Justice: Civil Litigation Reform

Lord Beecham Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Beecham]

My Lords, I declare an interest as an unpaid consultant in the firm of solicitors at which I was for many years a senior partner. Like the noble Lord, Lord Thomas, I am no great fan of the no-win no-fee scheme. I recall a discussion with the noble and learned Lord, Lord Woolf, on a social occasion many years ago at which I outlined some objections. He was much more confident about it. The problem is the disappearance of legal aid for so many of these claims, particularly in the realm of personal injury claims.

In a letter today in the Guardian, the president of the Law Society makes two points on which the Minister might like to comment. The first is in relation to the high costs incurred in clinical negligence claims. The president says that much of that is incurred because of the way in which the National Health Service contests these claims. It is very slow and, in far too many cases, the claims go right to the door of the court instead of seeking to settle them earlier. Savings could be made if those cases were better dealt with.

The second point relates to the thrust of the Government’s proposals today around mediation. Does the Minister agree with the president of the Law Society, or does he have a view about her comments, that mediation is suitable in cases where the parties are roughly comparable in their status, economic position and so on but much less so where there is a disequilibrium between the two parties? Is there not some danger in pressing the mediation route, as the Government seem intent to do with these reforms, at the expense of having matters properly adjudicated on with a determination that is perhaps more suitable in more cases than the proposals imply?

[Lord McNally]

My Lords, I take on board what the noble Lord has said about the way in which the NHS fights its cases. I am not sure whether I have the exact costs to hand but they are enormous. Certainly any way of making settlements easier and less costly will save literally hundreds of millions of pounds for the NHS. Certainly the lowest figure for the impact on these settlements would be £50 million a year, but many people believe it would be far more.

I agree that mediation will work in disputes only up to a point. However, many people find themselves drawn ever deeper into the litigation process, with its associated costs, when a matter might be dealt with much earlier. Mediation offers the opportunity to nip problems in the bud and to avoid the stress that can often accompany a drawn-out legal process. The noble Lord made a point about inequality of arms, and a great deal will depend on the quality of the mediator and their ability to judge these matters.

I now have the figures for the NHS. In 2008-09 the National Health Service paid out £312 million in damages, but it paid out far more in lawyers’ fees—£456 million. That is the wrong way round and it is not where the NHS should be spending its money.

I have the highest respect for the Law Society, which has an absolute duty to represent its members and to put forward its views. However, I am not sure that the invitation on its website at the moment is within the dignity of the profession. It states:

“Defending legal aid: send us your case studies … What we urgently need from you are cases studies of individuals with interesting stories that will chime with the general public. It is clear from our research that cases of medical negligence (especially obstetrics), education matters and private law family matters will resonate very well with the public. Those cases based on clients who are happy to discuss their case with the media and be photographed would be particularly helpful. High profile cases will also be gratefully received”.

That is one way of representing its members, but I would not describe it as research.