CLINICAL NEGLIGENCE – DEFENDANTS AT IT AGAIN (3)

CLINICAL NEGLIGENCE – DEFENDANTS AT IT AGAIN (3)

There seems no depths to which those representing defendants in clinical negligence proceedings will not stoop – see my blogs NHS Litigation Authority: How it Misled Parliament and The NHS Lying Authority at it Again.

I have seen a letter from Dental Protection, which is not an insurance company, not a law firm, not an Alternative Business Structure and not a claims management company, but nevertheless appears to be involving itself in potential litigation.

It appears to be a part of the Medical Protection Society Ltd, a company limited by guarantee which is also none of the above.

The letter makes a Calderbank offer on the basis that if the claimant wishes to accept the damages offer then s/he must accept the costs offer and vice versa.

The damages offer is good and one which any claimant would be advised to accept.

The costs offer is derisory, being less than one third of the disbursements alone, which would leave the solicitor with a heavy disbursements bill and no costs.

On the face of it, there is not a problem. The client would have to pay all of the solicitor’s profit costs and all of the shortfall on disbursements and so would reject the package, even though the offer on damages is a good one.

Obviously the offer does not comply with Part 36, and does not purport to do so.

The problem is that the total charge to the client, including base costs, success fee and disbursements, is limited to 25% of the Allowed Damages Pool, that is general damages and past special damages.

Thus the offer is attractive to the client, but hopeless for the lawyer. It is obvious that if costs are called damages and the 25% cap applies, then the solicitor is losing 75% of what are in truth costs.

Using the Underwoods method of restricting the overall charge to 25% of everything, including future special damages, helps only slightly.

Only the success fee is capped by law at 25% of damages; solicitors are free to charge the full balance of unrecovered solicitor and own client costs, even if that wipes out all of the damages.

That is obviously unattractive to clients. Virtually all claimant solicitors are limiting the total charge to the client to 25%, but this cannot work if Dental Protection get away with this sort of thing. Consequently a client protection measure that causes no harm to defendants is being exploited by them in a cynical and harmful way.

Presumably they hope that solicitors will be unable to promise clients that they will keep at least 75% of their damages. This in turn will lead to fewer clients making claims and therefore fewer claims against the members of Dental Protection.

My advice is to issue proceedings in all cases where Dental Protection are on the other side. Once proceedings are issued they cannot deal with the matter.

A solicitor conducting him or herself in the way that Dental Protection is conducting itself is likely to be made the subject of a Wasted Costs Order. Once the Courts and Criminal Justice Act comes into force that results in automatic reporting to the Solicitors Regulations Authority – see my blogs Personal Injury Revolutionized and Wasted Costs and Non-Party Costs Order.

Courts have the power to award costs against non-parties in any event. I trust judges will see this conduct for what it is and order anyone adopting this tactic to pay costs on an indemnity basis, whatever the result of the substantive case.

In the meantime the rump of this Rump Parliament has felt fit to pass a statutory instrument requiring a claimant making a Part 36 offer to show that it was a genuine attempt to settle the case before it gets the Part 36 benefit previously approved by the same Parliament.

See my related blogs:-

INSURERS AT IT AGAIN? (4)

INSURERS AT IT AGAIN (5)

EVER SEEN WORSE TH>N MORE TH>N? – INSURERS AT IT AGAIN (6)

INSURERS AT IT AGAIN (1) AND (2),

MEDICAL DEFENCE UNION: A SUITABLE CASE FOR TREATMENT

SETTLEMENT AGREEMENTS IN PERSONAL INJURY

DIRECT LINE OR DIRECT LYING? – INSURERS AT IT AGAIN (7)