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£6m plastic surgery award 'could not happen after Jackson reforms'

31 May 2011

The solicitor acting for Penny Johnson, the woman who won £6m in damages at the High Court in the biggest ever award for plastic surgery injuries, has said that he would not have been able to take on the case if the Jackson reforms had been implemented.

Colum Smith, head of litigation at McMillan Williams in Croydon, said the “extremely high-risk” case was funded by conditional fees, backed by insurance.

“Experimental surgery made this a difficult case,” Smith said. He said the firm would not have been able to act for Johnson if success fees were no longer recoverable and limited to 25 per cent of damages.

“If we lost the case, we would have lost too much money,” Smith said. “I make a living doing high-risk cases. I don’t cherry pick.

“The firm lost hundreds of thousands of pounds in costs recently when a case failed.”

Despite the record compensation award, Smith said Johnson would be appealing on the grounds that the judge did not include a value for the shares in her company that she would have sold on her retirement. Smith said this would have increased the award by £3m.

Delivering judgment last week in Johnson v Le Roux Fourie [2011] EWHC 1062 (QB), Mr Justice Foskett said the plastic surgeon admitted liability for Johnson’s injuries. These included a “complete right-sided facial palsy” with inability to close the right eye or to control food when eating on the right side.

“The abnormal facial movement, which is uncontrollable and of which she is acutely self-conscious, amounts to a very considerable cosmetic disability,” he said.

Foskett J said Johnson had also experienced an uncomfortable left breast, including episodes of “sharp pain and intense aching”, resulting from the replacement of breast implants.

He said the disputed issues in the case were the assessment of general damages and claim for loss of earnings.

The court heard that Johnson and her husband set up their own company, BCL, in 1998 and she became “actively engaged” in developing it in 2001.

The company recorded a turnover of more than £2m and gross profit of over £420,000 for the year ending 31 March 2002. The profit rose to £783,000 for the nine months ending 31 December 2002 and to £869,000 for the 12 months to 31 December 2003.

Foskett J said Johnson’s argument was that BCL was “on the verge of substantial expansion and greatly increased profitability”.

He went on: “The defendant’s case is that the claimant’s projections are wholly unrealistic, not as a consequence of deliberate exaggeration on her part, but because she is hopelessly over optimistic as to what could have been achieved. It is submitted that on an objective basis her projections are not tenable.”

Foskett J questioned whether Johnson would have been able to meet the demands of “such a rapid and massive expansion of the business”.

He said the expansion of the business would have required the introduction of management structures and recruiting of staff, but Johnson’s evidence showed the “difficulty in recruiting managers of the requisite calibre”.

Servicing the expanded number of contracts would also have required a “dramatic increase in the number of consultants”.

In particular, Foskett J said Johnson’s claim that her absence for the last four months of 2003 resulted in lost sales of £2.9m, which would have doubled the firm’s turnover in that year, was “plainly unrealistic and serves further to undermine the degree of confidence that can be placed on her projections”.

He awarded her £6.2m, including general damages of £80,000.

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Procedures Police & Prisons Clinical negligence