Head of NHS Resolution says claimant's refuse to mediate!!

It was really no great surprise when the head of NHS Resolution yesterday blamed Claimant lawyers for the small number of claims which have been successfully mediated since the NHS Litigation Authority changed its name in April 2017. 

This change followed an announcement from Health Secretary Jeremy Hunt earlier this year –

“I can inform the House that the NHS Litigation Authority will radically change its focus from simply defending NHS litigation claims to the early settlement of cases, learning from what goes wrong and the prevention of errors. As part of those changes, it will change its name to NHS Resolution.”

And to give credit where it is due the name has in fact changed. I recently discussed the announcement with a group of claimant lawyers who were unanimously of the view the nothing much else had changed.

Yesterday’s assertion was made to the House of Commons Public Accounts Committee by Helen Vernon. She told the committee that few cases had been referred to mediation and shamelessly attributed this to the reluctance of Claimant lawyers to engage in the process. 

https://www.lawgazette.co.uk/news/claimant-lawyers-resisting-mediation-nhs-chief-tells-mps/5063258.article

I have litigated hundreds of medical negligence cases and have never refused mediation. Neither do I know any other lawyers who have refused. What Ms Vernon overlooked is that the courts have introduced a huge incentive on parties to resolve claims in this way. There is a power to impose costs sanctions on any party who unreasonably refuses an offer to mediate. Most experienced lawyers include a paragraph in their initial letter of claim offering to refer the case to mediation. This is routinely refused or even ignored. The reason that the NHS give for such refusal is that the matter is disputed – even though the vast majority end up being settled.

The last Clinical Negligence case that I dealt with at my last firm was listed for trial in February 2017. We had made an early offer to settle and in 2016 proposed a Joint Settlement Meeting which is designed to resolve disputes without trial. There was no response until less than 2 weeks before trial when the case settled on terms that would have been accepted 2 years earlier. The costs were through the roof by then.

Interestingly the meeting was to discuss legal costs in clinical negligence cases. As Law Society Gazette’s John Hyde tweeted –

If claimant representatives had been there they would certainly have pointed out what a ludicrous statement Ms Vernon made. Claimant lawyers are under a professional duty to achieve the best result for their client. This would never included a refusal to discuss resolution.

I wrote about this in January 2016 and quoted retired judge Sir Henry Brooke in a case where the NHS were penalised for refusing to mediate –

“If, by way of illustration, the taxpayer had to pay £50,000 in each case more than he would have had to pay if those representing the NHSLA had behaved prudently and reasonably, that would mean that £100,000 of public money went down the drain for no real purpose. Oh dear.”

http://thestevecornforthblog.blogspot.co.uk/2016/01/spiralling-cost-of-medical-negligence.html

Costs in clinical negligence cases are a burden on the tax payer. Resolution of claims should be a priority. 

It takes two to mediate! It is unhelpful for a manager of NHS Resolution to blame one set of lawyers for this. Especially or possibly because those lawyers were not there to set the record straight.

www.stevecornforth.com