Examination of Witnesses (Questions 100-106)
DAVID FOSKETT
QC AND STEPHEN
WORTHINGTON
13 DECEMBER 2005
Q100 Chairman: Do you think it is
harder to reach settlements in defamation cases because of the
instances of CFAs?
David Foskett: I simply could
not tell you. I simply have no personal experience of that.
Stephen Worthington: I do not
know either. All I can say is that it does not seem to be a deterrent
in ordinary personal injury cases. Indeed, in many cases, it seems
to be advantageous to an insurer to settle early because, as you
heard, for example, in simple RTA cases, the mark-up which is
permitted by the various protocols goes up the closer you get
to trial. For example, a claimant whose case is settled at an
early stage, his solicitor will get only a 12½% mark-up,
but if the insurer fights it to trial and loses the mark-up is
100%, so, there, there is certainly an indication for early settlement.
Q101 Chairman: That system could
be applied in defamation?
Stephen Worthington: Yes, but
I would repeat what David said, neither of us is an expert in
that field.
Q102 Chairman: It is not necessarily
a bad thing?
Stephen Worthington: No.
Chairman: Let us turn to NHS Redress.
Q103 Barbara Keeley: In the discussion
earlier, we said that the Bill does not provide details of the
scheme, so if any of these questions go into areas where we do
not have details we will understand. What safeguards do you think
are necessary in the Bill, or in fact in subsequent regulations,
to ensure that potential claimants are not pressured to agree
settlements which are not reflective of what they would have been
awarded in court?
David Foskett: I think the short
answer to that is independent advice, both legal and medical,
at an appropriate time, and by that relatively early in the procedure.
Like everybody, I am sure we shall just simply be saying that
there is not very much detail at present and when we see the nuts
and bolts we will be able to give a rather more definitive view.
I think, in terms of the barrister's general position, there must
be independent advice on both counts at an appropriate stage to
ensure that the claimant is properly advised.
Stephen Worthington: I think,
as was said earlier, the crucial thing to make a scheme like that
work is consumer confidence, and in order for the consumers to
be confident I think they have got to feel (a) that they understand
they are not precluded from going to court if they choose to do
so, and (b) that they have access to independent legal advice.
Q104 Barbara Keeley: Thinking about
consistency in quantum of offers, if that is to be ensured, do
you think it would be helpful for the NHS Litigation Authority
to publish tariff criteria?
David Foskett: It might be. As
you may or may not know, in ordinary personal injuries cases now,
the Judicial Studies Board issue some guidelines, they are not
binding but they do assist practitioners to advise people about
what their claim is worth and assist the judges in determining
what their claims are worth. That kind of set of guidelines might
well be useful.
Q105 Barbara Keeley: Do you anticipate
a role for barristers, for instance, who often provide advice
on quantum in injury cases? The NHS Redress Bill clearly does
anticipate some independent legal advice on the process and I
just wonder if you foresee a role for barristers in that?
Stephen Worthington: That may
well depend on whether or not the solicitor who is initially instructed,
if instructed, is a specialist. If he, or she, is a specialist
then there may be no role for the bar. On the other hand, something
which perhaps sometimes is overlooked, the bar is frequently a
lot cheaper than solicitors, particularly down at the junior level,
but if you want a specialist barrister to give an opinion on quantum
you may be able to do that more cheaply by going to the bar, a
bar solicitor, than if you go and ask for a solicitor to do it
all on his, or her, own.
Q106 Barbara Keeley: One detail which
does seem to be there is examples are given, in Clause 3, about
future remedial care which may be settled, in terms of a level
of compensation being settled for that aspect. Do you think there
are going to be difficulties around that aspect of the Bill?
Stephen Worthington: It is something
which the courts are already wrestling with, with periodical payments,
because under the relatively new periodical payments regime the
court has to ask itself the question as to what a severely injured
person's care needs may be into the future and how they should
be catered for, whether by a lump sum or, under periodical payments,
by so much per annum. The knowledge in that area is fairly sparse
at the moment because, as I say, it is a fairly new regime. I
think the courts will be able to deal with it and I think, under
a regime that is being suggested under the Bill, it ought to be
possible too.
Chairman: Thank you very much indeed.
We are very grateful for your time and the care and frankness
with which you have answered the questions. Thank you very much.
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