Apology accepted

In October 1999, news began to emerge from the Royal Liverpool Children's NHS Trust, otherwise known as Alder Hey Children's Hospital, that the organs of hundreds of children and non-viable babies had been retained following hospital and coroner post mortems, without the knowledge or consent of the next of kin.

The factual circumstances, which unravelled thereafter, culminating in The Royal Liverpool Children's Inquiry Report, published on 30 January 2001, far exceeded our worst expectations. It is bad enough for a parent to suffer the emotional trauma of losing a child, but to then discover that their children's internal organs had been systematically removed and retained at post mortem would be for most of us almost too much to bear.

Add to this the time it took to obtain cogent information from the hospital and the University of Liverpool, which had also become embroiled in the scandal, the factual inaccuracies in the information and the soul-destroying obligation upon many parents to undertake second, third, and in some cases fourth, funerals following exhumation of their children's graves, and you have the background against which the Royal Liverpool Children's Litigation commenced in the summer of 2000.

In this context, the success in mediating the litigation becomes even more remarkable: remarkable due to the willingness of the families to seek a compromise, with the primary objective of enabling them, as far as possible, to move forward and seek an element of closure.

It was following the cases, both in 2002, of Cowl & ors

Plymouth City Council and Dunnett

Railtrack that discussions were entered into with the solicitors acting for the Royal Liverpool Children's NHS Trust and the University of Liverpool to explore whether the parties were willing to discuss a compromise, not only in financial terms, but, through mediation, to explore non-financial terms, which for the vast majority of the parents was the primary objective for embarking on the litigation in the first place.

Preliminary discussions took place between March and June 2002, under the auspices of the Centre for Effective Dispute Resolution, and the mediation talks were set to take place, between 25 and 27 September 2002.

One of the many difficulties faced by the claimant lead legal team – which included myself for Goodmans as lead solicitor and a steering committee made up of Jonathan Green of Brewer Harder & Rowe, David Rudd of Walker Smith & Way and independent consultant Mark Mildred, led expertly by Stephen Irwin QC of Doughty Street Chambers, Robin Oppenheim, also of Doughty Street, and Scott Donovan of Atlantic Chambers – was how to incorporate the wishes and manage the expectations of some 1,200 emotionally charged individuals into the mediation process.

The claimant steering committee decided to establish a focus group of parents, which would represent a broad cross-section, not only of the factual circumstances of the claimant cohort, but also the various stark differences in the manner in which the parents had been both psychologically and physically affected.

An invitation was extended to all claimants to determine whether they wished to be considered as potential focus group members. Once the parents had confirmed their positions, an extensive screening process was undertaken by the claimant steering committee, and 10 individuals were asked to be present to represent the views of the claimants.

One of the fundamental reasons for establishing a focus group and asking a limited number of parents to endure the mediation process was that we considered it imperative that the legal teams were reminded of the human aspects of the litigation. This was critical, bearing in mind that an essential part of the mediation process was to try to secure non-financial redress.

Throughout the summer of 2002, there appeared to be very little progress, with all parties maintaining their entrenched positions. Put simply, the defendants' position was that there was no ownership in the body, and as a consequence no negligence and thereby no liability flowing from the alleged acts of a number of pathologists, irrespective of whether or not they were hospital or coroners post mortems.

What made this litigation stand out was that, irrespective of the legal rights and wrongs, there was an overwhelming view that what had occurred was morally reprehensible – a view shared not only by the parents/claimants, but by the vast majority of staff at Alder Hey and the University of Liverpool, as well as by the public at large.

But it would be too easy to assume that simply because the claimants had the moral high ground and the backing of public funding, the defendants would be reluctantly forced into a compromise. To reach such a conclusion would be to do an injustice not only to the claimants, but also to the defendants, and in particular the Royal Liverpool Children's NHS Trust, as it became apparent leading up to the mediation and during the mediation itself that there was a real desire to bring the litigation to an end – for the benefit of both the families and the hospital. It was this willingness on both sides to reach a resolution and move forward that proved to be the catalyst to achieving the mediated settlement.

It was one thing to secure an offer of settlement, but another to secure the acceptance of the terms of settlement from the wider cohort, bearing in mind only 10 out of nearly 1,200 claimants attended the mediation discussions. It is quite clear that, had the defendants only offered a financial remedy, the litigation would not have concluded. The offer of seven non-financial remedies, including a press conference, letters of apology and a plaque being erected at the hospital, were without question the key to the parents accepting the offer of settlement. Even now, it is remarkable to consider that the acceptance rate was just short of 99 per cent.

Could this settlement act as a blueprint for future multi-party action litigation? In light of the imminent changes as to how clinical negligence claims are to be litigated, provided there is a real willingness from both parties to look beyond financial redress, mediated settlements ought to be achievable in most, if not all, cases.

Ian Cohen is head of clinical negligence at Goodmans Solicitors