Friday, 29 January 2016

The Jackson Proposals on Fixed Costs for the Multi-Track

Lord Justice Jackson gave the IPA Annual Lecture on 28 January 2016: "Fixed Costs - The Time Has Come". His proposals provide a serious threat to the independent clinical negligence bar.

He argues, as he has done previously, for the introduction of an extensive regime of fixed costs for civil litigation. There should be no "Balkanisation" of costs regimes, but rather a one size fits all "grid" of fixed costs for multi-track claims up to £250,000 - what he calls the "lower reaches" of the multi-track.

The grid can be found at page 13 of his lecture.  By way of example, the fixed costs for a clinical negligence claim for £100,000 damages which settles on acceptance of a Part 36 Offer after exchange of expert evidence would be £17,250 plus disbursements and VAT.

These fixed costs include Counsel.

If work needs to be done in London, add 15% to the costs. For work that needs to be done in Manchester, add nothing.

The problem which these proposals seek to address is that "high litigation costs inhibit access to justice ... If people cannot afford to use the courts they may go elsewhere with possibly dubious results..."

The problem with the high level of costs caused by clinical negligence is not that it prevents access to justice, but that it costs the taxpayer too much money. That is why it is the Department of Health that is already leading the introduction of fixed costs for clinical negligence litigation - it wants to reduce the cost to the taxpayer. The Dept of Health does not want to encourage more claimants to have access to the courts! Saving money may be a laudable aim in itself but introducing fixed costs for clinical negligence would not improve access to justice.

And now to my special pleading on behalf of the Bar. For a clinical negligence barrister up to say 12 years call, most, perhaps all, of their cases will be claims for under £250,000. Realistically a barrister cannot take on a clinical negligence claim under direct public access - they always rely on being a instructed by a solicitor. If solicitors themselves rely on a fixed fee for a case, they will be reluctant to share that out by instructing a barrister. They will want to keep as much of the work as possible in-house.

You can forget the trial fees: as I tell my clinical negligence clients, over 95% of claims never get to trial. It follows that, under the Jackson proposals, fixed costs will only very rarely include the largest element: the trial fee. In all but a few cases the fixed fees will be limited to stages prior to the PTR.

There are substantial differences between these proposals and the fixed fees for PI fast track claims. There are very few multi-track clinical negligence trials each year. The fixed trial fees proposed include solicitor and barrister doing the preparation for trial and all work at and around the trial. In a multi-track clinical negligence claim that can involve a lot of work beyond the advocacy. In contrast there are many fast track PI trials and there is a fixed fee specifically for the trial advocate.

In the vast majority of cases where claimants succeed and their lawyers are actually paid, the fixed costs proposed are at a level that would strongly discourage use of the independent Bar. Suppose Mr and Mrs Smith instruct solicitors because they are concerned that negligent obstetric care caused their baby to suffer brain damage and later die in the neonatal unit. Damages scrape over £25,000. The solicitor has to obtain and examine the medical records, explain the process of investigation and litigation to the clients, obtain evidence from them, instruct relevant experts (at least two), ask relevant questions of the experts to ensure that there is a valid claim and then advise on the prospects of success and write a letter of claim and consider the reasoned response. They have to keep the clients informed at all stages. Where, out of the fixed fee of £3250 would the solicitor find the money to pay Counsel to become involved pre-action?

It would be bad enough if these were the fees for each case handled by lawyers. Under the CFA system a lawyer will only receive fees in a proportion of the cases on which they work.

Of course fixed fees provide an incentive for the unscrupulous legal service providers to do less work for the same money: to process claims with minimum effort. Better to under-investigate and under-settle than to put in more time and effort for the same legal fees. Why bother paying a barrister out of fixed costs to give an independent opinion on the merits and value of the claim? Use more para-legals and fewer, expensive qualified lawyers.

Widening access to a poor legal service is not the same as improving access to justice.

As for the 15% uplift for London work! I shall keep my counsel - which is more than these proposals would do.

Monday, 25 January 2016

Williams v Bermuda - A Short Explanation

A patient goes to A&E complaining of abdominal pain. He has appendicitis. A scan is ordered but there is an avoidable delay before a scan is performed and an appendectomy undertaken. At the operation it is found that the appendix has ruptured and there was a large accumulation of pus which led to myocardial ischaemia.

These were the facts in the case of Williams v The Bermuda Hospitals Board [2016] UKPC 4 decided by the Judicial Committee of the Privy Council on 25 January 2016.

The trial judge held that the claimant had failed to prove that the complications were probably caused by the defendant's failure to diagnose and treat him expeditiously. He awarded $2,000 for additional pain and suffering during the period of culpable delay but nothing for the injury caused by the complications.

The Court of Appeal of Bermuda overturned that decision, finding that the delay had materially contributed to the complications remitted the case for assessment of damages. The sum of $60,000 was ultimately awarded. The Court of Appeal found that the trial judge had been in error "by raising the bar unattainably high". The proper test of causation was "not whether the negligent delay and inadequate system caused the injury ... but rather whether the breaches of duty by [the hospital board] contributed materially to the injury." It was beyond argument, found the Court of Appeal, that the breaches had contributed materially to the injury. The question of causation was not one of all or nothing.

The hospital board appealed. The NHSLA was an intervener, supplying written submissions only, represented Bevan Brittan LLP, as was the Appellant Board.

The Respondent patient contended that the Court of Appeal had been correct - it is enough that the defendant's negligence has contributed to the claimant's injury where the evidence points to there having been cumulative causes. The same principle does not apply where there are merely several possible causes any of which may have been entirely responsible for the injury. The Court of Appeal had been entitled to conclude that the complications were the "product of a steadily worsening accumulation of sepsis over several hours, which was caused in part by the negligence of the hospital board."

The Privy Council rejected the Appellant's submission that the material contribution principle only applied to simultaneous contributory causes - "As a matter of principle successive events are capable of each making a material contribution to the subsequent outcome." [39]

The Respondent's heart and lungs were found to have been damaged by sepsis; the sepsis developed incrementally over a period of a number of hours, progressively causing the myocardial ischaemia: "[The] development [of sepsis] and effect on the heart and lungs was a single continuous process, during which the sufficiency of the supply of oxygen to the heart steadily reduced." [41]. On the balance of probabilities the negligent delay, found to be at least 2 hours 20 minutes "materially contributed to the process, and therefore materially contributed to the injury to the heart." [42].

In obiter remarks the Privy Council supported the Bailey v MOD findings and expressed caution about applying a "doubling of risk" test to causation.

This case raised a principle regarded as one of importance by the Appellant, and doubtless by the NHSLA also since it intervened. I have previously posted on the application of material contribution in clinical negligence cases. This decision will have implications for many kinds of clinical negligence claims, including obstetric negligence. Brain damage suffered by babies during the late stages of labour/first minutes after delivery, is often due to a period of hypoxia and ischaemia. Hypoxic ischaemic encephalopathy (HIE) is a brain dysfunction caused by a reduction in the supply of oxygen to the brain and other organs compounded by low blood flow to vital organs. The duration of hypoxia and ischaemia is an important factor in determining the outcome for the baby. If negligent delay contributes to the process of deprivation of oxygen and blood flow then it is likely to be found to have made a material contribution.

I have written previously about the possibility of using the principle of material contribution in claims for delay in diagnosing cancer. This case would lend support to that approach in appropriate cases.

Where the "injury" is divisible, it is thought that the tortfeasor is responsible only for the extent of the injury caused by it. If the injury is indivisible then a defendant who has tortuously contributed to the cause of the injury will be liable in full. I have been provided with a copy of the judgment of the Court of Appeal of Bermuda by Dr David Levy. It appears to have been implicitly accepted that if there was a material contribution then the defendant was liable for the whole injury. It would seem to follow that it was accepted that the injury suffered by Mr Williams was indivisible. That was not made explicit. If you would like a copy of the Court of Appeal's judgment, please email me on

Decisions of the Judicial Committee of the Privy Council are not binding in domestic courts. They are however persuasive authority. The fact that the judgment was given by Lord Toulson and the other judges were Lady Hale, Lord Clarke, Lord Hughes and Lord Hodge, will give this decision considerable persuasive weight.

Thursday, 21 January 2016

Moving Out

I have nothing against London. I love visiting London. Some of my best friends live there. 1

But location does not confer merit.

As with most other spheres of life in this country, the heart of our legal system lies in London. It is home to virtually every major legal institution. Naturally it is a magnet for able lawyers and legal firms.

Contrary to some beliefs, however, legal life also exists outside the capital city.

In fact most legal activity occurs outside London. A 2014 report supported by the Bar Council, the Law Society and the government, found that the legal services industry employs 315,000 workers of whom 103,000 are in London (32.6%). Gross value added by the industry was £20.4bn of which London was responsible for £6bn (29.4%). Over 70% of the gross value added by legal services in UK was generated outside London by over two-thirds of workers employed in legal services.

Of course there are many national firms of solicitors. There are firms in Manchester with clients in London, and vice versa. Barristers in London sets spend time on circuit, and provincial barristers regularly travel to the London courts, some having second tenancies at London sets. It is not possible to draw neat geographical lines around the provision of legal services. But the evidence shows that it is "the regions" not London that generate most of the legal services income in this country.

The bar is not set lower for lawyers entering the profession outside London. It is neither easier nor harder to obtain a pupillage at my chambers (based in Manchester, Leeds and Birmingham) than it is at most London sets. We are not the poor relations of our London cousins.

The Bar is perhaps even more London-centred than the legal profession as a whole. This is in part for historical reasons- the four Inns of Court are located there. And barristers naturally wish to locate near the main courts, including the appellate courts. Nevertheless the Bar has a substantial presence outside London. The Bar Barometer for 2012 found that one in three barristers were members of circuits other than the South East Circuit (the circuit for most London practitioners).  Indeed, to my surprise, the report found that there were more chambers outside London (399) than in London (369).

Understandable though it is that there should be a focus on legal London, perhaps there is something of an imbalance. Whilst over two thirds of legal service providers are in the regions, the Royal Courts of Justice, the Supreme Court, Court of Appeal, the employment appeal tribunal, the Bar Council, the Law Society and many other legal institutions are all based in the capital.

Unfortunately this imbalance has become entrenched and affects attitudes and behaviour.

Many barristers seek to do government civil work. They compete to be appointed to the  Attorney-General's panel of counsel in order to be entitled to receive instructions from government departments. There are three London panels, A, B and C, and there is a separate regional panel with no such gradations. The London A panel is reserved for senior juniors who are allocated "the most complex government cases". A colleague was once told that he had to have a London chambers address to be considered for the A panel.

Approximately 10% of barristers in England and Wales practise on the Northern Circuit according to the Bar Barometer. This month 107 new silks were appointed. Three were from the Northern Circuit (2.8%). That is half of the number appointed from a single chambers in London. In 2015 there were 3 out of 93 (3.2%). The published records of the diversity of applicants and those appointed to silk do not include their geographical location.

Guides to the Bar such as the Legal 500 and Chambers UK, provide a valuable service in providing assessments of the merits of lawyers but their annual awards reflect an attitude that divides the legal profession regionally. So there are separate awards for "Chambers of the Year" and  "Regional Chambers of the Year", the implication being that chambers are considered for one or for the other.

In recent years the General Medical Council moved its regulatory hearings from London to Manchester. Administrative courts have opened up in provincial cities. Occasionally the Court of Appeal sits outside London. But much more could be done to correct the geographical imbalance, and to reflect the fact that most lawyers work outside London. It would seem proportionate, practical and cost-effective for more legal institutions to move out.

1. Having moved there from the North.

Wednesday, 13 January 2016

Saatchi BIll - The Writing's on the Wall

I very much hope that this will be my last post on the Saatchi Bill - perhaps you do also!

Promises made in parliament appear to herald an end to the Bill.

The state of play is as follows: Lord Saatchi re-introduced his Medical Innovation Bill  following the general election. It remains in the House of Lords. He has proposed that it should be "fast-tracked" to the House of Commons. Subsequently, Chris Heaton-Harris, Conservative back-bencher, introduced his Access to Medical Treatments (Innovation) Bill into the House of Commons where it has now passed the Committee stage and is due to be debated at the Report stage on 29 January.

The Saatchi Bill website announced that Lord Saatchi had "handed over" the Medical Innovation Bill to Mr Heaton-Harris. Lord Saatchi has not taken any steps to progress his Bill whilst the AMTIB proceeds through the Commons.

The AMTIB is in two parts. The first provides for a data base for "innovative" treatments. The second, clauses 3 and 4, duplicates, with some changes, the Saatchi Bill.

Just as the Saatchi Bill has been the subject of widespread opposition from medical, research and patient bodies, so have clauses 3 and 4 of the AMTIB.

Unlike her predecessor, Heidi Alexander, Shadow Health Secretary, has joined the Liberal Democrats in expressing serious concerns about the Bill. So has the SNP's Dr Philippa Whitford (see the debate at Committee stage on the link to the Bill above).

At Committee Stage, Mr Heaton Harris said:

"I really want to get [clauses 3 and 4] right. If I cannot, I will happily table amendments myself to delete them.

"I would like to have another go, working with others, to try to get [clauses 3 and 4] to the place that deals with the specific problem that I have identified; that does not change the common law and gives doctors the assurance they require.... If we cannot get anywhere he has my assurance that I will table amendments to delete those parts of the bill at a later stage. I cannot be much clearer than that..."

"If I cannot get the controversial parts in clauses 3 and 4 into the right place quickly, I intend to table amendments to delete them."
It is surely now clear that it is not possible to "get them right" and that therefore Mr Heaton-Harris will have to deliver on his promise to withdraw sections 3 and 4. They cannot be amended to meet the concerns of the Bill's critics or to leave the common law unchanged.

A joint statement issued by a plethora of representative bodies, including  the Medical Protection Society, which represents doctors accused of negligence, the BMA, the Royal Colleges and the Patients' Association, has made this evident:

"The AMTIB is based on the false premise that medical innovation is being stifled by a fear of litigation held by doctors. There is no evidence of this from the Medical Protection Society, Medical Defence Union, the General Medical Council (GMC) or our various memberships.


"... we think that if enacted this Bill will actually harm good innovation by weakening patient protection, adding unnecessary bureaucracy and undermining good scientific practice."

As if that were not enough to kill off clauses 3 and 4, a host of medical and research charities have also condemned the Bill, stating that it is not only unnecessary but may "adversely impact on patients and medical research".

Lord Saatchi's view is that the common law is an obstacle to medical innovation. His Bill, and clauses 3 and 4 of AMTIB are designed to change the common law - otherwise there is no point to them. I suggested an amendment which would have included a provision that sections 3 and 4 did not change the common law as to whether a doctor was or was not negligent. The Department of Health rejected the idea of such an amendment, stating:

"We think the intended effect would be that all doctors would remain subject to the existing common law test of negligence.  As a result the purpose of clauses 3 and 4 of the Bill would be unclear. "  

In other words Mr Heaton-Harris's ambition to work on clauses 3 and 4 so that they don't change the common law is not possible to achieve: if they do not change the common law, they have no purpose.

Since those whom the Bill is intended to assist to help patients so strongly oppose the Bill, and since clauses 3 and 4 cannot be amended to leave the common law unchanged without wrecking that part of the Bill, it appears that clauses 3 and 4 will be withdrawn by Mr Heaton-Harris, presumably before the Report stage on 29 January.

Where will that leave the Saatchi Bill? Since Lord Saatchi has "handed over" his own Bill to Mr Heaton-Harris, it must be presumed that he will accept its fate. If clauses 3 and 4 of AMTIB fall, surely Lord Saatchi will withdraw his own Bill. To do otherwise would be to waste more time and money on an unwanted and unworkable Bill that had already twice failed to make it through the Commons (before the election and now under the AMTIB).

If the data base provisions of AMTIB survive then that, rather than a reckless interference with the common law of clinical negligence, will be the legacy of Lord Saatchi's Medical Innovation Bill.

None of this has yet come to pass, but it does appear that the writing is on the wall for the Saatchi Bill.