A brief comment on the National Health Service Litigation Authority Annual Report 2014-15

This comment appears at p19 of the recently published annual report from the NHSLA:

“We have always sought to resolve claims without litigation, and we continue to use a range of alternative dispute resolution options in appropriate cases, including formal mediation.”

A laudable aim, but the reality is far from what happens in practice. How many claimants and their lawyers have come across this scenario:

  1. Claim notified after supportive expert evidence obtained
  2. Denial received
  3. Offer of mediation to the NHSLA
  4. Offer of mediation rejected because liability is denied.
  5. Court proceedings started
  6. Offer of settlement from the NHSLA.

Here at Price Slater Gawne our own experience is that a significant number of the cases in which we receive a denial from the NHS are settled by the NHS shortly after we have started court action. A cynical view is that the NHSLA has adopted a policy to force Claimants to issue in order to test their mettle. This does not sit comfortably with the commitment expressed on the same page of the annual report that:

“We remain committed to achieving a fair resolution for NHS patients, staff and visitors who suffer negligent harm.”

A policy of forcing Claimants to start court action simply increases the costs incurred by the NHSLA (not only the claimant’s costs but also those of their own legal advisors). This increase in costs is exacerbated by the massive increase in Court fees earlier this year as those fees end up being paid by the NHSLA when a case is finally settled.

Mediation produces earlier resolution and reduces cost. At Price Slater Gawne we offer mediation in every letter of claim we send to the NHS. The NHSLA says that it uses mediation and ADR, so we would expect a positive response to our approach. You will not be surprised to learn that out of all of the offers of mediation put forward, in the many letters of claim we have sent we have had only 1 mediation under the NHSLA scheme, and even that came after we had been compelled to start court action.

Back to the coalface.

David Dawson and Mark Slater