For clinical negligence and personal injury lawyers, hard-nosed negotiating skills can be just as important as advocacy. In a case on point, a seven-figure settlement was negotiated on behalf of a profoundly disabled 12-year-old boy.
The boy was alleged to have suffered oxygen starvation during a brief period prior to his hospital birth. When legal action was taken against the NHS trust that ran the hospital it was met with a resolute denial of liability. The trust considered that it had a strong case that negligence played no part in the boy's injuries.
Following protracted negotiations and mediation, however, the trust offered a £2 million lump sum to settle the boy's claim. It was acknowledged on behalf of the boy that that was a fraction of the compensation he would have been awarded had the trust been proved liable for his injuries after a contested trial. It was, however, a life-changing sum of money.
Given the acute litigation risks involved in a trial – it was an all-or-nothing case – the boy's parents were anxious to accept the trust's offer on the basis that a bird in the hand is worth more than two in the bush. In approving the settlement, the High Court noted that it was not unreasonable for the parents to take a risk-averse approach to their son's case. The trust's offer was perhaps lower than it might have been, but it was rational to accept it.
