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Whilst being crucial for clinical negligence practitioners, the High Court decision in EAXB v University Hospitals of Leicester NHS Trust: 4-8 November 2019 and 6th January 2020 serves as another reminder in respect of conduct and the importance of actively engaging in ADR.

In this case, the Claimant secured costs on the indemnity basis because:

  1. The Defendant made no offers at a JSM (which it had initiated) – the Defendant argued that the parties were too far apart to make an offer, but the Claimant successfully argued that this was an inappropriate position.
  2. The Defendant made a late application to introduce further statistics – it was the timing of the application that was the issue.
  3. The Claimant beat her Part 36 offer of 80% in respect of liability by establishing liability in full at Trial.

Point 1 was the most important in securing costs on the indemnity basis and acts as a reminder that parties must actively engage at a JSM and to make concessions/offers – as Kings Chambers comment, JSMs that do not see concessions/offers “are a waste of time, trouble and money”.

Thanks to Kings Chambers for sharing their report of the case: EAXB v University Hospitals of Leicester NHS Trust

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