This series of articles has, so far, looked at issues arising in underlying Clinical Negligence or Personal Injury litigation that may not be familiar to the Professional Indemnity lawyer asked to bring or defend such a claim. This article looks at a slightly different subject, namely some of the issues that arise when trying to settle the professional negligence claim.
As readers will be aware, when a claimant alleges that underlying litigation has been lost or under-settled as a result of the negligence of his lawyers, the resulting professional negligence claim takes the form of a claim for “a Loss of Chance”. In other words, the essence of the claim is that the Claimant has lost the chance of a better outcome.
It is the course of the settlement process where loss of a chance principles come to the forefront, and every contingency in the original medical or personal injury action needs to be considered. In other words, the percentage chance of the Claimant having succeeded on each element of the underlying claim needs evaluating. This applies just as much to issues of breach and causation (i.e. to establishing liability) as it does to issues of quantum. A good hold on all the issues arising in the underlying personal injury claim is therefore essential in any settlement meeting.
In settlement negotiations, it is important to remember that it may be possible to show that a Claimant would not have done what he claims he would have done1 but for the negligence, or that a Claimant never had a realistic chance of succeeding in the original claim at all2. In the latter case, the Claimant has no claim for the loss of a chance. In the former case, although what a Claimant would have done, but for the negligence, is generally easier for a Claimant to succeed on, Claimants can still be pressed on this point in settlement negotiations3. Examples include the availability or not of ATE insurance at the time of the original claim4. It may be difficult for a Claimant to argue that he or she would have continued with a claim where prospects were felt to be sufficiently poor that ATE could not be obtained at the time to fund the claim.
When assessing loss of a chance principles in settlement negotiations, remember also that medical science moves on. Not infrequently it can be shown that a Claimant never suffered from what he claimed to have suffered from in the original claim, or that the prognosis is now quite good. Contingencies such as the above can affect significantly the parameters of any settlement negotiations. The extent to which new expert evidence may be adduced to show that the Claimant does not suffer from the injury originally claimed in the personal injury litigation is a matter of some controversy, which is due imminently to be resolved by the Supreme Court5.
Furthermore, settlement nearly always proceeds on the basis that there will be some percentage discount for any contingency that is uncertain, albeit in lost litigation scenarios, those contingencies tend to be resolved in the Claimant’s favour6. Remember also that any damages are assessed at the time of the original trial. This is fundamental in settlement negotiations given the substantial changes in the discount rate which historically has been more favourable to defendants7.