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Clinical Negligence and the NHS Refusal to Structure Settlements with Profit

This article examines the wider context of recent litigation which challenged the form in which damages for personal injury are paid. It focuses upon a test case that is of particular importance to claimants severely injured as a result of clinical negligence. R v Liverpool Health Authority et al ex parte Hopley involves judicial review of a Health Authority's refusal to pay damages via a structured settlement based on a with profits formula rather than one linked to rises in the Retail Prices Index. To what extent could the reasons for refusing such a settlement be held up to judicial scrutiny, and the relative merits of the different forms of structure be evaluated? Could the claimant question the excessive paternalism and selfinterest, which were alleged to lie behind the Authority’s decision? In examining different forms of structured settlement this article highlights major issues relating to the future of the damages award. It discusses the burden of litigation costs currently being faced by the NHS. Finally, it considers the reforms being contemplated by the Lord Chancellor’s Department and others, some of which are to become law when the present Courts Bill completes its Parliamentary stages.