Delaying tactics favour no one

Defence solicitors are being accused of dragging out hearings which can lead to extra costs, reports Roger Pearson. Huge and unnecessary costs which are ultimately paid by the public purse are being racked up by protracted litigation in cases that are destined to settle but in which defendants, often for tactical reasons, delay settlement.

A recent personal injury settlement in the High Court is a classic example of this practice. The case, Lucey & ors v Swindon Health Authority & Ministry of Defence, ended on the first morning of the hearing with a settlement in favour of the plaintiffs of £420,000, although an initial settlement offer of £150,000 had been made three years previously.

Had the £420,000 settlement offer been made earlier, however, as specialist personal injury solicitor John Czul of Chippenham-based Jan Anton Czul believes it should have been, a considerable amount of money could have been saved.

Czul estimates that the tactics adopted by the defendants left them facing an additional £30,000 to £40,000 in legal costs. And as one of the defendants was the Ministry of Defence, that money came from the public purse.

But Czul says what happened in this case is far from uncommon. In the field of medical negligence litigation, in particular, he says there is an initial ’knee-jerk reaction’ by defendants against allegations of medical negligence which can deter an early settlement.

Czul believes the case of Christine Lucey, who died in May 1995, six years after cervical cancer was diagnosed, is one which in terms of the emotional and legal costs involved demands a review of tactics in this area of litigation.

Mrs Lucey gave birth by caesarean section in 1988 in a military hospital where, it was claimed, her cancer should have been diagnosed. Diagnosis at that point, followed by immediate treatment would, it is estimated, have given her a greater than 90 per cent chance of survival.

However, it was another year before her cancer was diagnosed and, after chemotherapy, radiotherapy and a number of operations, she died in 1995. She left behind a husband and a daughter, who is now 10, to carry on the fight for compensation.

The original negligence action against the MoD, as the manager of the hospital where it is said the cancer diagnosis should have been made in 1988, was launched by Mrs Lucey in May 1994.

Czul thinks the final outcome of the case was a good one for his clients. Initially the claim had been valued at nearly £548,000, but a number of factors reduced it to the final settlement figure of £420,000.

But he says the offer should have been made far sooner. ’Unfortunately the present system does not encourage early settlement. That is a major problem,’ says Czul. ’There is an initial knee-jerk reaction to allegations of medical negligence and that can entrench the parties early on.’

He adds: ’As a plaintiff you are fighting bureaucracy, in this case a government department, and it can be difficult to get the human issues across in those circumstances. Invariably I feel that those representing defendants in such cases lose sight of the human issues.’

He says that in order to see a case like this through to a successful conclusion it is vital not to be intimidated by the defendants, to assemble a strong team and to ensure that all claims valuation is indisputable.

In this case Czul instructed medical negligence specialist counsel David Hart, and called in Verne-Anne Convey as the expert witness.