Mr. David Barniville:

I will respond, first, to Deputy Kelleher. He made a telling point, that there needs to be a mindset change generally. Litigation is generally adversarial. There are some cases, however, in which it certainly merits consideration that it be less adversarial.

Fundamentally, two things play in to this in these kind of difficult cases. The first, a point on which we all are agreed at this table and on which there was substantial agreement on Thursday, is there should be a statutory duty of candour. It works elsewhere and the experience so far elsewhere has been positive on that.

The second, another point raised by Deputy Kelleher, is the use of mediation and alternative dispute resolution. It is used in medical negligence cases, but not enough. It should be encouraged to be used much more often than it is. It is something that was addressed in the second two reports of the working group on medical negligence, Mr. Justice Quirke's and Ms Justice Irvine's reports. From the Bar's point of view, mediation affords the sort of facility for people's grievances to be aired and resolved in a way that is generally much more effective than open court. For those reasons, we have been encouraging people to train as mediators and we have been generally trying to ensure that there is a greater use of mediation, and we feel there is greater possibility for mediation to be used in these cases.

Turning to Deputy Ó Caoláin's questions, the first point touched on the question of the statutory duty of candour and whether mere encouragement would be sufficient. The Bar Council does not believe that mere encouragement is sufficient. We think that there should be a statutory duty. It should be enforced that way and it should underpin the professional and ethical duties that are already there.

On Deputy Ó Caoláin's next point, he mentioned seeing cases where he was appalled that they could have been run and how they could have been defended for so long.