Following instructions from NHS Resolution, Clyde & Co has successfully recovered NHS costs after beating a Part 36 offer at trial.
The claim arose out of the tragic circumstances surrounding the death of the Claimant's child within an hour of his birth. Liability was admitted for the death by the Defendant hospital Trust so the only outstanding issue was the level of damages.
The Claimant alleged from the outset that she had suffered psychiatric injury, although until the trial she chose not to obtain or rely upon expert evidence in support of her alleged injuries. The Claimant's legal team eventually attempted to introduce psychiatric expert evidence without the Court's permission, including making an Application for permission just 10 days before trial. At the trial, the Judge was extremely critical of the conduct of the Claimant's solicitors, noting that the lateness of their Application was unacceptable, was not in line with the overriding objective, and denied the Defendant the opportunity to know what case it was being asked to meet. The Judge concluded that if the Claimant had acted appropriately throughout, the case may well have settled much earlier, and this would have resulted in significant savings in legal costs.
It had always been accepted by the Defendant that the Claimant was entitled to a statutory bereavement award, but that in the absence of any supporting expert evidence, the Claimant should not be entitled to recover an additional psychiatric award in general damages. However, in the assessment of damages, the Court found that whilst the Claimant did not have permission to rely on expert evidence, this did not prevent the Court from making a general damages award, based on the Claimant's witness evidence and medical records, to reflect the Claimant's pain and suffering that went over and above the level of grief that the bereavement award was intended to compensate for.
Clyde & Co attempted to achieve a fair resolution of this matter at the earliest possible stage in proceedings, in accordance with NHSR strategy. A fair and reasonable Part 36 offer was made by the Trust, based on the available evidence, but this was rejected by the Claimant who chose to fight the matter to trial. Ultimately, at trial, the Judge's assessment of damages was lower than the offer that had been made, and accordingly, the Defendant was entitled to recover its costs from the date of expiry of its offer.
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