This case study demonstrates just how flawed, unaccountable and unnecessarily expensive the litigation process can be, particularly for insurance companies. It also demonstrates how a proactive insurance company can not only save considerable sums of money but can also help to deliver fair outcomes that are acceptable to all those involved.  The following links show how to avoid both costly litigation and considerable amounts of time:

Having undergone routine cataract surgery at his local Bromswich Eye Hospital, Bernard notices some funny looking things in his right eye and a consultant ophthalmologist, Dr. Popeye, diagnoses a detached retina. Bernard undergoes an immediate operation which in the short term proves to be successful. However, his ophthalmic aftercare leaves something to be desired. Bernard is not properly advised by a senior surgical member of Popeye’s team who fails to warn him about the risk of postoperative complications. This particular surgeon also very ill-advisedly confirms that it is “quite okay” for him to go away on holiday only a fortnight or so after the operation. Bernard is repeatedly assured that following his operation he has 6:6 vision and that “there is nothing to worry about”.

A few days later whilst Bernard is visiting the town of Witherington, a few hundred miles away, the retina detaches again. Thinking that there is something wrong but not really knowing what, and not for one minute suspecting another detached retina, he goes to the casualty department at the Witherington General Hospital. Here he is given what his subsequently appointed medical expert, Dr Slick, subsequently identifies as “palpably bad and grossly negligent treatment and advice”. The net effect is that the further operation that Bernard needs is deferred for some days.

The second operation that is ultimately carried out by one of Dr. Popeye’s consultant colleagues back in Bromswich is successful. A sequence of tests gives consistent visual acuities of 6:9 which confirmed that fortunately, his vision has only deteriorated a little.

Understanding full well that at best, he has only a modest claim, Bernard consults a highly recommended solicitor, Mr. Jones of Failsafe and Co who markets himself as being solid and dependable, “a safe pair of hands”. When they first meet Jones assures Bernard that he is an accomplished and realistic professional, that he will act appropriately at all times and that he will not make any unwarranted or unfounded claims. A no-win no-fee agreement which is underwritten by a legal insurance policy is signed and Bernard is advised, correctly as it turns out, that win or lose he will not be expected to pay anything towards his legal costs. When Bernard asks what his claim might be worth, Jones is reticent and says that he cannot advise until he has had sight of an expert’s report. Jones does, however, assure Bernard that he has taken “careful note” of his request and that as part of any settlement, both Dr. Popeye and the two health authorities concerned will give him full written apologies. When Bernard tells him that he wants justice and that there is a principle at stake Jones coos sympathetically.

Jones’ subsequent lengthy periodic reports to the insurance company are in one sense optimistic but he over emphasises Dr Slick’s advice and when advising on the value of Bernard’s claim he is circumspect. He rather vaguely uses wording such as “strongly arguable”, “unclear prognosis” and “too early to tell. Because Jones is an experienced lawyer, his reports are not scrutinised as closely as they might otherwise have been and considerable sums of money are committed to funding Bernard’s litigation by insurance company employees who in truth have been given to understand that the claims was worth more than it actually is.

Bernard’s medical notes and records are obtained quite quickly. He is sent to see Dr. Slick who writes a favourable but balanced report stressing that his loss of visual acuity is significant but nonetheless modest. Bernard subsequently discusses the report with Jones. He tells Jones that he has just heard about this wonderful thing called mediation and also mentions that he has been “advised” by a lawyer friend that his claim is worth something in the region of £20,000.

On the subject of compensation, Jones remains reticent. It subsequently transpires that just after Bernard instructed him, he formed the view that the claim was worth no more than £10,000. However, instead of at least advising both Bernard and the insurance company that broadly speaking a settlement in the region £20,000figure was unrealistic, Jones simply advises that “settlement figure wise it is too early to tell.” Also, in this and in a number of subsequent conversations, whenever Bernard mentions mediation Jones either changes the subject or falls silent and he certainly makes no reference to this option in any of his communications with the insurance company.

Tied in as he is to the conditional fee agreement, Bernard who is a bit of a worrier and finds the process of litigation to be very stressful, feels that he has no choice but to proceed even though he is concerned that Jones is basically ignoring his requests for mediation. Bernard also notices that whenever he asks Jones about costs, he is told that there is nothing for him to worry about and that either “the insurers or the health authority will pay”. Ongoing delays are attributed to intransigence on the part of the health authority’s solicitors.

Two and a half years later Jones finally threatens to issue proceedings in the High Court whereupon the case settles for £10,000! As part of a final agreement, Bernard graciously accepts his £10,000 “in full and final settlement” but is surprised to learn that he is expected to adhere to a confidentiality clause and that there is “no admission as to liability”.

Bernard is pleased to receive this compensation but has some misgivings and raises these with Jones. He is told that mediation is “overrated”. Additionally, when pressed, Jones unashamedly tells him that the health authority has also agreed to pay “something” towards Bernard’s costs but there is a shortfall of around £2,000. The bulk of this is paid by the insurance company but Bernard unexpectedly finds that he is expected to make a small contribution as well. Jones quite readily, almost flippantly mentions to Bernard that the health authority’s solicitors have “probably” charged even more for their services. Dr Slick’s fee alone was in the region of £4000.

It would be fair to say that Bernard has rather mixed feelings about the outcome. Of course, he is relieved and of course he accepts that Dr. Slick’s fee was “money well spent”. Also, he entirely accepts that Jones very skilfully and successfully argued that legally speaking, his modest loss of visual acuity was a material loss.

At the same time Bernard feels that he has had to put up with almost three years’ worth of litigation stress and he cannot help wondering what the point of it all was. He is all too aware that ultimately between them, the NHS and his insurance company have paid out something in the region of £40,000.00 in respect of a claim worth only £10,000.00 and he is very angry that Jones effectively ignored his request for mediation. So much time has elapsed and Bernard’s hopes of pursuing a complaint against Dr. Popeye are dashed and he comes to realise that he will never receive the personal apology that Dr. Slick’s report so patently suggests that he is entitled to.

Bernard also realises that his scenario is being re-enacted across the UK on a regular basis. He could possibly complain to one or more of the relevant regulatory authorities. However, he is concerned that the complaints process he would be expected to pursue is not completely straightforward and that it is by no means certain that he would ultimately succeed. Like many, he is put off by the prospect of two more years of discord and arguing and decides to take no further action.

Although Jones should have warned Bernard at the outset in general terms that this claim was not with anything like £20,000.00 and should not have ignored the requests for mediation, the reality is that in very many respects both he and the health authority’s solicitors did what many legal insiders would regard as a perfectly good, professional job.

In many instances, solicitors will quite rightly pursue claims for compensation very vigorously and will secure much needed, sometimes very substantial amounts for clients who otherwise would be quite wrongly denied it. However, Bernard’s scenario is all too common and cases such as his are costing insurance companies and by implication their customers, considerable sums of money whilst at the same time not delivering fairness and justice. Individual insurance companies may not have the right to insist on mediation but given that in many instances they will be the holders of the purse strings their views will carry considerable weight.

Some legal and financial commentators, may argue that given recent authoritative guidance from the higher UK courts, there is now less likelihood of Bernard’s scenario being re-enacted. However, there are still quite a number of notable gaps in the UK Courts’ procedural rules. In any event, the courts have no jurisdiction over cases such as his that “settle” before proceedings are issued.

For an initial without obligation discussion contact Paul Sandford the ASM Plus director on 0739365482 or 00351 968 898 080 which is linked to Whats App and Telegram.  Alternatively email Paul on