were said to have ongoing loss of sexual function, is harder to understand. In any event the basic point is that there is a great deal of the same content across all 6 Reports under this heading. [138] Other paragraphs explain how these various studies impact upon the Claimant’s claim; again, there are many common paragraphs across all 6 Reports including that of Mr Riad on “CM”. In “HD” these include a paragraph stating (‘For the avoidance of any doubt’) that synthetic mesh devices are designed to treat only SUI symptoms; this also appears in “CH” and “CT”. There is a paragraph referring to the likely outcome had all the risks of surgery been pointed out, explained to and discussed with the Claimant; that paragraph appears in all 6 Reports. [139] There is a paragraph referring to the outcome had the Claimant received non-surgical treatment; that appears in 5 out of 6 Reports but each is tailored to list the specific non-surgical treatment(s) relied upon. There is a paragraph regarding the outcome had the Claimant received the original, well-established non-mesh native tissue surgery e.g. colposuspension or autologous fascial sling; that is again present in 5 out of the 6 Reports. [140] There is a paragraph explaining the lower risk of adverse outcomes in native tissue as compared to synthetic mesh implantation, which appears in all 6 Reports. This leads to an odd result in that the reference to a better outcome from native tissue surgery appears in the Report on “CB”, but the paragraph suggesting that she should have undergone colposuspension or autologous fascial sling surgery, does not. It does look like another failure to adapt a precedent. [141] There is a paragraph referring to the risks of stand-alone chronic debilitating pain and other adverse sequelae being absent from non-mesh procedures or treatments; that appears in all 6 Reports (it is part of another paragraph in “CT” and interestingly appears to have been cut and pasted into that Report as it has come out in a different point size). Finally, there is a paragraph referring to the relatively lower success rate versus the lack of a causal link between urethral bulking agent injections and stand-alone chronic pain, nerve damage, pain, chronic and recurrent UTIs or OAB. That again appears in all 6 Reports.[18]Conclusion [143] What, if anything, does all of this mean? I refer to the Point of Dispute (‘PoD’) on Dr Agur’s fee in “HD” in which it is stated that the evidence was not complicated and the expert is routinely instructed by Fortitude Law in these cases. The assertion (within the PoD) that the expert has not highlighted inconsistencies between the Claimant’s history and what is in the Medical Records from the time, is borne out by what I have seen. I note the assertion (within the PoD) that the Mediator raised those issues with the Claimant and that the Claimant appeared to have no idea this would come up, but I have not seen any evidence of that at present and so I have not factored it into this Judgment although if borne out it might be relevant to Conduct matters in due course. [144] Dr Agur’s Reports, in particular on Liability, do not engage with the Medical Records and any problems they may pose for these cases going forward. Whilst there is such a thing as a Claimant-minded Expert versus a Defendant-minded Expert, one would expect Dr Agur even as a Claimant-minded Expert, to fulfil his duty to the Court, and put the Claimant herself on notice, of such matters rather than blandly saying the Defendant is ‘clearly’ liable. The Reply refers to Dr Agur having received 1,265 pp of Medical Records but that figure does not add anything to the issue; Dr Agur has not delved into the records in any great depth as far as his Report (certainly – but not only – on Liability) shows. [145] As to the failure to provide a breakdown between Dr Agur and the agency (Speed Medical) I note that in “HD” the Reply does not state that a breakdown has been sought. I find it curious that Speed Medical’s invoice has space on it for an accident date and a vehicle registration number, which (together with the Company’s name) suggests that this is an agency more used to Reports in Road Traffic Accident cases. Even so, I do not think that Stringer v Copley assists the Defendant on the facts in this case. [146] What does assist the Defendant, and which came to the fore during the Hearing (although it was referred to in the PoD) is the fact that Dr Agur does so many Reports for Fortitude Law and that there is so much common material across not only his Reports but also the Report of Mr Riad in “CM”. There was some reference to the way in which Defence lawyers (whether Counsel or Solicitors) are paid well below market rates because of the bulk nature of the work that they do. In the above table it is noted that between 12 August 2020 (when he took a medical history from both Ms “HD” and Ms “CH” over the telephone) and 14 January 2021 (when the Report on Ms “CT” was produced) Dr Agur produced 5 Reports which contain a preponderance of common/precedent material. I do not have any information upon how many more Reports he has produced, during that period or overall, but the sample I have seen is sufficient to enable me to conclude that the fee charged for each of them, is too high. With this level of involvement/instruction and making use of a precedent as he clearly has (and as was clearly reasonable to have done) Dr Agur ought to have been able to make some economies of scale. I do not see that Dr Agur’s fee in “HD” reflects that very obvious fact. [147] As to the Reply stating that, “The evolution of attacks on medical agencies obviously (and rightly) requires medical evidence to be subject to robust tests, therefore it is vitally important that it is done thoroughly and properly after a discussion with the Claimant,” that does not address the issues raised in the PoD. It is a statement of what should happen in every case rather than an explanation of how Dr Agur’s Report in “HD” meets that standard. For the reasons above referred-to I think some of the Defendant’s criticisms of Dr Agur’s Report have been borne out. [148] I do not think that the £1,500.00 offered by the Defendant is sufficient, that is more the level of fee I would expect for an Orthopaedic Report. However, for the Report I have seen in “HD” I would not allow the ‘as drawn’ amount nor the £3,500.00 offered by the Claimant in the Reply either. Instead, I would allow £3,000.00 plus VAT. By way of indication only, I would anticipate reductions to Dr Agur’s fees in the other cases seen by me. [149] As to Mr Riad’s fee, I am not sure how he came to have the same precedent letter as Dr Agur; given that I find that using a precedent in cases with so many similar features was a reasonable and proportionate way to proceed I do not think that it matters, save to say that as with Dr Agur I would expect that precedent to generate a significant saving. That will be a matter for argument when the Preliminary Issues in “CM” are addressed At the Hearing on 17 April 2023, Dr Agur and Dr Riad’s fees were not raised; I take this to mean that the £3,000.00 allowed on “HD” has been accepted by the parties on the remaining 5 cases. If not that should be clarified before this Judgment is handed down. . Misconduct under CPR 44.11 [150] So far as Misconduct under CPR 44.11 is concerned, that is a matter for another day. The payslips bear out what the Claimant was claiming and it took quite strenuous efforts by Fortitude Law to get hold of the Claimant’s OH and employment records. Her Employer (North Devon District Hospital) is, if not one and the same as, certainly closely linked to the Defendant (Northern Devon NHS Healthcare Trust). No doubt the parties will develop arguments upon this issue in due course. [151] I agree that it is premature to argue Conduct until the preliminary issues in all 6 cases have been decided. Hopefully the considerable work done by everyone up to now, will enable that to be done at the next Hearing Subject to the above footnote, it was, and I am grateful to the parties for their assistance. . Judgment on Hourly Rates[19]‘This is my judgment on hourly rates applicable to “HD” but others likely to be similar. Reasonable to use Band 1. The Reply concedes to £325 for Grade A[22]Do not think a Wraith Wraith v Sheffield Forgemasters Limited [1998] 1 All ER 82 argument was made – reasonable to instruct Band 1.[23]Extent to which lay clients don’t have a clue explains a lot. I have included this as it was in Ms McDonald’s note; I would have to see a transcript for the full context but am certain any reference to the Claimants not having a clue (about hourly rates) would not have been intended as a criticism of them. They were given a retainer containing hourly rates to which, as lay people, they could not be expected to apply any legal knowledge.[24]Still think rates are on high side. Run from home office set up. Seek above rates so something to be said on rates point. Some overheads.

Complexity & 7 pillars

[25]Look at 2010 rates & 2021 Guideline Hourly Rates for Solicitors in England and Wales, set in 2010, were updated in 2021; case law suggests that the rates towards the end of that period, should start approaching the 2021 rates rather than being tethered to the 2010 rates. rates. Mood of court towards sliding scale.[26]By 2021 rates came in Ophen and PLK Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC Civ 2423 and PLK and Others [2020] EWHC B28 (Costs) are two such cases. Both allowed rates significantly higher than the 2010 GHR that were, then, still in use. . Not a case guideline rates applicable. RTA, slip & trip, not most complex or valuable clinical negligence cases. There is a degree of specialisation claimed.[27]Rates allowed on basis appropriate clinical negligence Band 1 and a degree of work by Grade A. Grade A £285 Grade B £250 Grade D £120 Costs Lawyer £120 Costs Draftsman £120’