in long running clinical negligence cases

payments on account in clinical negligence cases

The Claimant successfully appealed a decision to refuse a further interim payment on account of costs in a case where 90% liability had been admitted and it was agreed that determination of quantum will not be possible until 2022. The DJ had fallen into error in concluding that the Claimant’s correct course was to follow detailed assessment of his costs in line with a liability costs order which had been made in 2012.

HHJ Robinson overturned this decision on the basis that (inter alia):

  • The Claimant’s current solicitors, Switalskis, would derive no benefit from the 2012 liability costs order; and
  • As no had yet been made by the Defendant it was a “virtual certainty” that the Claimant would recover costs to date.

Finding that, having secured interim damages payments in the total sum of £1.2m the Claimant had already achieved partial success within the meaning of rule 44.2(4)(b), the Judge exercised his discretionary powers under CPR 44.2(1), CPR 44.2(2) and 44.2(6)(c) (subject to argument on the form or order) to further award costs up until 22 September 2017 with a payment on account in the sum of £150,000.

Although fact specific in some respects the decision is likely to be welcomed by solicitors dealing with substantial long running clinical negligence cases where they have the potential to be held out of funds for many years, especially where liability has been determined at a relatively early stage. Concluding, HHJ Robinson said at para 37:

“Failure to ensure adequate cash flow during the period of inevitable delay may lead to the perverse and undesirable consequence that solicitors are unwilling to take on case [sic] such as this at an early stage.”

*Permission to appeal this decision has been refused by the Court of Appeal