Is Alternative Dispute Resolution appropriate for medical and general negligence claims?

Posted Feb 12, 2018.
In a recent submission to the Civil Justice Council’s ADR review, NHS Resolution (formerly known as the NHS Litigation Authority) – the bulk of whose work involves defending negligence claims on behalf of various NHS indemnity schemes – has proposed that both claimant and defendant sides should have to engage in a suitable type of Alternative Dispute Resolution (ADR) prior to the issue of proceedings.

A spokesperson for NHS Resolution further clarified the proposal, saying “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.”

The proposal also suggest that should either the claimant or defendant not engage in an appropriate ADR process, then pre-action protocol sanctions would be strengthened In addition, they suggest that  encouragement of early disclosure of evidence and reports (such as for quantum and liability) would “represent a true ‘cards on the table’ approach and accord with the spirit of the Woolf reforms in 1999”.

NHS Resolution admit that there are practicalities to be ironed out, such as in the area of limitation. As well as applying a compulsory ADR process for medical and clinical negligence claims – the bulk of NHS Resolutions work – they feel the process could also be applied to employers liability and public liability claims that are valued at more than £25,000, the current Fast track limit. NHS Resolution 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”.