Reviewed by: Eduardo Reyes
Author: Frank Furedi and Jennie Bristow
Publisher: Centre for Policy Studies
Price: Free to download

The Social Cost of Litigation is an interesting read, even though it contains very little that is ‘new’ on the topic of the UK’s ‘litigation culture’. For sociologist and social commentator Frank Furedi, and co-author Jennie Bristow, this Centre for Policy Studies paper is a walk around their usual block – both have published on this theme before. But this outing is timed to get more attention than usual.

Published on a day when government has announced an end to many safety inspections on businesses, and the new justice minister Helen Grant reiterated the government’s view that criminal injury compensation payments are too high, it is the timing and political positioning of this paper that is important.

There will be lawyers who say there is little new here. But it is Furedi, not them, who got a fairly easy-ride interview on the Today Programme as the UK headed back to work. The paper is focused on health and education, and means to ‘alert policymakers and public to the non-quantifiable but nevertheless destructive consequences of litigation culture’.

There is a liberal use of anecdotes, often ending in a public officials expressing surprise that someone decides not to make a claim, because everyone else does.

The statistics quoted are mostly available elsewhere. Many of the footnotes are citations for news reports and NHS Litigation Authority factsheets. There are also the results of a few FOI requests.

The authors support no-fault compensation for public bodies, and of course there are credible arguments for and against this option which have played out over the past few decades. Away from the apparently imperfect handling of some data in this report, it remains a debate worth having.

The apparent misreading of the relevant health litigation data feels like a problem though.

The assumption is that unless it ends up in court, it somehow was not proper litigation. Time and again it is noted that ‘only… (3.2%) have had damages approved or set by the court’, whereas ‘28,700 settled out of court’. ‘Out of court’ is conflated with ‘behind the scenes’, as if the amounts involved will not reflect any quantified harm – or indeed that the defendant had simply recognised the strength of the other side’s case.

These do not fell like strong points. Evidence on general personal injury claims is used to support points made on medical negligence – and so it goes on.

All this has the effect of focusing attention on other dramatic, yet loosely supported assertions – such as the one that ‘innovation’ in health care is being stifled. Many people would want, and lobby for, an innovative treatment when faced with poor odds – but successful claims in this area do not, for example, have an ‘innovative’ obstetrician as part of their back story.

Of greater interest is the, still highly arguable, assertion that medical ‘best practice’ is now equated with the absence of litigation and ‘having checked all the boxes in a quality assurance form’. One would think that academic ‘peer review’ was a necessary part of the picture here.

The chapter on education and schools is even more heavily anecdotal. Information for claims in one year for injuries to children amount to £6.7m, the authors think. Furedi is further critical of teacher unions’ support for injury claims where injury resulted from ‘normal’ activities. The small number of education and school entry criteria cases is also cited.

For the curious reader there is one topic that seems worth following up. In both health and education, the authors believe that liabilities could affect the desired operation of outsourcing agreements with new publicly funded providers.

It is one of the points that will grab the attention of policymakers. Given the centrality in government policy of independent and private organisations providing public services, it would not be a surprise to see a government that accepted the arguments in this report take action.

Furedi and Bristow draw heavily on anecdote, including personal anecdote, to support their arguments – each story’s significance is enhanced, as it can be said to be ‘symptomatic’.

But for all its faults, this paper is meant draw attention to the arguments to makes, and it has done just that. It cannot be dismissed simply because it lacks the heft of the Woolf Report or the Jackson Review. The narratives in this report have political traction, and opponents will have to engage with its arguments on the political terrain – a terrain where experience shows it is not enough to be ‘right’.

Overall I read The Social Cost of Litigation from a public policy standpoint – from the perspective of someone who has spent 15 years viewing the arguments put forward on all sides of these important debates.

But there is also plenty here that does not ring true from personal experience. On health, through five years of extensive and complex medical treatment for my youngest daughter, at no point in any of that did I feel the laws around clinical negligence had a chilling effect on professional authority.

And in education, my eldest daughter comes home from school with tales of the cuts, bruises, fights, broken bones and general mayhem that has been the standard-issue of childhood since our distant ancestors crawled of the unlitigated swamp. Goodness, her class even goes on a two-day adventure holiday later this year.

I am left wondering why my experience is supposedly not symptomatic of our society, whereas the anecdotes selected by the authors tell us all we need to know.

The Social Cost of Litigation is free to download. For anyone with an interest in these topics, I recommend reading it.

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