Whilst most dental negligence claims settle without reaching court, negotiation can sometimes become “deadlocked”. Mediation can, in selected cases, be a valuable ADR method to bring about a successful resolution or at the very least narrow the issues. It can also create innovative solutions, cost savings and a speedier outcome than protracted litigation in the right case.
A party which unreasonably refuses to engage in mediation may face costs sanctions and it is now established that silence in the face of an invitation to mediate will generally be seen as an unreasonable refusal.
In Ramdhean v (1) Agedo (2) Forum Dental Practice 27 April 2020, ( a dental negligence claim), HHJ Belcher, sitting at Leeds County Court was invited by the Claimant to consider the matter of the Second Defendant’s failure adequately (or at all) to engage with mediation when making an order for costs pursuant to an earlier contested hearing. That hearing had considered the preliminary matter of whether the Second Defendant owed the Claimant a non-delegable duty of care or was in the alternative vicariously liable for any negligence on the part of the First Defendant which might be established – (the second defendant was found to be liable on both bases – click here to see my explanation of the reasoning as to why).
In relation to the Second Defendant’s failure to engage in ADR, specifically mediation, the judge derived assistance from the judgment of Lord Justice Briggs in the Court of Appeal decision in PGF II SA v OMFS Company 1 Ltd  EWCA Civ 1288 . Lord Justice Briggs points to the ADR handbook, first published in 2013, which sets out at length in paragraph 11.56 the steps which a party faced with a request to engage in ADR, but which it believes it has reasonable grounds for refusing to participate in at that stage, should consider in order to avoid a costs sanction. The overall summary of the steps is that what is called for is “…constructive engagement in ADR rather than flat rejection or silence.”
Finding that the Second Defendant had not engaged constructively, HHJ Belcher acceded to the Claimant’s request for payment on account of costs in respect of the preliminary hearing, despite the fact that the definitive issue of negligence had not yet been decided.
I have recently been involved in two dental negligence cases which successfully employed mediation to resolve the claims.
In the first, the claimant was a “celebrity”. Both parties were very keen that confidentiality be maintained at all times. Mediation was the ideal solution for both the claimant and the defendant dentist.
In the second, a retired defendant rather unusually did not appear to have adequate “run-off” indemnity cover and was faced with the prospect of having to fund his own defence. Understandably keen to contain costs, mediation provided the opportunity for a relatively early resolution with which the claimant was satisfied.
As a mediation advocate in this scenario, I am able to combine my expertise as a barrister with my detailed understanding of the dental issues, both clinical and practical, in order to represent my client during principled mediation negotiation.
Contact Heather Beckett
Instructing solicitors are warmly invited to contact Heather at Goldsmith Chambers firstname.lastname@example.org:
Telephone: 0207 353 6802