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Brooke: government lawyers must take part in mediation even if it means “losing business”

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Sir Henry: government “angst” over the cost of clinical negligence

Sir Henry Brooke, former Vice-President of the Court of Appeal’s Civil Division, has called on government lawyers to “involve themselves in mediations even if they perceive that they may be losing business for themselves”.

He was commenting on two recent cases [2], reported by Litigation Futures, [2] in which the NHS Litigation Authority (NHSLA) was ordered to pay indemnity costs on detailed assessment proceedings after rejecting offers to mediate.

As a lord justice of appeal, Sir Henry ruled in the important case of Dunnett v Railtrack that parties who unreasonably refused to mediate could lose the ability recover some or all of their costs, a principle upheld in the leading case of Halsey.

Writing on his blog [3] following the two recent cases, Sir Henry said: “Since taxpayers’ money was at risk, it would be good if the claimants’ solicitors (who were the same in both these cases) could collaborate with the NHSLA in reporting to the public just how much money was in fact wasted by the stance adopted by the defendants’ representatives in each case.

“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.”

Sir Henry Brooke referred to the words of Charles Dickens in Bleak House: “The one great principle of the English law is to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings.”

Sir Henry went on: “If the government is to be serious about reducing the cost of civil justice, it must get the message through not only to the panel solicitors but also to the costs lawyers and law costs draftsmen who represent it that this principle should now be regarded as being as dead as the dodo.

“All these professional men and women must always act reasonably in their clients’ interests. This entails being willing to involve themselves in mediations even if they perceive that they may be losing business for themselves thereby.”

Responding to a comment from Jonathan Dingle, barrister and co-founder of Trust Mediation, asking how much more public money would be wasted by the NHSLA, Sir Henry said the issue was “particularly poignant” because of “all the angst that government has been expressing about what it perceives to be the excessive cost of clinical negligence litigation”.

Sir Henry said that in both of the recent cases, “after a long delay the NHSLA’s solicitors refused an invitation to mediate the claimant’s costs bill in each case. In the first case (Reid) they gave no reasons at all. In the other (Bristow) they said only that the case had now been set down for a detailed assessment.

“In other words, they did not think there was any need for them to justify their refusal. In each case an experienced costs judge held that their refusal to mediate was unreasonable.”