ADR does not mean mediation!
Posted By : Bill On 17/01/2018 07:30:00
And following on again from the previous blog, wouldn’t it be nice if the catastrophic personal injury market really started to concentrate on ADR.

I frequent hear people say about ADR “oh, you mean mediation, we've tried that and it didn’t work”. I find that dispiriting for several reasons.

First, ADR does not mean mediation; it covers a wide range of established systems, such as early neutral evaluation (now confirmed as one of the judge’s tools on directions hearings), evaluation at any stage of the case, determination, and so on.

Secondly, ADR can be made to mean what the parties want it to. If they want to look at something more than mediation, for example, they can discuss what they think would work better.

Thirdly, that stereotyped response that ADR means mediation shows that the person isn’t taking control of his or her own decision-making process.

I've now had a few cases where both sides have explored the range of ADR options in an imaginative way eg to appoint a senior lawyer as evaluater or determiner, with or without a right of appeal or reversion to the court.

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Interim payments and the discount rate - have they gone up accordingly?
Posted By : Bill On 09/01/2018 07:30:00
I wonder whether anyone has seen an interim payment of more than £1.9 million recently? The change in the discount rate has changed current levels of damages, so I would expect interim payments to have gone up accordingly, but I don’t seem to have read of any big ones.

We got £1.9 million just before Christmas.

The judge applied the two-stage test established in Eeles (a case I was in). He decided that the claimant's current home was wholly unsuitable, and that the fact that the only suitable accommodation identified was larger and more expensive than a property that would exactly match the claimant's needs was a problem for the trust as the tortfeasor, not a misfortune to impose on the claimant. The second stage was triggered where the requested interim payment exceeded a reasonable proportion of the likely award assessed under stage 1, as it did in the instant case. There was an urgent and pressing need for the claimant to move to more suitable accommodation.

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Centre for Policy Studies report - ignorant and one-sided
Posted By : Bill On 06/10/2017 15:45:00
Bill Braithwaite QC has labelled a medico-legal report by the Centre for Policy Studies as “enormously ignorant and one-sided”.

The report - The Medico-Legal Crisis and How to Solve it - by Dr Paul Goldsmith, says the NHS’ liabilities for medico-legal claims now total £65bn, draining the NHS of much needed funds and putting patients at risk by driving GPs out of practice.  It also claims that the UK’s medico-legal bill is £24 per person, more than twice the US’ £9 per person, despite the US’s reputation as a more litigious culture.

Said Bill Braithwaite QC:

“The £65 billion is a ridiculous projection over many future years, using scare-mongering assumptions.

“Let’s also remember that the foundation of every successful claim is negligence by doctors and medical staff - and that seems to be getting worse.”

 Dr Paul Goldsmith’s report warns that the cost of claims in the UK is likely to increase substantially after the drop in the discount rate from 2.5 per cent to -0.75 per cent, and adds that “many in the insurance industry believe that the reduction in the discount rate will result in over-compensation”.

“At best, this is misinformation,” responded Bill Braithwaite.

“Under pressure from the powerful insurance lobby, and partly to help the NHS, the Government has already backtracked on its decision earlier this year.

“Claimants should not be expected to run any investment risks with money which a Judge has declared is essential to their future health and well-being - yet this is now the reality of their situation.

“Prior to this year’s change, the discount rate was last set in 2001 - meaning claimants have been under-compensated for over fifteen years.”

Dr Paul Goldsmith’s report says that the law covering financial awards is out of date, reflecting an assumption that claimants would use private care, rather than returning to the NHS.

Responded Bill:

“We in the ‘industry’ all know that reliance on the NHS for lifelong care would be madness - the chasm in quality of life between those with, and those without, compensation is vast.

“The report goes on to say that loss of earnings claims should be limited - but that would attack the very basic principle of compensation, acknowledged by the Government, that the object is to put right the wrong that has been done.”

Bill Braithwaite also takes exception to the report’s claim that “the current system is expensive, unsustainable and can cause more harm than good”.

“I wonder where he has found the evidence that it causes harm?” he asks.  “Is it so wrong that negligent - ie careless – doctors and clinical staff should be confronted with the damage they’ve done, and that their employers should be made to pay?”

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Thompsons fights back against insurers
Posted By : Bill On 07/08/2017 15:30:00
It’s heartening to see Thompsons Solicitors fighting back against the insurers, by asking them to justify their increase in profits as car insurance premiums continue to rise, despite their constant whining about the compensation culture and the discount rate.

They point out the healthy profits that three of the major insurers have announced recently, and that, if you look carefully at the figures, the picture is not one of insurance companies being driven into insolvency by whiplash, fraud, discount rate, more claims etc. Far from it, in some areas claims and costs are falling for insurers.

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