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Clinical negligence claims 'entirely suitable for ADR'

26 March 2012

Clinical negligence disputes are "entirely suitable" for alternative dispute resolution mechanisms, Lord Justice Jackson has repeated in an attack against sceptics last week.

In the twelfth lecture in his implementation programme, which focused on clinical negligence, Jackson LJ regretted that “among some solicitors and counsel there is still a wall of opposition to mediation in clinical negligence cases where liability and/or causation are in dispute”.

The judge in charge of civil litigation cost reforms accepted “attitudes have been steadily changing over time” but said “a firm steer will be required both in CPD training and in judicial training”.

Jackson LJ’s comments echoed earlier recommendations in his final report, published in January 2010, that there should be greater use of ADR, “in particular mediation, as a means of resolving civil disputes at proportionate cost”.

Rejecting the suggestion that personal injury claims, including clinical negligence claims, were unsuitable for ADR, he said: “Experience suggests that such claims are entirely suitable for ADR, even in cases where liability and/or causation are in issue.”

The senior judge’s call on lawyers to embrace mediation comes against a backdrop of ongoing concern that too many meritorious clinical negligence claims appear to only settle until after the issue of proceedings.

Sir Rupert made clear that mediation should not be used as “a means of extracting cash in ‘try on’ claims or as a means of achieving ‘nuisance value’ settlements”.

Claimants abusing the mediation process in this way would not be protected by the new rules on qualified one-way cost shifting (QOCS).

He also expressed concern that some of his recommendations had not been acted on.

These include the implementation of the NHS Redress Act 2006, which is awaiting secondary legislation.

Jackson LJ was particularly pessimistic about an alternative scheme for the swift resolution of low-value claims after lack of agreement between interest groups pushed an early draft in a dead end (see table below).

“Without wishing to sound unduly pessimistic, I must confess to some doubt as to what will emerge from these interminable discussions,” he said.

Similarly, the proposal to extend the RTA portal to such claims, while to be welcome in principle, would only affect claims where liability is admitted.

Categorised in:

Procedures Costs ADR Clinical negligence