2 August 2018Print This Post

Judge orders indemnity costs against NHS trust for outrageous “bimbling”

Tablets: Lithium had caused severe toxicity

The High Court has hammered both sides in a medical negligence case involving a mentally ill woman for outrageous “bimbling”.

His Honour Judge Gore QC, sitting as a High Court judge, said the word – which means to move at a leisurely pace – was used by one of his daughters.

In Holmes v West London Mental Health NHS Trust, the claimant was prescribed lithium from 1994 to 2012. She became ill and was admitted to hospital in 2012.

Tests showed that she was suffering from severe lithium toxicity and she was admitted to intensive care. She remained in hospital for two months.

The claim was not issued until February 2015. “Why are there such delays in initiating claims I ask, not rhetorically?” HHJ Gore said.

“Service was effected on 12 June 2015 – on the last day, therefore, of the validity of the claim form for service, but it took another six months to serve particulars of claim then another seven months, from that, for the service of a defence.

“I have heard no evidence or argument about the reasons for all of this, but my provisional view is that such ‘bimbling’, as one of my daughters calls it, is outrageous.”

The defendant trust bore the brunt of the judge’s outrage, culminating in the award of indemnity costs.

He said it was “highly relevant” that four years before the defence was filed, denying the claim in its entirety, the trust produced a ‘serious untoward incident report’ highly critical of the claimant’s care.

Delivering judgment on costs – which was published by the claimant’s law firm, Leigh Day – HHJ Gore said the claimants made a part 36 offer, on the basis that they recovered 95% of the full liability value of the claim, in February 2017.

Later that month, a case management conference was held where, HHJ Gore noted “with utter dismay”, a trial window was set for the case between October 2018 and April 2019 – seven years after the relevant events.

“To compound the distress that this undoubtedly caused to the claimant, she remains a patient of the defendants.” The defendants rejected the part 36 offer the following month.

HHJ Gore said preparation for the trial “dawdled on”, and the defendants did not “even condescend to respond to repeated invitations to engage in ADR”, with the result that the claimants issued an application in May 2018.

“It was, in my judgment, benign and charitable. It simply sought compliance with the case management needs of this case.

“I am surprised that it did not either seek to strike out the defence for non-compliance or at the very least seek an unless order that could have led to such an outcome.”

HHJ Gore rejected all the defendant’s submissions, accusing it of “drip feeding” offers before its eventual “capitulation” to the claimant’s offer to settle for 95% of the value of the claim, 15 months after the part 36 offer was made.

“That is not, in my judgment, the hallmark of a reasonably conducted defence based on reliable evidence with reasonable prospects of success.”

The judge said that the only way for the defendants to avoid paying indemnity costs was to have made their own part 36 offer, offering to pay 95% of the claim so long as standard costs were recoverable, which they had not done.

HHJ Gore said that “for all of the reasons that I have described and deprecated earlier in this judgment, conduct here was not ‘the norm’”.

The judge concluded: “And this therefore is a case in which I am satisfied in accordance with the wide discretion that I have as to costs, that the burden of proof should be shifted by ordering that the costs in this case should be paid by the defendant from the end of the relevant period for acceptance of the Part 36 offer on an indemnity basis.”

By Nick Hilborne


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