Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
As solicitors who represent seriously injured children and adults in clinical negligence claims, we are aware that, while Claimants need access to compensation, they may be worried by the prospect of a trial.
Since 1998 the Court rules have emphasised the importance of attempting to negotiate settlement of claims, to avoid the unnecessary involvement of the Courts. These rules include a process for making and responding to formal settlement offers (called “Part 36 offers”).
As a consequence, very few medical negligence cases are decided at trial. Instead the majority of successful claims end with an agreed settlement.
This can benefit both sides. Claimants are able to access compensation sooner and do not have to go through the stress of a trial. Defendants can also make considerable savings in legal costs, if they engage in settlement negotiation at an early stage.
Conversely, delay or failure to accept a settlement offer made by a Claimant can be costly for a Defendant, if the Claimant goes on to get the same or a better outcome for their case.
This was exemplified in the recently reported case of Holmes v West London Mental Health Trust (2018) [LTL 3/7/2018 EXTEMPORE].
The Claimant had brought a claim for injuries related to the effects of toxic levels of a prescribed drug. She offered to settle the case on the basis of 95% liability (which means that the Defendant would have to pay 95% of the assessed damages). The Defendant made its own lower percentage offers to settle liability, which were not accepted. Then, over a year later, the Defendant accepted the Claimant’s 95% offer. In deciding that the Defendant should have to pay the legal costs which had been incurred after the Claimant’s offer on an “indemnity” basis (a stricter than usual order in respect of costs following a settlement), the Judge noted both the long period prior to acceptance of the Claimant’s offer and the way in which the Defendant had conducted the litigation more generally.
This shows that, while it is always important to put forward a claim as robustly as possible, taking a strategic view to potential settlement, and making a well-pitched offer, can put Claimants in a strong position.
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