In recent months, I have written both about the consequences of failing to beat a Part 36 offer and how severe a finding of fundamental dishonesty is in a personal injury claim.

The recently decided case of Aviva Insurance Ltd –v- Aleksander Kovacic [2017] EWHC 2772 (QB) involved both a failure to beat a Part 36 offer and findings of dishonesty at first instance which subsequently led to Mr Kovacic being found in contempt of Court.  Such a finding is extremely serious; it is a criminal offence and can result in a prison sentence.

Mr Kovacic was involved in a road traffic accident in 2010 in which he suffered serious injuries including fractures of the right scapula, right second rib and right ulna; fractures to both femurs and some spinal fractures as well as a rupture of the left patella tendon.  He was admitted to ICU, underwent several surgeries and was referred for physiotherapy.  There was no dispute that he had suffered significant injury.

Liability was admitted by Aviva Insurance and Mr Kovacic issued proceedings in 2013.  The financial loss was pleaded at in excess of £1 million.  During the course of those proceedings, Mr Kovacic claimed that he struggled with many activities of daily living and he signed various statements of truth to that effect.  He also told both his own medical experts and those instructed by Aviva that he had difficulty walking; that he needed a stick to walk; that he struggled to bend down and, amongst other assertions, that he could not drive.

Aviva commissioned surveillance evidence which was served on Mr Kovacic’s solicitors.  The surveillance footage showed that Mr Kovacic was much more capable than he had made himself out to be in that he was seen walking much further than he claimed he could and without a stick and also driving his car without difficulty, sometimes on long journeys.

Following this, Aviva made a Part 36 offer in the sum of £350,000 which Mr Kovacic rejected.  The matter was fixed for an assessment of damages hearing which took place in February 2015, before His Honour Judge Bidder QC, sitting as a High Court judge.  Following a three day hearing, the judge found that Mr Kovacic had significantly exaggerated his current condition and his physical limitations and that he had told the medical experts numerous lies.  He awarded Mr Kovacic £95,114 in damages.  Mr Kovacic had therefore failed to beat Aviva’s Part 36 offer of £350,000 and was ordered to pay Aviva’s costs from 30 December 2013 up to and including the hearing.  This was therefore some 14 months of costs and on an indemnity basis.  The seriousness of failing to beat a Part 36 offer is clearly demonstrated here.  Mr Kovacic could expect that all of his damages would be swallowed up in meeting the costs order.

However, it did not end there for Mr Kovacic.  Counsel for Aviva also asked the judge whether he could confirm that he was satisfied as to the criminal standard of proof in respect of the dishonesty findings.  The judge confirmed that he was satisfied to that standard.

Mr Kovacic went on to attempt to appeal the result.  Permission was firstly refused on the papers and subsequently at a hearing in July 2016.  Following this, Aviva applied for permission to bring proceedings against Mr Kovacic for contempt.  At a hearing on 5 May 2017, the court granted Aviva permission to bring contempt proceedings.  The hearing duly commenced on 16 October 2017 before Mr Justice Spencer.

The judge considered Mr Kovacic’s evidence, the surveillance footage and the findings of the trial Judge Bidder QC.  He concluded that 12 allegations of contempt of court had been proved to the criminal standard.  Those included the claimed lack of mobility, alleged need to use a stick, inability to bend down and inability to drive.  Mr Kovacic therefore not only failed to beat a Part 36 offer, he was also found guilty of a criminal offence.  He was sentenced to three months imprisonment for each of the 12 counts of fraud to run concurrently and suspended for 18 months.  He was also ordered to pay a £10,000 fine within 12 months.

This case shows how very serious the consequences of exaggerating injuries can be and is a reminder to claimant solicitors to warn their clients about what signing a statement of truth actually means.  Insurers are increasingly aware of potential fraud and it is wise to advise clients that they may be the subject of video surveillance.  The vast majority of claimants are truthful about the extent of their injuries and they will have nothing to fear.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Last year, myself and a group of esteemed colleagues did the “fire walk” for Headway East London, a brain injury charity that we at Anthony Gold have been supporting for a number of years and continue to support.

The “fire walk” involved walking on hot coals and we raised almost £2,000 without getting our feet burnt!

It was certainly a worthy cause. Dealing with brain injury claims has given me an insight on just how difficult life can be for those with brain injury and their families.

There are many different causes of brain injury, accidents being one cause. The effects are complex and wide ranging. Headway services are designed to suit each individual’s circumstances, needs and aspirations.

Headway provide therapies, advocacy, family support and community support work alongside their day service: a community venue where members can make the most of their abilities and interests. Their occupational projects include an art studio, writing projects and a professional kitchen where members cook each day for other members, volunteers, staff and visitors.

So, this year when we were asked whether we would like to take on another challenge, to walk on broken glass, some us just agreed without even thinking about it! It should be er, a doddle, right? After all, if we can walk on hot coals, we can walk on broken glass…

It costs £4,368 for one year’s membership to the Headway day service for brain injury survivors. Headway are hoping that through the broken glass walk they can fund places for two individuals who otherwise may not have the financial means to attend the centre.

With continued support and generosity from family, friends, colleagues and others who find the idea of injury lawyers in particular, taking on such a daring task rather amusing, we are hoping to raise as much as possible this year too.

If you would like to sponsor us, please click on the link below. The walk is on 22 November and all support is much appreciated.

http://uk.virginmoneygiving.com/team/anthonygoldglasswalk17

 

In the recent case of Revill v Damiani the court had to determine as a preliminary issue, whether insurers were entitled to resile from a compromise agreement made with the claimant who was a protected party.

It was common ground that the Civil Procedure Rules (CPR) have been interpreted to mean that a compromise with a protected party is not binding unless and until it is approved by the Court.  This means either party may withdraw from the compromise at any time before it is approved.

In this case, the claimant alleged that the provisions of the CPR were incompatible with his rights protected by article 14 of the European Convention on Human Rights (EHCR),  as there was an unjustifiable discrimination against him as a protected party when compared to a party who was not protected.

The claim arose as a result of a road traffic accident on 6 April 2015,  when the insured driver crossed over into the opposite carriage way causing a collision with the claimant motorcyclist.  The claimant suffered from a very severe traumatic brain injury and the medical evidence showed that he lacked capacity to conduct the litigation or his own affairs; requiring his partner Kirsty Jarram to act as his litigation friend.

The claimant made claims for among other things future loss of earnings, future care and case management costs and future therapy costs.  Liability was admitted and at a joint settlement meeting on 24 February 2017, an agreement was reached between the parties, which included a lump sum payment for his future losses.

The calculations for the future losses used a multiplier based on the then discount rate at 2.5 percent.   In clause 3 of the memorandum of agreement the parties provided that “in the event of a reduction in the discount rate before the date of the court approval hearing the future losses as set out herein will be recalculated in accordance with the  reduced discount rate”.

Following the Lord Chancellor’s announcement that the discount rate would be reduced from 2.5 percent to minus 0.75 percent on 27 February 2017, the amount to be paid to the claimant was recalculated and had significantly increased.

In a letter dated 13 March 2017, the insurers’ solicitors advised that the insurers were withdrawing from the compromise.

The claimant contested the insurers’ right to withdraw from the agreement and applied for an approval hearing.  In response to the claimant’s submission that the provisions of the CPR were incompatible with his article 14 rights, the insurers contended that these provisions are justifiable and proportionate.

It was agreed firstly that the claimant’s status as a protected party for the CPR is an “other status” for the purposes of article 14 of the ECHR. Secondly,  the claim made by the claimant against the insurers fell within the ambit of article 6, because it involved the determination of the claimant’s civil rights. Thirdly, it was agreed there was a difference in the treatment of a protected party and another litigant who is not a protected party in bringing a claim for damages, as the other litigant can compromise his claim without the court’s approval.

This meant that the issue between the parties was whether the difference in treatment has an objective and reasonable justification, in the sense that (1) the difference of treatment pursues a legitimate aim; and (2) there is a reasonable relationship of proportionality between the means employed and the aims sought to be realised.

These aims were identified as: (1) to protect the interests of the protected party, including from any lack of skill on the part of their legal advisers; (2) to provide a means by which insurers may obtain a valid discharge in respect of the claim; (3) to ensure that money recovered is properly looked after and (4) in a fatal accident case involving children to ensure that the interests of dependents entitled to share of the recovery are properly defined and protected.

It was common ground that the difference in treatment between the protected parties and other litigants pursued legitimate aims. Therefore the real issue was whether there was a reasonable relationship of proportionality between the means employed requiring the compromise to be approved by the Court and the aims sought as above.

The Court held that the approach taken by the CPR in the compromise rule was long established and provided certainty and it allowed all parties including the protected party to withdraw from a compromise before it had been approved. This afforded a fair balance to withdraw from the compromise for both parties.  In addition, the relevant provisions of the CPR formed part of a series of rules which included the duty on the court to have active case management of both protected and unprotected parties in a proportionate and efficient manner to secure the good administration of justice and to protect the relevant rights.

The court therefore dismissed the claimant’s application to bind the insurers to the compromise of 24 February 2017 and it did not make a declaration that provisions of the CPR were incompatible with the Human Rights Act 1998.

This case is a useful reminder that a settlement compromise between parties involving protected parties cannot be considered binding until approved by the court, and either party can withdraw from a prior agreement. On some occasions, this may be useful for claimants who are seeking to secure a higher settlement sum just before a court approval. However, as in the present case, it can be damaging to a claimant whose previous agreement was withdrawn.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

In the face of increasing government and insurance company pressure for a reduction in clinical negligence claims and their associated cost, and as a claimant clinical negligence lawyer with an NHS past as an ex-medic, I read with particular interest two recent articles in two different broadsheet newspapers on some topical problems within the NHS.

The first was in the Telegraph:

The King’s Fund has just reported that the number of NHS beds has halved in the last 30 years. It may not be coincidence that, in a similar period of time, numbers of clinical negligence claims have significantly increased, although it is not possible to compare with certainty the figures because of the vagaries of past reporting of adverse incidents and claims within the NHS. Nevertheless, as the article states: “bed numbers have dropped from 299,000 to 142,000 since 1987, at a time when the population has risen by 16 per cent, with the number of pensioners up by one third”. This is a huge reduction and it is further noted in the report that many hospitals are stretched to breaking point. It is also remarked that England has “just 2.3 beds per 1,000 people, compared with an EU average of 3.7”.

The second article was in the Guardian:

This article states that a survey carried out by the Royal College of Nursing “of 30,000 nurses finds 53% fear quality of care is suffering, and some patients are being left to die alone”, with an explanation within the body of the text commenting that 53% of nurses said patient care had been compromised in their last shift, with over two-thirds of these being in A&E and other urgent or emergency care settings. Further, the article highlights that “One in three hospital nurses are too busy to relieve patients’ pain, give them their medication on time or talk to them and their families, research reveals”. Additionally, 36% of respondents did not have enough time to carry out “necessary” tasks. The survey is alarming, though, and whilst apparently a Department of Health spokesman declared that the government is committed to funding an extra 10,000 training places for nurses, given their modest pay and often difficult working conditions, and of course Brexit, it is not immediately obvious, to me at least, as to how exactly the most needed posts are going to be filled. It is also of no surprise that the Guardian picks up on the King’s Fund Report on bed numbers, which simply compounds the problem.

It goes without saying that there are those who would argue that these problems are fuelled by excessive claimant clinical negligence cases and their drain on NHS funds, which could be better used to pay for beds and nurses, and that me and my ilk are to blame, at least in part. However, whilst that is a whole separate debate, the bottom line is that clinical negligence cases can and will only exist when there has been negligence by a health professional resulting in harm to a patient: absent the negligence, absent the case and absent the resulting cost. It is not rocket science to see (as I and many others have written countless times before) that prevention is better than cure.

It is all very well blaming the lawyers (and by extrapolation injured patients who have the temerity to sue the NHS); but, whilst the NHS’s expenditure on clinical claims in 2016/17 (which will reflect claims reported to the NHSLA over a number of the preceding years) of £1.7 billion is indeed a very large figure, it was in fact less than 1.4% of the Department of Health’s Budget of £123 billion[1], which in turn was about 6% of the GDP. It is worth remembering the context of these figures: current health expenditure in the UK was a relatively poor 9.75% of GDP in 2016, as compared to 17.21% in the USA, 11.27% in Germany and 10.98% in France, and the NHS employs well over 550,000 clinical and related staff and deals with 1 million patients every 1½ days [source: NHS Confederation]. Whilst the best way of reducing the figure of £1.7 billion is to reduce the negligent errors in the first place, legal claims remain significant in number and cost and it is, therefore, perhaps somewhat trite to point out that cuts in hospital beds and shortages of nurses will likely serve only to increase rather than reduce the errors.

Further, notwithstanding NHS Resolution’s assertion that one of their main aims is to improve patient safety by way of “candour, investigation and learning”, it remains a sad fact that the Chief Medical Officer’s paper on the NHS published on 13 June 2000, over 17 years ago, entitled “An organisation with a memory”, said much the same. The paper is now located in The National Archives with a summary paragraph stating, “Adverse health care events cannot be eliminated from complex modern health care but the recommendations of this expert group are designed to ensure that lessons from the past are used to reduce the risk to patients in the future. The cost of adverse events is increasing; there is also a distressing similarity present in some of them”. Therefore, it very much appears that the NHS seems to have made little, if any, progress where it really matters – learning – and we can only hope that the new NHS Resolution can and will improve upon its predecessor, the NHS Litigation Authority – but please excuse me if I can only but think: we have been here before.

For my part, as an ex-NHS employee and a staunch NHS supporter, I would welcome a reduction in clinical negligence costs, but one that is as a result of a reduction in negligent incidents in the NHS and not one that comes at the expense of access to justice and appropriate redress for negligently-damaged patients.1

Recent case law has reminded claimant lawyers to be careful to comply properly with the rules on service of the Claim Form or risk having the claim struck out.

The service provisions are found in Part 7 of the Civil Procedure Rules.  Rule 7.2 states that proceedings are started “when the court issues a claim form at the request of the claimant”.  Rule 7.2(2) goes on to say that a Claim Form is issued on the date entered on the form by the court.

Service of a Claim Form is then found in rule 7.5 and is reproduced below:

“7.5

(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.”

The rules differ for service outside of the jurisdiction but in general, the most claimant lawyers will be serving Claim Forms within England and Wales.

As stated in rule 7.5(1), the claimant or their representatives must effect service within four calendar months of the date of issue of the proceedings.  Under rule 7.6, the claimant can make an application to the court to extend the time for service of the proceedings, provided that the application is made during the four month service period.

But what happens if the claimant’s solicitors either fail to serve Claim Form completely or do not serve within the time limit?

It would appear that the courts are hearing something of a glut of these types of issues at the current time as Master McCloud recently commented in her judgment in Jones v Chichester Harbour Conservancy & Ors [2017] EWHC 2270.

that it was “one of three cases relating to service issues in which I will be giving judgment”.

The case of Jones revolved around whether service of the Claim Form was properly effected when the deemed date of service was outside the specified time limit but when the actual step of serving was taken within that time limit.

In that case, the claimant’s solicitors issued proceedings in the High Court on 1 July 2016 and therefore had until 1 November 2016 to serve them.  In October 2016, they applied to the Court to extend the time for service of the Claim Form to 17 January 2017 and that order was made by Master Fontaine.

On 17 January 2017, the claimant’s solicitors emailed the Claim Form to the first defendant at 4.27pm.  The hard copy was sent by first class post and was received by the first defendant on 18 January 2017.  The first defendant had not agreed to accept service by email.  The first defendant then made an application on the basis that the Claim Form was not validly served.  The second and third defendants also made applications in the same terms.

The other relevant rule in this case was CPR 6.14, namely that a Claim Form served within the UK is “deemed to be served on the second business day after completion of the relevant step under rule 7.5(1)”.

The defendants argued that Master Fontaine’s order meant that the claimant’s solicitors should have taken the step to serve the Claim Form, i.e. put it in the post, by 13 January 2017 (a Friday) so that it would be deemed served on 17 January 2017 (a Tuesday and the second business day after it was posted).

The claimant’s solicitors responded that in order to comply with the rules on service, it was only necessary for them to take the step to serve – that is, put the Claim Form in the DX or post – by midnight on the day of the deadline for service, i.e. 17 January 2017.  The claimant’s solicitors also relied upon footnotes in the White Book on procedure in support of their argument.

Master McCloud considered the case law put forward by the defendants including the case of Brightside but she distinguished it on the grounds that it related to rule 7.7 and not 7.5.  She stated at paragraph 38 of her judgment:

“(1) the correct approach when determining whether, for the purpose of answering the question “was the Claim Form served during its period of validity?” is to ascertain whether the Claimant has carried out the step require by rule 7.5 within the time provided for doing so.  That would apply equally to cases where time for service has been extended by order (as here) and to cases where the basic 4 or 6 month period of validity applies; and

(2) as to the purpose of the “deemed date” provisions in rule 6.14 those have to be given an interpretation which gives them a meaningful function and in my judgment the deeming provisions operate as a means to ensure that it is clear to the parties what date is to be used for the purpose of calculating such things as the date for service of acknowledgment of service or defence”

She therefore concluded that as the claimant had taken the step of putting the Claim Form in the post by midnight on 17 January 2017, the Claim Form had been validly served.

Another recent case which also involved service of a Claim Form was Higgins & Others -v- ERC Accountants and Business Advisers Limited & Another [2017] EWCH 2190 (Ch). The claim was in respect of tax advice, not personal injury, but the judgment is still highly relevant.

The Claim Form in this case was issued on 19 May 2016.  On 20 July 2016, the claimant’s solicitors sent a copy of the Claim Form to the first defendant’s solicitors.  They stated that the Particulars of Claim would follow within 14 days.  There then followed correspondence between the parties regarding mediation and extensions of time for service of the Claim Form and/or Particulars of Claim.  On 25 August 2016,  the claimant’s solicitors wrote to the defendant’s solicitors stating that they would apply for an extension of time for service of the Claim Form if the defendant was still willing to pursue mediation.  In the absence of an extension of time, the Claim Form would need to be served by 19 September 2016.

The parties agreed a consent order which extended the time for service of the Claim Form to 19 January 2017.  Negotiations stalled and the claimant’s solicitors then agreed another extension of time to 19 March 2017 and an order in those terms was sealed on 24 January 2017.

On 17 March 2017, the claimant’s solicitors sent the Particulars of Claim – but not the Claim Form – by first class post to the first and second defendants’ solicitors.

On 31 March 2017, the second defendant’s solicitors wrote a letter stating that as the Claim Form had not been served, it had expired and that they would therefore apply to strike out the claim.  They then filed an Acknowledgment of Service in those terms and the first defendant’s solicitors did the same on 3 April.  On 31 March, the claimant’s solicitors sent the Claim Form (previously amended to remove a third defendant), Particulars of Claim and response pack.  The defendants then issued applications for strike out.

The claimant’s solicitors argued that the Claim Form had been validly served on 20 July 2016 when it was first sent to the first defendant’s solicitors.

His Honour Judge Pelling QC, sitting in the High Court, concluded that the Claim Form had not been validly served, stating:

“…Cs had not asked any of the defendants or their respective solicitors either in the pre-action protocol letters or by any subsequent communication down to 20 July whether they were able to serve proceedings on the defendant’s solicitors.  That only came much later in the following year.  CPR r.6.7 is entirely clear at to what is required if service is to be effected on a solicitor…”

He went on to say:

“Turning now to the 20 July letters themselves, there is nothing within them that suggests that Cs’ solicitors were attempting to serve the Claim Form under cover of the letter of otherwise.  Although a copy of the Claim Form was sent with each of the letters, it was sent for the limited and specific purpose identified in the letters namely “…For reasons of limitation, we issued proceedings against your client…on 19 May 2016, as a protective measure.  For the avoidance of any doubt on your clients’ part, we enclose a copy of the issued Claim Form…”.”

In addition, Judge Pelling also said that the fact the Claimant’s solicitors had not sent a response pack or court sealed copies of the Claim Form with their letter of 20 July 2016, also indicated that the purpose of sending a copy of the Claim Form on that date was not in fact to serve it.

For those reasons, His Honour Judge Pelling QC ordered that the Claim Form had not been validly served in time and the claim was therefore struck out.

Both of these cases demonstrate the importance for the claimant solicitor of ensuring that service is effected correctly; that is in time and in accordance with the provisions of the CPR.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The Royal College of Obstetricians and Gynaecologists (RCOG) last week (13 September 2017) published new guidelines to help prevent the transmission of Group B Streptococcal (GBS).

 

What is Group B Streptococcal (GBS)?

GBS is one of the many bacteria present in our bodies. It naturally occurs in the digestive system and lower vaginal tract of around 20-40% of women, usually without symptoms or side effects. Although GBS usually does no harm, it can occasionally cause serious infection, most commonly in new-born babies.

 

Group B Streptococcal in new-born babies

There are two types of GBS infection in new-borns: early and late onset.

Early-onset GBS infection– if a baby develops GBS less than 7 days after birth.

Late-onset GBS infection– occurs in babies aged 7 days to 3 months.

 

How is GBS spread?

In cases of early-onset GBS, the bacteria are commonly passed from mother to baby during labour and birth. In pregnancy the GBS organism can infect the amniotic fluid which can lead to neonatal sepsis, pneumonia or meningitis.

The guidelines have identified a number of factors which appear to place women at an increased risk of delivering a baby with GBS. These include:

• Preterm birth (i.e. birth before 37 weeks)
• Prolonged rupture of membranes (i.e. when more than 24 hours has passed between rupture and the onset of labour)
• A previous baby with GBS

The NEW Guidelines

The new guidelines focus on the prevention of early onset GBS and provide guidance on what information should be provided to women, their partners and families.

Whilst the new guidelines do not go as far as other countries (i.e. Italy, Germany, US, Canada etc.) who recommend routine screening for GBS, RCOG now recommends that all women who go into preterm labour, regardless of whether their waters have broken, receive intravenous antibiotics during labour to help prevent the onset of GBS.

Furthermore, all pregnant women should be provided with “appropriate information” about GBS colonisation and the risk of neonatal infection during delivery and after birth.

 

Comment

It is disappointing that the National Screening Committee has concluded that there is no clear evidence to show that routine GBS screening would do more harm than good. A significant number of developed countries routinely offer GBS testing to pregnant women, and studies in the US have shown that upon implementation of universal screening there was a decline in the number of babies being born with early onset GBS.

It is also disappointing that when an expectant mother specifically requests bacteriological screening, they will not necessarily be offered it. Whilst I appreciate that there are cost implications in offering routine screening, if expectant mothers are now going to be given more information about GBS, and the risks involved, will that information include details of the availability of private GBS screening and its cost? The RCOG information leaflet referred to in the guidelines does not appear to inform expectant mothers of that fact. At home GBS testing kits are available for £35-40 or patients can attend a private clinic and pay a similar amount. Provision of this information is arguably even more vital as the guidelines state that mothers who test positive for GBS, after undergoing the test at an accredited laboratory, should be offered IAP (intrapartum antibiotic prophylaxis).

If the NHS is not going to offer routine screening for mothers, on the basis of arguably questionable National Screening Committee evidence, then surely they have a legal duty to advise not only of the treatment options available/not available on the NHS, but those available elsewhere.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*