Silk hits back at NHS Resolution chief executive over mediation claims

Bill Braithwaite QC, the head of Exchange Chambers, has hit back at NHS Resolution chief executive Helen Vernon for declaring that claimant lawyers were resisting mediation offered to them by the litigation authority.

Giving evidence to the Commons public accounts committee this week, Vernon was asked why NHS Resolution was not doing more to carry out early investigations and start to control the £1.6 billion it spends annually on clinical negligence claims.

In response, she revealed that the organisation’s new mediation service has resolved just 71 claims in its first 10 months. She went on to say that claimant lawyers were to blame for putting up “some resistance” to mediation.

However, Braithwaite said that in his own ancedotal experience, when claimant lawyers offer ADR they fail to get the NHS to agree.

He also pointed out that Vernon had also admitted that two-thirds of cases are kept away from court, which he said meant that claimant lawyers were participating in finalising claims without increasing costs by going to court.

Braithwaite also highlighted a recent consultation of his in a case where trial was listed for the March 2014.

“The claimant’s case was completely ready, and the NHS admitted liability in an appropriate way in February, which meant that they were ordered by the court to pay all the preparation costs.

“The medical negligence had taken place in 2006, in appalling circumstances, and court proceedings were commenced in 2011. The court ordered ADR in late 2012, but it did not take place until 2014 – we were pushing for it in 2013.

Braithwaite also disputes Vernon’s claim that NHS Resolution has been increasingly pushing cases towards mediation as a way of resolving claims without formal court proceedings.

“My clear recollection is that I have never been involved in a clinical negligence claim where the NHS has offered mediation at an appropriate stage,” he said.

“As I have been saying for years, if the NHS trained their staff better, so that they were negligent less often, and if they insisted on their lawyers and defence organisations behaving sensibly, instead of trying to defend the indefensible, costs would reduce dramatically.”

Mark Dugdale