Mesh: Claims slashed
A law firm acting for hundreds of women who claim to have been harmed by vaginal mesh implant surgery has had its costs slashed by an unimpressed judge.
Judge Jennifer James in the Senior Courts Costs Office also questioned Fortitude Law’s claims about how successful it was in the litigation.
Fortitude Law, of Haywards Heath in Sussex, was shut in May by the Solicitors Regulation Authority because there was “reason to suspect dishonesty” on the part of owner Darren Hanison.
Campaign group Sling the Mesh said Mr Hanison was representing many of its members and that the move had left them “understandably angry and distraught”.
Judge James’s ruling on preliminary issues in the detailed assessment was handed down in June – following a hearing that took place before the firm was shut down – but was only published yesterday.
She stressed that the question of whether Fortitude Law had engaged in litigation misconduct “has yet to be aired let alone decided”. She said the firm acted for hundreds of claimants.
But her decision in HD v Northern Devon Healthcare NHS Trust [2023] EWHC 2118 (SCCO) – one of six associated cases – would not have augured well for the firm.
At one point, she cited the firm’s website as stating: “Fortitude Law has already helped, and is currently helping, many UK women to secure compensation of £100,000 or more in respect of negligent mesh implantation surgery – and our unique approach means that the individuals we act for receive compensation from the insurance which the private medical consultants, private hospitals and NHS trusts are required to have in place.”
The judge said: “It is not clear to me what ‘unique approach’ Fortitude Law is claiming, but as yet I have not seen a single claim that realised even half of £100,000 despite claims pitched well in excess of that sum and (in the case of HL) in excess of three quarters of a million pounds if one includes PSLA.” HL’s case settled for £30,000.
A claims-handling agreement governed what needed to be in letters of claims in vaginal mesh cases but the judge said she had “never seen professionally-drafted letters of claim like the ones produced by Fortitude Law”.
There was “unnecessarily and unreasonably prolix medical background” in each one as well as excessive citations from leading authorities.
“It is in my view doubtful as to whether the solicitors at [DAC Beachcroft] tasked with dealing with these cases, benefited greatly from three pages largely comprising quotations from [the Supreme Court ruling in] Montgomery.”
Judge James went on: “The overwhelming impression is that Fortitude Law has drafted up a precedent section under each heading and that the fee-earners tasked with drafting the letters of claim have had access to those precedent sections.
“Some have been tailored to a considerable extent, e.g. the medical histories (but against a background of many hours spent on sorting and indexing the medical records that should not have taken a great deal of time). Others appear to be identical, or near-identical, across all six letters.”
While it made sense to use precedent sections for parts that would be similar for each claim, the large amounts of time claimed for drafting the individual letters were therefore “neither reasonable nor proportionate”. She made similar criticisms of letters of response too.
In the case of HD, the judge said she could not see that the letter of claim could have “taken anything like” the 62 hours claimed. She allowed 15 and reduced the 66 hours claimed for letters of response to 10.
Judge James went into “granular detail” on the schedules of loss, which she said would assist “going forward with line-item assessments and on any misconduct arguments that there may be”.
This exercise identified “very striking discrepancies across the schedules… many of which appear to have no logical explanation”.
“I do not find the schedules to have been drafted systematically or with the care and attention to be expected of a boutique clin neg firm specialising in vaginal mesh claims, frankly the six I have seen are all over the place.
“It follows that I am in considerable doubt as to the times claimed for these schedules; the times may well have been spent but based upon the above they were not reasonably spent. Much time was thrown away on calculations based on the wrong premises, plus arithmetical errors and other oversights.”
In relation to future medical treatment, Judge James said “it appears that Fortitude Law have simply overlooked” some potentially substantial claims.
She was also critical of Fortitude’s main medical expert, Dr Wael Agur, finding “so much common material” across the “many” reports he produced. This meant the fee charged for each one was too high.
“With this level of involvement/instruction and making use of a precedent as he clearly has (and as was clearly reasonable to have done), Dr Agur ought to have been able to make some economies of scale. I do not see that Dr Agur’s fee in HD reflects that very obvious fact.”
Of the 33 pages in his report on HD, 17 were exactly the same as in the other reports. “The details of Dr Agur’s qualifications and experience are about as long as the entire report (in fact, given the format, probably longer if one were to undertake a word count on them).
“Of what remains, only the cover sheet, intro and issues and current condition (in effect the history taken from Mrs HD over the telephone) are more unique than not. That totals seven pages of the 33 (21%) and even within those seven pages there is a lot of common ground or else straightforward admin material.”
My wife was a client of fortitude law,but we understood this was shut down by the SRA. We have been trying to contact other solicitors but with no sucsess due to the 3 years time limit. We put in a claim around 2015 for viginal net inplant, but this was sat on by fortitude law until early feb 2023.Beachcroft have extended this to march 2024.But solicitors are saying that it does not give them much time.We have all the fortitude law papers also all of the medical records when needed buy a solictor