Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Hunt of Wirral Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Hunt of Wirral]

My Lords, I declare my interest as a partner in the international commercial law firm DAC Beachcroft LLP and the other interests that I declare in the register. However, I would like to return to the speech of my noble friend Lord Thomas of Gresford, with whom I have previously worked. How right he is to criticise the changes that were introduced to the no-win no-fee system which made it exceedingly complicated but also benefited a number of groups, to which I will refer in a moment.

I also worked closely with him on the Legal Services Bill, to emphasise the need for access to justice. In that context, I want to refer to the recommendations of Lord Justice Jackson and to declare an interest in my pride at having been one of his original assessors. Lord Justice Jackson was set an almost impossible task by the Master of the Rolls. I recall that he was asked to find the best way of tackling the present unacceptable level of litigation costs and promoting access to justice at proportionate cost. I doubt whether anyone else could have produced a report which would have been received by the Master of the Rolls with the comments that it was,

“clear and comprehensive in its coverage, thorough and fair in its discussions and imaginative and realistic in its proposals”.

I strongly support those recommendations, but remind your Lordships that Sir Rupert started with a blank sheet of paper. He then spent four months gathering evidence and a further three months in consultation, before examining that evidence, balancing all the special pleading that was introduced by various vested interests, and coming up with recommendations which were firmly in the public interest. It is that balance which we must insist we keep in view throughout the passage of the Bill in this House.

What Sir Rupert Jackson said—and I remind the noble and learned Lord, Lord Davidson, of this—was to advocate the return of the no-win no-fee system that was originally introduced in 1995. I take this opportunity to praise the work of my noble and learned friend Lord Mackay of Clashfern, who as Lord Chancellor steered those reforms into law.

This is now very much his view of how litigation should be funded, and I thought, until the noble and learned Lord spoke from the opposition Front Bench, that it was based firmly on his Scottish roots. The system which the noble and learned Lord, the then Lord Chancellor, introduced and which Sir Rupert now advocates, is still no-win no-fee. It worked perfectly well, both for the severely injured and for those with lesser injuries. It also worked in other areas of law, such as human rights litigation and insolvency. It was never intended to be like the US style of contingency fees. Although Sir Rupert advocates the introduction of contingency fees, that certainly does not mean that we are introducing a US-style litigation culture as a consequence.

I do not think that there is anything in the idea of the client contributing towards the costs incurred on their behalf that would be against the established principles of our English legal system. Historically, there has always tended to be a difference between the cost which any litigant could recover at law from the opposing party and the total cost that they were liable to pay their own solicitor. Of course, there is a great debate about whether we have a compensation culture in this country, but Sir Rupert clearly thought that our legal costs culture had gone too far and, for my part, I strongly agree with him.

I shall give one example, which has been given in another place by Mr Straw and was referred to by the Lord Chancellor. At present, over 570,000 people present claims for whiplash. That is up 32 per cent in the past three years. That is the equivalent of one person every minute of every hour of every day. The number of such claims notified increased by 72 per cent between 2002 and 2010 against a background of a reduction of 16 per cent in the number of car accidents notified to the police in the past three years. Criticisms have been voiced of Part 2 and Sir Rupert Jackson’s work. Referring for a moment to the Transport Committee in another place, when dealing with referral fees, it made it quite clear that the system had gone wrong because substantial fees were now being paid to,

“insurance firms, vehicle repairers, rescue truck drivers, credit hire firms, claims and accident management firms, law firms and medical experts”.

How on earth can anybody be complacent about a system that has brought that about?

All I would say to my noble friends is that we have to listen critically to any claims from any vested interests here, but let us concentrate on the hard facts as, indeed, Sir Rupert did in his excellent report.