Background

​Archie and Veronica have issued proceedings in the High Court on behalf of their six-year-old daughter, Betsy, against the Slugabed Health Authority and two of its employees, a midwife named Laura and a nurse, Louisa.

​Archie and Veronica claim that as a result of the combined negligence of a midwife and a nurse, when Veronica gave birth, the appropriate treatment was not provided and that during Betsy’s delivery there were some complications. As a result, Betsy was asphyxiated and suffered irreversible brain damage. As things stand, although she does not suffer with any form of physical impairment, she has the mental age of a six-month-old baby and although her development is not completely arrested, it is thought that that the best Archie and Veronica can hope for is that one day their daughter will attain a mental age of a seven-year-old. ​The solicitors acting for them, Bundle and Co, initially advised that their claim was worth “several million pounds”.

Bundle and Co have obtained medical reports from two highly qualified independent medical experts who advise that the authority has been negligent. However, the authority has obtained written opinions from two other highly qualified independent medical experts who disagree.

Scenario 1

​The chief executive of the health authority, Money Penny, and a senior NHS lawyer, Jones, have privately admitted to one another that the prospects of Archie and Veronica succeeding in their claim are “pretty reasonable”. ​What particularly concerns them is the amount of compensation claimed by Bundle & Co. Although they concede that if a judge finds against the authority, it will have to pay out very substantial sums in compensation, Bundle and Co have a reputation for being opportunistic and a bit too cavalier about both compensation claims and their costs. Parts of the damages claim that they have provided are interpreted by Money Penny and Jones as fanciful and overblown and they conclude that their best option is staunch defence.

​In consequence, the health authority lawyers dealing with the case on a day-to-day basis drag their feet and behave in a matter that could be described as highly obstructive. Directions made by the court are ignored and amidst their frustration, Archie and Veronica grow ever more resentful and are convinced that there has been a cover up. ​

Three years after the claim for compensation was issued (by which time Betsy is nine years old) and at the end of a very stressful two-week trial, a High Court Judge decides that the health authority has been negligent and awards a very substantial sum in compensation. A further lengthy dispute ensues. The lawyers then argue about their costs and a further 12 months go by before everything is finally resolved. At this point a costs judge makes the point that the case should have been referred to mediation which had previously been mentioned, “a long time ago”.  ​

The very significant delays mean that money that was desperately needed to address Betsy’s day-to-day needs has only belatedly materialised. This has had a marked impact on her and her parents. Archie and Veronica who were ultimately awarded a multimillion pound settlement damages are shocked to learn that their solicitors, who in their view also delayed matters unnecessarily, are to be paid £2,000,000 in costs. They are tempted to complain but after many years of protracted litigation they have literally run out of steam and are too exhausted to do so. ​

No-one gives a thought to the costs incurred by the health authority and in reality, the true final costs bill is around the £5,000,000 mark.

Scenario 2

​In this scenario the parties agree early on that the fundamental question of liability cannot be resolved informally and that it should be determined by the High Court. However, they also agree in principle that if the court determines that the health authority was negligent then it will have to pay out very substantial damages. They all agree that once the liability issue has been determined any compensation issues will be referred to mediation.

​Following a two-day trial, the Judge finds that the authority has been negligent and then adjourns the case so that the mediation can go ahead.

​Because there are a lot of complex issues, the mediation lasts three days but the time is very well spent and brings out the best in all those who attend. Compensation and costs are agreed and subsequently, after a brief hearing, the court approves the settlement.

​Scenario 1 is not untypical of what happens on a day-to-day basis. In scenario 2, the court has much less involvement and although a considerable amount of preparation went into both the two court hearings and the fairly lengthy, three-day mediation. In practice, the total costs bill is only a fraction of what was incurred in scenario 1.

​This amounts to a considerable saving of time and money for the health authority and a speedier less stressful outcome for Archie and Veronica.  Bundle and Co have two satisfied clients who will recommend them to others and the faster turnover helps their bank balance. A lot of the money that is urgently needed for Betsy’s care becomes available three years or so earlier than would otherwise have been the case. The health authority’s savings effectively mean more money for patient care.

​This is what mediators rightly term a “win-win” scenario.

Principal Director of ASM, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.