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A claimant who was prescribed lithium has obtained judgment in her favour and indemnity costs against the defendant trust who accepted her offer more than 15 months after it was made.  The court found that the defendant’s conduct was “outside the norm”.

You can read the full judgment of Holmes v West London Mental Health Trust (2018).

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.

In February 2015 she issued a claim against the health trust claiming damages for clinical negligence.

Between January 2017 and April 2017 the health trust made various offers to settle her claim which she rejected.  In February 2017 the claimant offered to settle the claim at 95% of its full value, an offer that was rejected by the trust in March 2017.

The trust then failed to respond to invitations to alternative dispute resolution, and its witness statements, and expert reports were served late. They failed to agree to agendas required for joint experts meeting, and failed to respond to requests for mediation.

The trust finally accepted the claimant’s offer, which had been originally made in February 2017, on 30 May 2018, but on the condition that her legal costs were awarded on the standard basis (i.e. the claimant had to show that her costs were reasonable). This offer was disputed by the claimant as the defendant took 15 months to accept the offer, and as a result significant costs were incurred.

At a hearing in the Queen’s Bench Division of the High Court, His Honour Judge Gore QC dismissed the trust’s arguments. The court noted that the litigation had been very slow and it was difficult to characterise the defendant’s conduct as reasonable when it accepted the claimant’s offer one year after it had been made. It had defended the case badly…. and “the conduct here was not ‘the norm’.  The court further stated that,  ‘The costs to be paid by the end of the relevant period for the acceptance of the Pt.36 offer would be on the indemnity basis and judgment for the claimant was entered in 95% of the value of the claim to be assessed.’ In other words, the burden of proving that the costs are unreasonable has been shifted to the Defendant.

This case highlights the risks litigants face if they pursue a hopeless case and refuse ADR/Mediation or reasonable offers to resolve claims. This judgment works both ways and so a Claimant who acted in the same way might well face the same penalties. Note to file: Mediate!