Interlocutory application in a medical negligence case

The Plaintiff, a legally aided person, claimed against the Defendant for damages by reason of medical negligence. The Defendant did not file an expert report with the Defence and this caused the Plaintiff’s solicitors to take out the application against the Defendant.

Initially through correspondence, the Plaintiff’s solicitors demanded the Defendant serve their expert report within unreasonable time limits. The Defendant had on several occasions informed the Plaintiff’s solicitors that they were in the process of finalising the expert report and would deliver the report once it was ready. However, within six weeks of the filing of the Defence, the Plaintiff’s solicitors took out a summons against the Defendant requesting the delivery of the expert report. The Defendant then issued a summons to protect their position which was eventually consolidated with the Plaintiff’s summons.

The Plaintiff’s solicitors relied on paragraph 67(10) of the Practice Directions 18.1 to support their position on the filing of the Defendant’s expert report. The relevant part of the Practice Direction says a copy of the expert report in medical negligence cases should be served together with the Defence if it is available, and in so far as this is practicable.

The High Court Judge pointed out that the Plaintiff’s solicitors either ignored or overlooked the wording of the Practice Direction. It does not prescribe an expert report be served together with the Defence, but only requires it be served as soon as practicable. In any event, the spirit and purpose of the Practice Direction are to facilitate an amicable resolution of the dispute, and to discourage parties from engaging in unnecessary interlocutory applications which only result in wastage of costs.

The Defendant’s expert report was in fact served before the hearing of the summonses and within two months of the filing of the Defence, a shorter period than that needed for the Plaintiff to file their own expert report. At the hearing of the two summonses, the Master criticised the taking out of the application as premature and that it was wasteful on the Plaintiff’s part. The Plaintiff’s solicitors were not awarded costs on their summons and that there was to be no legal aid taxation of costs.

The Plaintiff’s solicitors sought to argue that the Master was wrong in law to order no legal aid taxation of costs. The High Court Judge, however, agreed entirely with the Master’s decision and criticised the Plaintiff’s solicitors as not acting in the interests of their client. It was found that all along the Plaintiff’s solicitors demonstrated a hostile manner towards the Defendant and the summons taken out by them was a complete waste of effort and costs.

The appeal application to the High Court Judge was dismissed accordingly and was again criticised as without merits. Having considered the attitude of the Plaintiff’s solicitors, the Judge made a wasted costs order against the Plaintiff’s solicitors in respect of the appeal application. He further made an order that there be no legal aid taxation of the costs of the appeal, which means the Plaintiff’s solicitors would bear their own costs and that no costs would be paid out of the public funds.

Further to this decision, the Plaintiff’s solicitors took out another application to seek leave to appeal to the Court of Appeal against the wasted costs order and the orders denying legal aid taxation (HCMP 1113/2011). The Plaintiff’s solicitors argued the relevant statue mandates legal aid taxation in all instances and thus, neither the Master nor the Judge had jurisdiction to make orders denying the same. The Court of Appeal considered there is good reason in the general interests of justice to have the matter heard and leave to appeal to the Court of Appeal was granted.

This case serves as a warning that the court is quite ready to penalise parties and/or their lawyers in engaging in wasteful interlocutory litigation.

The orders made are now under appeal and it will be interesting to see whether the courts are vested with power to make orders of “no Legal Aid taxation” when the Plaintiff’s solicitors’ conduct is called into question.