Bill Braithwaite QC - RSS Feed

Weight loss surgery goes wrong in court

Tue, 09 Oct 2018 15:05:59 +0000

Bill (Bill Braithwaite), posted a new item:
Weight loss surgery goes wrong in court.

Here is a vivid warning from Mrs Justice Yip about the need for analysing carefully all the allegations in a clinical negligence claim – and it applies to all personal injury claims.

“The overwhelming impression I had was that proper consideration had not been given on the Claimant’s side as to how the consent allegations could be maintained on the evidence (taken at its highest) within the correct legal framework. This part of the case was not just weak; it was not properly arguable….. Looked at overall, it is clear that the Claimant was the undisputed “winner” in this litigation. However, in assessing “who has been responsible for the fact that costs have been incurred which should not have been”, the costs associated with the consent issue call for particular consideration.”.

Although that might look like a good win for the Defendant, the judge made it quite clear that the NHS Resolution Service could and should have made an offer to settle which protected it from a costs order; it did offer, but too low.

So this is yet another case, which never gets into the papers, where the NHS pays out unnecessary costs, thus no doubt reducing the money available for healthcare.

More medical negligence causing brain injury and cerebral palsy

Fri, 21 Sep 2018 08:30:04 +0000

Bill (Bill Braithwaite), posted a new item:
More medical negligence causing brain injury and cerebral palsy.

This week I've finalised a claim for almost £20 million for a girl with cerebral palsy caused by negligent management of her birth. The following day I read in the paper that “The Care Quality Commission has written to bosses at Shrewsbury and Telford Trust to warn that it was not properly assessing high-risk pregnant women or following best practice guidelines, including providing appropriate levels of consultant input. Midwives were not properly supervised when carrying out scans to monitor a baby’s heart rate, the commission said. Incorrect interpretation of such scans was among the most common causes of injury to babies during birth.”.

I see many cases across the country where the scans are not interpreted properly, leading to catastrophic injury.

At the same time, I read continuous complaints by the NHS that it’s having to pay out large sums of compensation and lawyers’ costs.

When will they join up the lines, and realise that mismanagement of the birth process destroys lives and costs a fortune? Good management of units, training of staff, ongoing assessment of ability at all levels particularly including consultants, supervision, and destruction of the culture of always denying that they have been negligent; these normal business steps would save them a fortune.

Conflict between brain injury case managers and solicitors

Wed, 12 Sep 2018 14:31:52 +0000

Bill (Bill Braithwaite), posted a new item:
Conflict between brain injury case managers and solicitors.
A recent survey in two parts has caused consternation in brain injury litigation circles. Exchange Chambers conducted a survey of solicitors to see what their attitudes to case managers is, and to gather their experience of working with case managers. The results were scary!

56% of solicitors have sacked and replaced the client’s case manager – reasons include failure to get the job done and failure to gain the family’s trust and respect – and the majority believe that case managers have no role to play in the management of the litigation.

Equally frightening was the finding that 77% of claimant solicitors say they have experienced a situation where the family has not acted in the best interests of their seriously injured relative.

These results clearly call for an open dialogue so findings can act as a catalyst to improve the whole claims and rehabilitation process.
Our findings were coordinated with a poll by Nockolds Solicitors which highlighted concerns from case managers over the conduct of solicitors. Their survey found that 81% of case managers have experienced a situation where a claimant solicitor had clearly not acted in the best interests of the client.

Personally, I've always thought that a good case manager is the key to a successful outcome for the injured person, the family, and the compensation claim, and I maintain that view. The more the system becomes commercialised, though, the greater the difficulty of finding good case managers. So much of the litigation is bound up with the injured person and the family, and the plan for life, that it seems to me to be obvious that the case manager should be involved in some part of the litigation process.
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Disabled housing claims for catastrophically injured claimants

Fri, 07 Sep 2018 09:25:47 +0000

Bill (Bill Braithwaite), posted a new item:
Disabled housing claims for catastrophically injured claimants.
The passage of time, inflation, and the reduction in the discount rate have brought accommodation claims to the forefront in catastrophic injury claims. A very recent example for me is a house costing £1.6 million. The existing system requires the claimant to find that money from other heads of claim, leading to a shortfall in later life unless she can release equity when it is required. This could be disastrous for someone with catastrophic injury, and may force her to capitalise future losses better suited to periodical payments.

All sorts of solutions have been proposed over the years, but none have been workable – and that might still be the case.

Some current suggestions are:

1              no claim for purchase price of property ie RvJ
2              defendant to pay the cost of the property
3              the lifetime cost of renting a property
4              claimant or defendant fund a loan or a mortgage – periodical payments order or a lump sum to fund – repayable on death, or during life
5              the defendant buys the property and gives the claimant a lifelong tenancy
6              Similar to option 4 with the defendant owning part of the property, the defendant’s percentage being held in trust
7              equity release
8              a compromise of the claimant using the pain and suffering damages as part payment, the defendant to fund the remainder of the cost.

This blog is too short for a proper analysis of the suggested solutions, and the case law, but I've written an article for the next edition of Personal Injury Law Journal .  Read more

Interim Payments in Catastrophic Injury Litigation

Mon, 03 Sep 2018 10:20:08 +0000

Bill (Bill Braithwaite), posted a new item:
Interim Payments in Catastrophic Injury Litigation.
I've had many interesting interim payment experiences over the years, but two recent ones stand out.

The first is reported as Bayley Porter [2017] EWHC 3205 (QB). I think it’s the largest interim payment ever - £1.9 million – but what struck me about it is that it was contested by the NHS. We had overwhelming evidence that the poor accommodation was hindering the claimant’s progress, but, instead of a sensible dialogue about how to improve matters, the case was taken to court, resulting in another demonstration of how Eeles does not stop claimants buying houses.

The second is again a case where the claimant’s progress is damaged by what I would call defence intransigence; failure to fund rehabilitation, causing limitation of the therapies, and possibly impacting on the eventual independence of the claimant (which might have a cost impact adverse to the defendant).

I think interim payments are a major area where neutral facilitation would work – I'm sure that a good facilitator could have managed both these cases to a better, and cheaper for the defendant, result.
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Permission for care expert in brain damage compensation claim payout

Thu, 30 Aug 2018 08:47:42 +0000

Bill (Bill Braithwaite), posted a new item:
Permission for care expert in brain damage compensation claim payout.
I was very surprised to read the case of Ryan v Resende [2018] EWHC 2145 (QB), in which the High Court judge allowed an appeal from a decision refusing the claimant permission to rely on a care expert.

Not surprised at the result, but because any judge, even at the lowest level, could have thought it appropriate to deny a claimant the ability to present a claim for future care and support. One of the reasons was that other experts could give that evidence, and of course the defence experts lent some support to that (although one did have the decency to express reservations), but surely it must be axiomatic in any big or biggish case that a care expert is necessary.

Taking charge of a major case, and mapping out a clear route is easy – if you have it as a priority – and it makes a significant difference to the end result. It would avoid finding yourself without a crucial witness. Read more

Esure, insurers and why the media have had the wool pulled over their eyes

Fri, 09 Mar 2018 09:00:00 +0000

Bill (Bill Braithwaite), posted a new item:
Esure, insurers and why the media have had the wool pulled over their eyes.
Esure, the insurer, reported a 35.6 per cent rise in full-year pre-tax profits yesterday to £98.6 million. The increase in profits allowed them to announce a dividend of 13.5p per share.

So this is another insurer which has managed to make massive profits despite the outcry last year when the discount rate was changed to the correct one.

I wonder whether the media realise that they had the wool pulled over their eyes last year with all the spin about the unmanageable cost to the consumer of increased compensation.
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Judicial appointments - is it any wonder serious litigators try their utmost to avoid the courts?

Fri, 09 Mar 2018 09:00:00 +0000

Bill (Bill Braithwaite), posted a new item:
Judicial appointments - is it any wonder serious litigators try their utmost to avoid the courts?.
There was a fascinating article in the paper recently, about the quality of judicial appointments. Vacancies can't be filled at all levels up to High Court, and the obvious result is that the quality of appointments has fallen, and is now low. Until 2015, all High Court judges were said to be “A class”, or “outstanding” candidates. The standard has slipped so far now, though, that the Judicial Appointments Commission admits that new High Court judges are rated A or B (“strong”). It’s worse, though, when we look at circuit judges. In 2016, 14 appointees were C-class, which is the polite way of calling them third rate, or “selectable”. This is the first time grade Cs have been chosen. In 2017 there were even more C class – 19, and most recently there were 25 – so 58 third rate judges appointed to important posts in the last three years. At the lowest level, there were nearly as many grade Cs as the total of A and Bs – 43 compared to 53.

It’s no wonder, is it, that serious litigators try their utmost to avoid courts. Read more

200 million reasons not to believe insurers when they talk about the discount rate

Wed, 28 Feb 2018 19:00:00 +0000

Bill (Bill Braithwaite), posted a new item:
200 million reasons not to believe insurers when they talk about the discount rate.
There was an article in the Law Gazette the other day headlining that Direct Line profits were up £200m in a year – described as an enormous rise in profits – one year on from reforms that were predicted to catastrophically reduce sector profits, leading to premium increases for all of us. Naturally the insurance industry spin was that it was all due to claimants and their lawyers.

Specifically, Direct Line reported that it expects operating profits for the full 2017 year to be £610.9m - a leap of 51.4% on 2016. Also, dividends have risen this year by 40%, and Direct Line added it would pay a special dividend of 15p, up from the 10p it paid a year earlier.

Last week, Allianz UK announced that operating profits for 2017 had increased 26% - but added that they would have been £22m higher but for the change in the discount rate – I wonder how they calculated that.

I agree with Sam Hemsley from Thompsons, who pointed out that the insurance sector benefitted from the 2.5% rate for 16 years before last year’s change.
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The NHS - at last an admission that clinical negligence claims are caused by poor care!

Sun, 18 Feb 2018 11:45:00 +0000

Bill (Bill Braithwaite), posted a new item:
The NHS - at last an admission that clinical negligence claims are caused by poor care!.
The NHS has placed yet another story in the news; “The government is to restrict lawyers by capping the costs that they can recover in clinical negligence cases.”

A working group will discuss a cap on cases “worth” less than £25,000, and the Medical Protection Society hopes “to see a bolder decision …. with cases up to the value of £250,000.”

Jeremy Hunt, the health and social care secretary said, interestingly “that the best way to cut negligence costs was ‘to reduce patient harm in the first place’” – at long last an open admission that clinical negligence claims are caused by poor care.

They trot out, yet again, the example of “one instance”, where lawyers claimed £83,000 for a case in which the patient was awarded £1,000. I agree that that is outrageous, and of course they are right to condemn disproportionate costs.

Oddly enough, I agree with what lies behind their publicity, although not with their approach. It applies to personal injury litigation as well as clinical negligence; in a society in which public money is getting more scarce, we may not be able to afford the Rolls Royce claims system that we’re used to.

However, I would approach it differently. I would try to train staff so that mistakes are less common, and I would radically overhaul the litigation management. Part of the reason that costs are so high is that the NHSLA, as it was, litigated, in my experience, very badly.

Of course, a real worry about a cap on costs is that, if they want to, the NHS litigation body can defend claims in a way that gets the claimant’s costs up to the cap very quickly, depriving them of the chance to present a good claim. An anecdotal example is the insistence on a medical report at the outset of every claim; that can cost thousands, whereas discussion between sensible claimant and defendant lawyers could plot a cheap and reasonable way forward.

Considering that the NHSLA changed its title to NHS Resolution, you might think that they were pursuing ADR (which is what my suggestion is) vigorously – no sign yet.

The working group will have representatives from the Department of Health and Social Care, the Civil Justice Council and the Ministry of Justice. It comes in response to a consultation on introducing the cap last year and was a key recommendation in a review of civil litigation costs by Lord Justice Jackson.

Niall Dickson, chief executive of the NHS Confederation, said the announcement was “a step in the right direction”. He said resources were being diverted from the NHS.

He added that the £25,000 limit was “a positive first step”.

The cap includes a scheme designed to offer quicker access to compensation for families of children left severely brain damaged after birth.
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Life outside London

Thu, 15 Feb 2018 11:00:00 +0000

Bill (Bill Braithwaite), posted a new item:
Life outside London.
Lovely to see an article in The Times today headed “A strong case for life outside London”, highlighting the advantages of a pupillage in the provinces. It refers to our new pupillage film discussing the advantages of taking pupillage at a large regional set rather than in London.

It’s of real interest to me, because I created our pupillage system about 30 years ago, and we have been very progressive ever since. I think we were the first to offer guaranteed earnings for new tenants over their first two years, on the basis that it would help with their debt.

What might interest pupillage applicants is that the video shows life through the eyes of two of the young barristers who practise here, gives potential pupils a flavour of how their careers can progress at a full-service set with geographical coverage across the whole of the north.
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Baby brain injuries

Wed, 14 Feb 2018 11:00:00 +0000

Bill (Bill Braithwaite), posted a new item:
Baby brain injuries.
I read today that compensation claims for new-born babies suffering brain injury or cerebral palsy have gone up by 23% in the year 2016/7.

I realise that this is a different statistic from the actual number of babies born in that year with brain damage or cerebral palsy, but one possibility is that the actual number of severely injured babies has risen significantly.

If that is so, it may reflect poor standards of care, rather than the NHS’s usual explanation of rapacious lawyers.

Interestingly, a report published last year by the Royal College of Obstetricians and Gynaecologists concluded that most baby brain injuries in labour are avoidable.

So, if the number of brain injuries at birth has risen, the Royal College conclusion suggests that care standards have dropped.





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Finding a good solicitor

Fri, 09 Feb 2018 18:15:00 +0000

Bill (Bill Braithwaite), posted a new item:
Finding a good solicitor.
I had a discussion recently with a parent trying to find a good solicitor to represent his daughter with cerebral palsy. After a lot of discussion, he emailed me this summary: “So, a likeable, dedicated and skilled lawyer with a minimum of 10 years’ experience working on top-end liability and quantum cerebral palsy cases. The job ad is out now!”.

That really says it all. So many lawyers want to do these big cases, and all do their best to talk them in. Sadly, not many families feel able to cross examine the solicitor about his or her true experience, and the evidence to support what is said. As a result, some cases are handled by lawyers who don’t have the necessary experience and ability.

That’s why one of the main features of my web site is a section advising people how to find a good, suitable solicitor – try googling brain injury solicitor, and see what you find!
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The NHS - look beyond the headlines

Sun, 04 Feb 2018 14:45:00 +0000

Bill (Bill Braithwaite), posted a new item:
The NHS - look beyond the headlines.
There were two headlines in the paper this week which, taken together, infuriated me:

“NHS forced to pay £1,500 for £2 pot of moisturiser” and “Compensation payouts ‘could bankrupt NHS’”.

The first one sounds like bad management; how else do you pay £1,500 for a £2 item? Is it a badly drawn contract, or a person responsible for purchasing who failed to see, and solve, the problem.

The second one is the usual NHS spin (they must spend a lot on public relations). Big claims which succeed (and the ones that fail don’t affect the NHS) do so because the staff have been negligent. They keep on being negligent, and have done for the last 25 years at least. Proper training would prevent a lot of the claims I see – simple bad management of the birth process, leading to a child born with cerebral palsy.

Taken together, the headlines suggest that the NHS don’t train anyone; either the medical staff or the purchasing officers.

Of course, behind those headlines, but I think obscured by them, is the fact that the NHS provides some wonderful care to a lot of us; many people have a story about how well they have been looked after.
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The NHS - making the same mistakes for decades

Mon, 29 Jan 2018 08:15:00 +0000

Bill (Bill Braithwaite), posted a new item:
The NHS - making the same mistakes for decades.
The NHS has a Government-funded scheme to deal with negligence claims for events before April 1995. Its payouts rose by 13% last year to £27.7m, which prompted the chief executive of AvMA to say "We, as a charity, have been going for 35 years and we still see the same mistakes, the same avoidable errors causing injury now as we did 35 years ago.".

What a very sad indictment. It fits in with my experience over 25 years, which suggests the same. I remember writing an article many years ago, criticising the NHS for the birth injuries caused by its negligence, and the chairman wrote to me, objecting. He wouldn’t discuss the problem with me, though, when I invited him to do so.
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A shared interest in solving the accommodation problem

Fri, 26 Jan 2018 09:30:00 +0000

Bill (Bill Braithwaite), posted a new item:
A shared interest in solving the accommodation problem.
Another interesting aspect of that huge interim payment case is that, on the face of it, the parties had an identity of interest in solving the accommodation problem.

Once it is clear, as it was in that case, that the present accommodation is grossly inadequate, and that it is hindering rehabilitation, the Defendant is as much interested in sitting round the table to discuss “how can we all resolve this so that the Claimant becomes properly rehabilitated, thus maximising her independence (wonderful for her), and reducing the lifetime cost of support (good for them).

One of many aspect of good negotiation and management in catastrophic injury claims is surely to look at the problem from the point of view of the other party, and to be imaginative about the solutions which will suit both sides.

Part of that process for claimants is to make a presentation to the defendant which makes it easy for the defendant to see the problem, and to guide it to various possible solutions.

For example, a defendant might prefer not to pay out £1.9 million at a time of the court’s direction, but would prefer to fit it into the financial year and budget in order to minimise adverse impact. Or, perhaps a one or two year rental, at tiny cost comparatively, would let both sides find a cheaper, and better, solution. People sometime suggest shared, or defendant, ownership of the house, but I've never thought that was viable – unless a defendant could put forward a package which allayed the obvious claimant objections to living in the wrongdoer’s house, and not having security of tenure.
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ADR does not mean mediation!

Wed, 17 Jan 2018 07:30:00 +0000

Bill (Bill Braithwaite), posted a new item:
ADR does not mean mediation!.
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?

Tue, 09 Jan 2018 07:30:00 +0000

Bill (Bill Braithwaite), posted a new item:
Interim payments and the discount rate - have they gone up accordingly?.
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

Fri, 06 Oct 2017 15:45:00 +0000

Bill (Bill Braithwaite), posted a new item:
Centre for Policy Studies report - ignorant and one-sided.
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

Mon, 07 Aug 2017 15:30:00 +0000

Bill (Bill Braithwaite), posted a new item:
Thompsons fights back against insurers.
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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Direct line and the magic £50 million

Wed, 02 Aug 2017 08:45:00 +0000

Bill (Bill Braithwaite), posted a new item:
Direct line and the magic £50 million.
I know I've been going on about the insurance industry’s conduct since the discount rate was reduced, but it seems to me to get worse. The papers reported today that profits have soared at Direct Line, “after the impact of this year’s discount rate change on personal injury compensation payments turned out to be less severe than feared … and after personal injury claims costs also continued to ‘trend more favourably’ than expected”., the company said in interim results published today. They said in March that the reduction to the discount rate would wipe £215m-£230m off their pre-tax profits, and that premiums for young drivers could rise by up to £1,000 a year, and cost the NHS an extra £1 billion a year in compensation bills.

In fact, they posted a 14% rise in first-half pre-tax profits to £341million, “aided by the release of nearly £50m of reserves previously set aside for the discount rate change”.

I don’t remember them revealing back in March that had a £50 million reserve in advance of the discount rate announcement – perhaps I just missed it!
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Insurers inflating repair bills - will we ever find out the truth?

Mon, 31 Jul 2017 11:00:00 +0000

Bill (Bill Braithwaite), posted a new item:
Insurers inflating repair bills - will we ever find out the truth?.
According to the Telegraph this morning, drivers are being “ripped off for motor insurance”, ie being overcharged for motor cover, because insurers are using secret deals to grossly inflate repair bills. They say that insurers are routinely inflating repair costs by as much as 100 per cent, while receiving undisclosed kickbacks for the difference. The process could be creating a hidden cost of £750m, equivalent to around 5 per cent of the UK's 34 million drivers' annual insurance premiums.

If this turns out to be true, it would make a mockery of the recent publicity which the insurers have been arranging, to the effect that the method of calculating personal injury compensation (the “discount rate”) is flawed, and should be changed so that severely injured claimants do not recover as much money as they do presently.

Their carefully arranged PR has been targeted at the public, ie drivers, and has asserted that the recent change in the law will cost drivers millions or billions. That won't sit well with the notion that there may be an internal insurance scheme which is inflating claims against other insurers.

Will we ever find out the truth? Will the Government read this article, and wonder about the truth behind the intense lobbying currently being carried out by insurers against the discount rate?

Not a chance! Read more

A frightening picture for mothers to be

Sat, 15 Jul 2017 11:00:00 +0000

Bill (Bill Braithwaite), posted a new item:
A frightening picture for mothers to be.
The article in The Times yesterday about NHS litigation costs highlighted some appalling figures. One was that errors during childbirth account for 50 per cent of the value of claims against the NHS. What a frightening picture for mothers to be. Instead of spinning the anti-lawyer story, perhaps they should try to stop ruining lives by negligent management of the birth process.

What their story fails to reveal to a gullible public is that either

all those claims either went to court and were tried by a judge, who decided that the doctors and nurses had been careless in their professional lives, or
the NHS themselves had admitted, without going to court, that their staff had been careless.

Careless in this context doesn’t just mean a tiny mistake – it means that those professionally qualified staff have behaved in a way which is outside the range of reasonable management.
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NHS Litigation Service - ignorant, obdurate defendants

Fri, 14 Jul 2017 11:00:00 +0000

Bill (Bill Braithwaite), posted a new item:
NHS Litigation Service - ignorant, obdurate defendants.
I read in The Times that “The NHS paid £1.7 billion to settle negligence claims last year after a 15 per cent rise in the total that led to warnings that the cost of errors could cripple the health service. Lawyers suing the NHS took home almost £500 million of the total, up 19 per cent, a figure criticised as “disproportionate” by health chiefs.”

Naturally the paper will have made no attempt to explore the facts and reasons, but will simply have published without question the press release sent out by the NHS PR agents (I wonder what they get paid??).

My experience of the NHS litigation service, spread over many years, is that they are one of the most ignorant and obdurate defendants I come across. In the examples I see, that means that the lawyer costs ratchet up to high levels because the NHS will not behave sensibly.

They say they’ve changed, and they’ve changed the name of their litigation arm accordingly (NHS Resolution), so we’ll see if the leopard does change its spots – I’ll be amazed if it does, but I live in hope!
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City minister's discount rate comments unfair, ill-considering and ignorant

Mon, 03 Jul 2017 16:00:00 +0000

Bill (Bill Braithwaite), posted a new item:
City minister's discount rate comments unfair, ill-considering and ignorant.
In a speech recently, to the Association of British Insurers, City minister Steve Barclay said the change in the rate earlier this year “concerns me, and I know it will concern many of colleagues in Parliament …. we have been consulting on moving away from a mechanism that has grown outdated and, with negative returns on interest-linked gilts, lost its connection with the way people invest in the real world.”.

That sort of comment seems to me to be unfair, ill-considered and ignorant. How on earth does he know that it will concern many other MPs? Have they really been discussing this issue whilst the world collapses around them?

How does he know the mechanism is outdated, when a fundamental purpose of the consultation, the results of which are being considered, supposedly, is to see whether the the mechanism is out of date.

What does it matter how “people invest in the real world”. The whole point of the decision by the House of Lords, our supreme court, in 1998, was that the investors we are considering are different from “the real world” ie uninjured investors who can afford to run risks.

Also, we all know that, if you look at how severely injured people invest, and find that they take risks, the question then arises: are they taking investment risks because they want to, or because the court has forced them to do so by using an inappropriate discount rate?
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Personal injury litigation - stick or twist?

Mon, 03 Jul 2017 15:30:00 +0000

Bill (Bill Braithwaite), posted a new item:
Personal injury litigation - stick or twist?.
For many years I've considered with claimants and their solicitors whether we should press ahead for an early trial or settlement of the claim, or whether we should delay the process, for example to allow treatment or rehabilitation to take place at its own pace. Since the discount rate changed in March, those discussions have an extra spice, for two reasons. First, particularly since the General Election, it may take a long time for the Government to get around to doing something about the problem, which gives us more time to press cases ahead. Secondly, you can't help noticing all the opportunities that the insurers have wasted – fiddling about being difficult when they could have bought the claim off for far less than it’s likely to be worth now.

I would suggest that every significant claim with a future loss element should be considered afresh for a decision to be made whether it would be possible to bring it to trial before the rate changes – if it does.

Claimants need to be cautious though. Chasing the rate is of no value if the rest of the claim isn’t well prepared – which takes time.
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The importance of good brain injury case managers

Mon, 03 Jul 2017 15:30:00 +0000

Bill (Bill Braithwaite), posted a new item:
The importance of good brain injury case managers.
I've read hundreds of brain injury case management reports over the years, and they have varied enormously. In the early days (there wasn’t any recognised case management in the UK before about 1996) the reports were simple and easy to understand. Gradually they developed, sometimes, into very long tick box exercises which shed little light on the real problems, and how they were being managed.

I read one recently, though, which I thought was a model. It told me everything I needed to know, including the targets that had been, and were being, set, and how success was measured against those targets. No jargon, and a very clear picture of what was going on.

That made me think, as I have done many times before, that we litigators should demand more of case managers. They really do have to add value.

I don’t mean the above to take away from the fact that there are some wonderful case managers doing terrific jobs, but I think we need to raise the others to that level.
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Choosing the right person for ADR

Mon, 03 Jul 2017 15:30:00 +0000

Bill (Bill Braithwaite), posted a new item:
Choosing the right person for ADR.
I'm a great fan of ADR, and I had two experiences recently which highlighted how careful you have to be in choosing the ADR person.

They happened on consecutive days, so gave a great opportunity to compare. One was very poor, with little knowledge of how personal injury claims are managed in the real world. I felt that the defence QC (very good) and I could have done the job better, and in half the time.

The other one was an experienced personal injury silk, who was excellent. He knew the topic, had read the papers, and evaluated excellently.

I suspect that we are approaching the time when we will demand ADR people who are specialist in our own topics. I've thought that for a long time, but of course vested interests are very much against the idea. You can't get round the fact that, if the ADR person doesn’t talk your language, it makes the process more difficult.
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Not everyone is an expert

Mon, 03 Jul 2017 15:30:00 +0000

Bill (Bill Braithwaite), posted a new item:
Not everyone is an expert.
Still on teamwork, the management of major catastrophic injury claims is a real art. I know it doesn’t always seem so, but that might be because not everyone is truly expert.

I could give hundreds of examples, but just a few are enough.

instructing quantum experts when the claimant has not undergone or finished his or her rehabilitation
using neurosurgeons and psychiatrists as first choice following severe brain injury (they may be necessary, but that would be in the minority of claims)
letting the court set the timetable regardless of what would suit the claimant
choosing poor experts settling for too little.

Insurers and reserving properly

Mon, 03 Jul 2017 15:30:00 +0000

Bill (Bill Braithwaite), posted a new item:
Insurers and reserving properly.
There was an article in the paper recently, starting: “Motor insurers suffered combined losses of £3.5bn last year after former lord chancellor Liz Truss changed the rate which calculates deductions from compensation payments to injured people.” That looks to me like outrageous misinformation.

How can they assert that losses sustained in the year to march 2017 have been caused by a change which only came into effect on the 30th March 2017??

In any event, surely they have been foreseeing this problem over the last few years? We have all known for a long time that there has been a consultation about the rate, and that it was likely to go down. Shouldn’t the insurers, with billions of pounds at their disposal, have reserved appropriately?
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