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Change of name, change of pace? What ‘NHS Resolution’ means for your costs.

Lee Dixon 2 FINALThe NHSLA has recently rebranded itself to NHS Resolution. The Health Secretary suggested this was illustrative of a change of focus from, ‘simply defending NHS litigation claims to the early settlement of cases, learning from what goes wrong and the prevention of errors’. Lee Dixon, Senior Costs Draftsman, PIC, looks at the impact of the rebrand.

 I wonder whether the rebrand is a tacit acceptance that the ‘old’ way was the ‘wrong’ way?

However, it takes more than a name change (and probably an expensive one at that) to change an entrenched and longstanding strategy of denial no matter what the cost to the tax payer.

Certainly, since this rebrand was announced I have noticed no change whatsoever to the tactics adopted by some the NHSLA’s panel costs firms. They persist with time wasting offers, unmeritorious objections, cut and paste documents and appear content to take their chances on provisional assessment where, based on our firm, they routinely lose.

You could argue that they are simply doing as they are bidden by the NHSLA. If so, then that makes me wonder whether the NHSLA’s, sorry, NHS Resolution’s definition of ‘resolution’ differs from mine.

As an example, legal documents are important. Even the most routine document is not an empty formality. They serve a purpose and they carry weight. You should treat the documents as you would treat the law, with respect.

So, it is with profound irritation that some legal professionals appear to think that, just because it is ‘costs’ then it is perfectly acceptable to treat the costs document with contempt; illustrated, for example, by a propensity to cut and paste the same arguments into Points of Dispute without regard to their relevance.

The costs process commences with the Bill of Costs. Some say a Bill is unwieldy and dense; others that’s too expensive. All that matters is that it is a Court document that must comply with various rules and practice directions. It is a legal costs pleading and it should be treated with respect.

This document sets out what a solicitor has done, when they did it, why they did it and how long it took. It provides context for CPR 44.4 and sets out the basis for all later arguments on such topics as conduct and proportionality.  This information will form the basis of subsequent negotiations and discussions, and the platform for a later Court assessment.

The Bill is signed by an officer of the Court. It must be as accurate as possible. It must be detailed.  It would clearly be wholly irresponsible for the drafter of a Bill to simply cut and paste entries from other Bills. Each Bill is its own beast relating to a specific case with explicit facts.

Now, let’s turn to Points of Dispute; the next step in the assessment process. These too are regulated by rules and practice directions. I will not quote the rules but suffice it to say, this is also a Court document that should reflect the case to which it relates and the Bill to which it objects.

Yet, in what appears to be a factory approach to preparing these documents we keep seeing the same points copied and pasted across objections by legal professionals who are supposed to be motivated by “resolution”.

These Points of Dispute’s not only fail to achieve this, they run counter to it; teetering on the brink of utter contempt for the whole point of the assessment process

Now, occasionally I can see the purpose. You want to query the retainer as a preliminary issue so you paste the same objection. I don’t like it, but I get it.

Fine.

But if you really are serious in running a tenuous case-specific argument based on, oh, let’s say ‘frontloading’ for example; at least make sure it is relevant to the index matter. At least read the Bill. Read your document. Do it properly. Treat it with respect.

Do not serve a Court document into which it seems little thought has been given; that is essentially a barrage of standard generic copy and paste arguments spread across a Bill in the vain hope some land on their target. Often the key issues are lost in these template documents.

That is not the point of Points of Dispute. It almost makes a mockery of the assessment process and it encourages Claimants, reading the same irrelevant arguments day in and day out, to respond in kind; which benefits no-one. Court resources are already stretched and these documents simply exacerbate the problem.  If Points of Dispute, and their drafters, were properly focused on resolution, I have no doubt more cases would settle.

I would urge the Courts to recognise that whatever the commercial context for these firms’ industrial revolution in the preparation of costs documents; they are not narrowing the issues; they are not saving costs; they are, in fact, increasing them.

I would urge reliance on CPR 47.20(3) that no matter what the eventual outcome, if the Claimant must face the same generic objections time after time; which fail to offer any real hope for resolution; then the Defendant should pay the costs of the assessment process or most certainly should not profit from it.

I would urge the NHS costs providers to focus their objections, to avoid throwing in template issues that only cause irritation, to recognise that the old way WAS the wrong way; and to fully embrace the optimistic future of resolution.

The infinite monkey theorem suggests that given enough time a monkey will eventually complete the works of Shakespeare. I doubt it, but at the moment it will probably prepare a set of NHSLA approved points of dispute.


Lee Dixon is a Senior Costs Draftsman at Partners in Costs, PIC. To contact him, please click here.