NHS Resolution calls for compulsory ADR before issue and “cards on the table” from claimants

Clinical negligence: Call for pre-issue disclosure of reports

Parties should be required to engage in a form of alternative dispute resolution (ADR) before the issue of proceedings, NHS Resolution has argued.

It also “strongly” advocated the disclosure of liability and quantum reports prior to issue.

In its newly published submission to the Civil Justice Council’s ADR review, NHSR said that in order to make ADR of whatever kind culturally normal, “we suggest that there be a requirement to engage in the process prior to issuing proceedings”.

It continued: “By this we do not mean that there should be a mediation in every case, but rather attempts at ADR in whatever form is most appropriate for the case, including negotiation, to narrow the issues.

“Policing of such attempts would probably have to be undertaken by the procedural judge in the first hearing after commencement of proceedings, and the remedy could be by way of costs sanctions.”

It suggested that the sanctions in pre-action protocols should be strengthened in the event that a party does not engage in ADR.

“Additionally, there should be encouragement of as many relevant groups and bodies as possible to promote ADR. Such bodies could include consumer and patient groups, the Law Society, the Bar Council, the BMA and the medical defence organisations.”

Early disclosure of liability and quantum reports would “represent a true ‘cards on the table’ approach and accord with the spirit of the Woolf reforms in 1999”.

NHSR continued: “Some practicalities need to be ironed out. For example, there might perhaps be a compulsory suspension of limitation for a defined period pending the use of ADR. By ADR in this context we include settlement negotiations.

“Alternatively, rather than compulsorily extending limitation, it could be that the period between issue and service of proceedings is extended pending the undertaking of ADR (again, to include settlement negotiations).

If compulsion in particular sectors was seen as the way forward, NHSR said clinical negligence should be included, together perhaps with employers’ liability and public liability cases worth more than £25,000.

The organisation said it was “very keen to spread the message that mediation is an excellent way of resolving problematical cases, especially those which entail issues over and above money”.

But take-up from claimant lawyers was “patchy”. In NHSR’s recent mediation pilot, of the 91 offers of mediation made, 32 were either declined or the claimant’s lawyer did not respond.

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