NHS Redress Bill [HL]

This is a technical set of issues. Amendment No. 37 would enable civil proceedings to be commenced in two specific circumstances, even though a waiver of the right to bring such proceedings had been signed as part of a settlement under the scheme. These two circumstances are where the severity of the injury has increased in a manner not foreseen at the time of the settlement and where a further injury or loss has arisen that may constitute a separate liability. It is intended that where an offer under the scheme is accepted, a settlement agreement will set out the detail of the offer of redress. Before a person enters into such a settlement agreement, it is also intended that he or she will have been entitled to free and independent legal advice which will advise them on whether the offer is reasonable and equivalent to what they would have received through the courts. If they are advised, for example, that there may be uncertainty over their future prognosis and that the offer of settlement may not take adequate account of this, it will be open to them to reject the offer of settlement under the scheme and seek redress through the courts. It may be that this would also be the type of case where it would be appropriate for the scheme to provide for a jointly agreed independent expert to be appointed in reliance on the powers in Clause 8(1)(b). In this respect an applicant under the scheme will be in a very similar position to a person who is made an offer of settlement after the commencement of court proceedings. They will have to weigh up all the factors on the basis of appropriate advice and decide whether or not the offer is one which they wish to accept. Claimants in civil proceedings do not generally get a second bite at the cherry—settlements are usually in full and final settlement. Why should acceptance of offers under the scheme be any different, especially since rejection of an offer will not affect a person’s right to take civil proceedings? In relation to the second set of circumstances, the settlement agreement under the scheme will include a waiver of the right to litigate only in respect of the liabilities to which the offer of redress relates. If a court found that there was in fact a separate liability, this would not be covered by the waiver in any event. I hope that clarifies the situation for the noble Earl.