A Prescribed Remedy

John Hodgkinson reflects on the latest ‘cures’ for long-suffering ATE providers.

Anyone visiting a medical practitioner with troubling symptoms will want to know that there is a prescribed remedy for their ailment. Sadly, as life demonstrates, that is not always possible or, even worse, an incorrect remedy might be applied. Often this can leave an individual, and those around them, with a nightmare scenario of ongoing or worsening consequences.

We like to trust professionals, those who have trained long and hard to reach their recognised status and who ‘have seen it all before’. The air of reassuring competence encourages the placing of trust in them. Regretfully, even professionals can get things wrong, or our bodies conspire against us to react other than expected.

Questions arise: What went wrong; why, and; is someone responsible? Compensation may be available, though the need for answers frequently drives individuals to seek legal redress.

The amazing intricacy of human beings can result in unexpected complications.

Our system of law provides a ‘prescribed remedy’ for those facing the challenges of resolving these complications. Obtaining help from other professionals, legal and medical, can be daunting for most individuals. The expenses of doing so may make this prohibitive.

If one has a multiplicity of symptoms, in absence of free prescriptions, the costs of each prescribed remedy can mount up so that only the well-off can afford to get well. The same applies to each component of pursing a legal remedy. If it costs the individual, will they be put off?

Readers of this article will be very familiar with the severe restrictions on access to ‘free’ help. In the light of this, it might have been considered reassuring that Parliament retained some limited protection in the form of the Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (No 2) Regulations 2013 (‘the 2013 Regulations’).

Under these Regulations some premiums may be recoverable: in ‘clinical negligence proceedings of a prescribed description’ and relating to a policy ‘of a prescribed description’.

The recovery is limited (it does not cover minor ‘ailments’ where damages are less than £1,000) and is expressly for ‘that part of the premium which relates to the risk of incurring liability to pay for an expert report or reports relating to liability or causation in respect of clinical negligence in connection with the proceedings’.

Ironically, the very parties charged with the responsibility for our care, and having got it wrong, are those fighting against recovery of the above premiums.

Ongoing Battles

Examples of this ongoing battle are constantly battling their way through Courts. One of the latest is Mitchell v Gilling-Smith [2017] EWHC B18 (Costs) (21 August 2017). Heard by Master Leonard as long ago as 6 June 2017, this costs case provides a prescribed remedy for at least some of the ills facing such claims.

The Claimant had succeeded in her claim, but the fight was not over. Not quite a ‘remission’ but certainly prolonging the agony.

The full judgment is worth a read but Master Leonard, perhaps in acknowledgment of preventing repetition of arguments against the recovering of ‘prescribed’ clinical negligence premiums, use his judgment to articulate (or ‘prescribe’) remedies for the common ills of:

  • Whether the premium was reasonably incurred.
  • Whether the amount was reasonable

The precise nature of these ‘remedies’ warrant a careful case by case application to the facts but go a long way to enforcing a view that very significant ‘ills’ will need to be established if a premium is to suffer due to proportionality, reasonableness (amount) or reasonably incurred at all.

At Victoria Square Chambers, we are happy to provide a consultation on the challenges you face and offer the best remedy possible for your predicament.


johnJohn Hodgkinson is a Solicitor & Senior Advocate at Victoria Square Chambers. 

To contact him regarding any of the matters raised in his blog, please click here.

 


Victoria Square Chambers is a specialist national costs practice. It’s our mission to add value and opportunity to your business through Costs Advocacy, Costs Advice and Costs Mediation through our leading experts and advisers. To contact our knowledgeable team, please click here.

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