An appeal of a Regional Costs Judge’s decision to reduce a costs claim of over £42,000 to £6,005 has been successfully dismissed. The underlying claim for damages arose out of alleged negligent laser hair removal. The costs dispute was whether the claim should have proceeded under the PL protocol or the clinical negligence protocol.
The claimant attended the defendant’s premises several times for the cosmetic procedure of laser hair removal. On the last visit, the settings on the laser machine were too high and the claimant suffered from skin damage with later scarring. The claimant was treated by a person describing herself as a ‘therapist’ and a consent form was signed which made reference to the treatment being carried out under medical supervision. The claim settled without any proceedings being commenced in the sum of £6,510.
Original decision
Regional Costs Judge Jenkinson identified a ‘continuum’ when considering beauty treatments; the most basic treatments such as hair colouring which goes wrong to ophthalmic laser surgery. At the latter extreme although the treatment has a cosmetic element, any claim arising would be for clinical negligence. The present claim fell towards the basic end and therefore PL protocol fixed recoverable costs applied (£6,005 rather than £42,000). The following features did not justify the clinical negligence protocol:
- Nature of the services provided. Noting that (i) the Care Quality Commission no longer regulates laser hair removal and (ii) the Medical Devices Regulations 2002 describe laser equipment within the meaning of those regulations but are very wide also including walking sticks, condoms and bandages.
- Nature of the proposed The operatives of the laser treatment are not ‘health professionals’.
Appeal
His Honour Judge Wood QC dismissed the claimant’s appeal and made the following points:
- Any distinction between clinical and medical services is not justified; the definitions of ‘health professional’ and ‘healthcare’ far more indicative.
- The clinical negligence protocol does not refer to ‘cosmetic’ treatment; ‘what is essentially cosmetic treatment does not become specialist medical or clinical provision merely because the technology is advanced’.
What this means
This decision serves as a useful indication that the courts remain reluctant to widen attempts to avoid the scope of fixed recoverable costs schemes. With the further extension of fixed recoverable costs on the horizon, as well as a current consultation on fixed recoverable costs for clinical negligence claims currently open for responses, this decision emphasises the importance of clarity of any such schemes.
Michael White, Head of Casualty Claims at Zurich Insurance Plc commented that ‘We all have a responsibility as stakeholders to ensure a fair and consistent system that balances the interests of the parties. Any extension of fixed recoverable costs must be carefully drafted so that litigation seeking to test the boundaries of the scheme is avoided wherever possible. This case demonstrates our concern that attempts are all too often made to increase the amount of costs that can be recovered in straightforward cases that were intended to be included within the fixed regime, but we are pleased with this outcome and encouraged by the court’s robust stance’.
The successful defendant was represented by Lauren Allman of DAC Beachcroft and Roger Mallalieu QC.
For more information of advice, please contact one of our experts in our Costs Team
