JMX (a child by his mother and litigation friend, FMX) Claimant - and – Norfolk and Norwich Hospitals NHS Foundation Trust [2018] EWHC 185 (QB)

Mr Justice Foskett

Interesting comment on the nature of assessing litigation risk in the context of Part 36 offers and in mediation from a judge who was a mediator.  Mr Justice Foskett said (para 12) the following:

"How one side perceives the risks in a piece of litigation (whether in the clinical negligence sphere or any other sphere) will almost invariably be different from the way the other side perceives them. Quite often in my experience as a practitioner and, more particularly, as a mediator, a settlement of a case was achieved when there were widely differing views of the risks on both sides. Settlement did not require a meeting of minds on the nature of the litigation risks of each side"

At paragraph 18 Foskett J also reiterates the privileged nature of without prejudice negotiations.