What I have said should not be taken as a total apologia for the present system. There are many difficulties, one of the major difficulties is that a court awards a lump sum based upon the probabilities of the evidence as to the future course of a plaintiff's injury. Should a plaintiff make a better recovery than expected then a defendant cannot return to court and say that the plaintiff was over compensated. Similarly, should injuries persist resulting in a longer than expected time before recovery or indeed result in no recovery at all, then the plaintiff would be left under compensated and cannot similarly return to court and, Oliver Twist like, ask for more.
In significant medical negligence cases this problem can be more extreme and serious injustice caused if, for example, as has happened the damages awarded by a court are prudently invested but the fund runs out as the damages were calculated to be invested at an expected return that was much more generous than proved possible. This problem has potentially been dealt with by the Gill Russell case referred to above but it is possible that that case may have produced an over hopeful view as to the future real rate of return and the figures may have to be revisited. As stated above in England and Wales the real rate of return on investments is now a minus figure. On the other side, if a plaintiff was presumed to have a future life expectancy of say thirty years but died after five years, there would be an undeserved windfall for the family of the plaintiff who would be entitled to the residue of the damages.
To overcome these difficulties a system of Periodic Payment Orders was introduced in the case of catastrophic injuries in 2018. This system itself is not without difficulties and is over cumbersome. As far as I am aware defendants now, if they are negotiating by way of settlement any periodic payments, insist that the full complexities of the 2018 Scheme be incorporated in that settlement. This is unnecessary as parties can agree any reasonable settlement among themselves. A Periodic Payment Scheme may involve appearances in court every three or five or seven years with resulting multiple intrusive examinations of the patient every three five or seven years. It would also result in further costs being incurred every time the case is re-mentioned. Accordingly, some defendants dislike the scheme and indeed some plaintiffs who also prefer to have payment on a once off basis. However, a Periodic Payment Scheme, if the difficulties can be overcome, is especially helpful in cases where there is a divergence of opinion as to the future life expectancy of the plaintiff. Similarly, if the case is taken while a plaintiff is five or six years old significant differences in the level of care might result when that person reaches their teenage years. It is best that courts do not speculate as to what differences might be but rather have at a later date the actual evidence before them.
The costs of litigation, especially medical negligence cases and more especially those involving catastrophic injuries are, of course, a major problem. These actions are very expensive for a solicitor for the plaintiff or indeed for the defendant to mount as they will require a number of experts usually from out of the jurisdiction in relation to liability and further experts in relation to care, aides and appliances and future therapies to be engaged.
Of course should a plaintiff fail in an action he may well be liable to pay the defendants costs. Accordingly, actions cannot be taken without the benefit of a strong supportive medical report and any plaintiff or their family has to be advised by their solicitor as to the risk of failure.
All litigation, and especially medical litigation, is very expensive. This is why it is in everyone's interest that claims are, where possible, settled at an early stage. This is why a mediation scheme should be encouraged. However, it should also be pointed out that in recent years the legal costs allowed on taxation has been reduced and it should also be remembered that in England and Wales the legal costs allowed to lawyers in contested negligent actions are significantly higher than they are in Ireland.
To meet the problem of legal costs there has been a significant and welcome growth in mediation which has often resulted in an early settlement of claims without going to court. I am sufficiently long in the tooth to wonder could not many cases be equally amicably settled by counsel on both sides meeting and settling without the benefit of a mediator whose costs have also to be paid but I am advised by people whose views I accept that mediation is beneficial in many such cases especially where emotions are running high and more especially in medical negligence cases.
Any settlement especially early settlement is to be welcomed as the courts are simply not resourced with sufficient judges or staffed to handle the number of cases listed each day unless a significantly large percentage are settled by agreement. Once a case is opened in court and evidence is given it is much more difficult to resolve the issues amicably as the parties are sometimes wounded by a public ventilation of issues.
It is with this in mind and also to save court time, that in some cases I have set in place a scheme of alternative dispute resolution (ADR). In particular, a largely successful scheme has been established in those cases taken against the De Puy in respect of allegedly defective artificial hips. This ADR scheme results in a paper determination by a senior counsel or retired judge. Either side may reject the award and proceed to court.
Such a scheme requires the cooperation of both sides and is only suitable in cases such as the De Puy hips where before any case was resolved in court by judicial determination it was reasonably clear that the defendants knew that those persons who qualified for the scheme were likely to succeed were the matter to proceed to court.
Such an ADR scheme has unfortunately no place where there is no consensus in relation to liability, as for example the Cervical Cancer Cases as in these the defendants can make the case that even if the original screen was incorrectly read, this was done without any legal fault or negligence in accordance with the Dunne principles. Accordingly, when in response to a largely misinformed and very unhelpful tidal wave of public fury when these cases came to light, the Government established after the Meenan Report a system of hearing such cases outside court under Ms. Justice Irvine, such a scheme does and indeed must involve Ms. Justice Irvine or her panel hearing evidence and the examination and cross-examination of the witnesses including the claimants. Availing of this scheme may have attractions for those who do not want publicity. The scheme is in response to a Government promise that a system for resolving these disputes outside court would be established, however the non-court system dealing with these cases will have to decide them in accordance with Law and the Dunne principles in precisely the same way as would a court. Furthermore, as must be the case, under the scheme there is a right to a full appeal by either side to the High Court which might result in merely a second layer of forensic examination for the claimants and indeed a further layer of costs.
The scheme established does of course have the right to automatic anonymity and all evidence is heard in private. There is, however, scope for the courts at present where the health of any witness would be interfered with by their identification to order non-publication of their names. This right has been upheld in favour of claimants in the cervical cancer cases by the court. It would have been open to the Oireachtas to direct that all of the cervical claims cases were to be held in private should they have wished. It remains to be seen what affect the non-court scheme under Ms. Justice Irvine will have and I wish it well.
These cervical cancer claims require either a court determination or a finding under the new scheme. If liability is an issue the same questioning of the same witnesses will be required. There is in my view no other solution to these claims. If, for example it as has been urged the HSE were to admit liability to all cervical check patients and then sought to recover from the laboratories, the HSE would be in precisely the same position as the plaintiffs and would have to prove that the laboratories were negligent in any action against them. The likelihood is, as seen in the Scally Report that many of the misreadings occurred without negligence. Should the state compensate all persons whose slides had apparently been misread, without any establishment of liability, then in those cases the state would have gratuitously expended public money, probably millions of Euro where they had no liability to do so and where they could not be reimbursed by the laboratories.
The best way to minimise costs in those cases which cannot be settled or mediated at an early stage is to get the cases to trial in court as speedily as possible without any unnecessary interim applications. Many judges like to indulge in "case management" believing that judges rather than the parties are best equipped to bring cases to trail efficiently. In tort litigation I am profoundly of the view that that is mistaken. I believe this sort of judicial thinking is an example of the famous judge's disease or crititis. All judges inevitably will suffer from crititis sometime or another. It is reflected in a view that somehow or another a judge has a function other than to decide the case in front of them on its merits. We all tend to take our job to seriously. We all tend to suffer from crititis caused by years of being exposed to '"may it please you" from the barristers in front of you. The aim of every judge must be to reach retirement before the crititis has become full blown critomania!
I believe that the minimum amount of pre-trial procedure is the most economic way of proceeding and resorting to case management merely serves to massage certain judges' egos. With a minimum amount of goodwill many cases can be brought to trail very speedily. If there are sufficient judicial resources granted, then there is no need for any backlog in cases and trial dates up to this year can be given to any case that is ready within a matter of days. Where urgency requires it the most complex of cases involving major issues of liability causation and damages can be brought to trial and have been brought to trial within a matter of a few months or in some cases weeks from the plaintiff entering the solicitor's office.