Keoghs has recently concluded a long-running FND case where the claimant sought over £5,000,000 in damages but received only £60,000 plus £1,000 costs. In the latest extract from our FND casebook, we examine the key elements of the case and, in particular, the impact a Part 36 offer can have on the defence of a claim.
The case involved a routine road traffic accident where the defendant drove into the rear of the claimant’s stationary vehicle, resulting in minimal damage. The accident happened in October 2017, with a CNF submitted in November alleging that the claimant had suffered soft tissue injuries as a result of the collision, with full details to follow in the medical report.
An initial GP report prepared two months post-accident was unremarkable. It diagnosed soft tissue injuries to the neck, right shoulder and lower back with an expected recovery period of 10 months post-accident.
The claimant’s presentation was somewhat different. When examined by his orthopaedic expert around 18 months after the accident he described severe left-sided pain and weakness and told the expert that he had made extensive use of a walking stick to mobilise. He claimed that he was unable to work and needed significant care and assistance from his wife. The expert was unable to reconcile the claimant’s symptoms with an orthopaedic injury and noted that the initial complaint had been to the right side, but the current issues described were to the left. A psychiatric explanation was thought to be most likely.
A review of medical records indicated that the claimant was under the care of an NHS neurologist who initially diagnosed stiff person syndrome and subsequently functional neurological disorder (FND).
Despite that diagnosis (and allegedly developing additional symptoms in the form of intermittent mutism and loss of consciousness), the claimant did not go on to serve evidence from a neurologist or neuropsychiatrist.
The defendant’s experts (neurology, neuropsychiatry, orthopaedic and pain management) were unable to explain the claimant’s symptoms other than in terms of FND or malingering, but without positive evidence of the latter, a diagnosis of FND was favoured. Extensive surveillance was undertaken which provided some evidence of malingering. Combined with inconsistencies in the claimant’s evidence, this led to the conclusion that the claim was not genuine. The defendant’s experts were never asked to consider this however, as their evidence was not served due to the way the case developed procedurally.
Matters were complicated by the claimant being represented by multiple solicitors during the litigation and spending a significant period as a litigant in person.
He missed numerous court deadlines and, as a result, the defendant applied to strike out his claim. The court gave him significant latitude, perhaps because he had multiple episodes of ‘losing consciousness’ during the hearing, resulting in an adjournment and the issues being decided on written submissions. His claim was allowed to proceed, with the court declining to strike out his updated schedule of loss which sought over £5,000,000 in damages. Fortunately, a revised timetable was imposed with clearly defined sanctions and, when the claimant failed to serve any further medical evidence, he was left in a position where he had only his GP and orthopaedic reports, neither of which supported a claim for FND.
Before proceedings were issued, our insurer client had made a strong Part 36 offer of £60,000 with a view to resolving the claim at an early stage. Negotiations with the claimant’s latest solicitors resulted in a settlement which saw the claimant receive damages of £60,000 and a contribution to his legal costs of £1,000.
This settlement was highly favourable given that, despite obvious concerns regarding the claim, the claimant’s medical records were replete with references to FND.
Early, well-pitched offers in cases where FND may be an issue are often worth considering. A surprising number of such offers are accepted, leading to early and economic resolution. Where an offer is not accepted it can provide leverage later in the case if there is evidence in the defendant’s favour.
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