3rd May 2022
Welcome to the third issue of the TGC Clinical Negligence Newsletter.
The last six months have seen a steady stream of important decisions with direct or indirect implications for medical negligence practitioners. There has been some disappointment at the initial outcome in the conjoined appeals in Paul & Ors (see below), where the Court of Appeal held that it was bound by earlier precedent in setting an arbitrary limit of ‘proximity’ in secondary victim claims; but the excitement of anticipation that the matter will now be reconsidered by the Supreme Court, who have effectively been invited (by the presiding judges) to re-clarify the law in this area. This is a long-awaited development that will have wide-ranging implications in clinical negligence cases, particularly where there has been negligent misdiagnosis, because there is inevitably significant delay between the act of negligence and any resulting traumatic event that might be witnessed by a close relative and trigger psychiatric injury.
More widely, practitioners will be aware of the Ockenden Report and the consultation on extending the Fixed Costs Regime to clinical negligence cases valued up to at least £25,000, as well as preliminary moves towards stricter enforcement of ADR. This edition therefore includes an opinion piece from Peter Freeman, an expert on Early Neutral Evaluation (ENE), who strongly advocates for this type of ADR but on a voluntary rather than compulsory basis. It is notable that ENE can now be ordered by the Court under CPR 3.1(2)(m) and it can be anticipated that, where parties refuse to engage in other forms of ADR, such an order will increasingly be sought. This is likely to result in more streamlined and effective justice than further extension of the fixed costs regime that would inevitably limit access to justice in complex but important cases of limited financial value; classic examples would be those involving the deaths of minors. ENE would also be a far better and fairer solution to reducing litigation costs than the new drive to introduce some form of ‘no fault scheme’ (as now advocated by the House of Commons’ Health and Social Care Committee). There is no doubt that battles lie ahead on this issue.
These are just some of the matters that are considered in this edition. To help you navigate the contents with greater ease, here is a more detailed overview of what you can expect: –
Breach of Duty & Causation
• To kick us off, I will be discussing the Court of Appeal’s determination of the combined appeals in Paul v The Royal Wolverhampton NHS Trust, Polmear v Royal Cornwall Hospital NHS Trust and Purchase v Ahmed  EWCA Civ 12, which grapple with the thorny issue of secondary victim claims for psychiatric harm (specifically the requirement of ‘proximity’).
• Dominic Adamson Q.C. and Rochelle Powell dissect the tragic case of Traylor & Anor v Kent and Medway NHS Social Care Partnership Trust  EWHC 260 (QB) which concerned the overlap of civil litigation and convention rights (as well as the defence of illegality).
• Emma-Jane Hobbs analyses Toombes v Mitchell  EWHC 3234 (QB) which touches on the vexed principle of ‘wrongful birth’ in the context of pre-conception advice.
• James Arney Q.C. analyses Thorley v Sandwell & Est Birmingham NHS Trust  EWHC 2604 in which the High Court invited an “authoritative review” of the principles governing ‘material contribution’ as it relates to causation in clinical negligence cases.
• Anthony Johnson breaks the duck of the Newsletter’s new section specifically on evidentiary issues with analysis of Watson v Lancashire Teaching Hospitals NHS Foundation Trust  EWHC 148 (QB).
• James Laughland considers Dalchow v St George’s University NHS Foundation Trust  EWHC 100 (QB), which underscores the importance of proving factual causation as an element of establishing liability in medical cases.
• James Yapp, analyses HTR v Nottingham University Hospitals NHS Trust  EWHC 3228 (QB) in which the trial judge had to assess the accuracy of a witness’ recollection and the utility of (neutral) entries in medical records.
• Marcus Grant considers Radia v. Marks  EWHC 145 (QB), a professional liability case pertaining to the scope of liability for expert witnesses.
• Turning to procedural issues, Philip Matthews highlights the updated clinical negligence standard directions. • Richard Boyle explores the interplay between capacity and limitation via the case of Aderounmu v Colvin  EWHC 2293 (QB).
• As to costs issues specifically, Anthony Johnson analyses Gibbs v King’s College NHS Foundation Trust  EWHC B24 (Costs), which related to remission of court fees and failure to mitigate.
• Philip Matthews summarises the Practice Note by the Senior Costs judge which sets out some helpful practical guidance on the approval of costs settlements, assessments under CPR 46.4(2) and deductions from damages, as it relates to children and protected parties.
• Finally in this section, I consider Ho v Adelekun  UKSC 43 in which the central question before the Supreme Court was: in claims to which Qualified One Way Cost Shifting (‘QOCS’) applies, is it permissible to order set-off of a defendant’s costs against a claimant’s? Alternative Dispute Resolution
• Peter Freeman makes a guest appearance to consider recent developments away from the Courtroom, which will affect the way claims are resolved in future. In particular, he considers the Ockenden Report and the Fixed Costs Regime for Clinical Negligence, as well as arguing for a greater emphasis on voluntary Early Neutral Evaluation.
• To conclude, Philip Matthews and I set out the new NICE guidelines on ‘Rehabilitation After Traumatic Injury’, which provide a set of useful recommendations for best practice.
We very much hope you enjoy this publication, and welcome any feedback.