Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Newton of Braintree Excerpts

Monday 30th January 2012 Lords Chamber

It would be welcome if the Government were to welcome all these. I anticipate that that will not be the Minister’s response, but it may be that, on further consideration, some of these categories of case would evoke more sympathy, and possibly a modification in the Government’s stance, than others. For that reason, I invite the Minister, if not today then later, to peruse the menu with particular care and maybe select some, if he cannot select all, of these improvements, as we would regard them, to the scheme that the Bill lays out.

[Lord Newton of Braintree]

My Lords, I wonder whether I might come in briefly, not least because of the reference to the later amendment of the noble Lords, Lord Alton and Lord Wigley, and others that is acknowledged to be related to asbestosis, which in effect is raised by one of the amendments in this group. I hope that the noble Lord, Lord Alton, will understand. I had indicated that I might speak in support of his amendment but I hope that he will take this as a speech in support; I do not expect to be here if this drags on as it looks like doing. Am I allowed to say that kind of thing?

The main thought that occurred to me was—I say this before coming more positively to the noble Lord’s amendment—that this and the two subsequent amendments look to me like a pretty scattergun approach. By the time I had read through them over the weekend, there appeared to be almost nothing that noble Lords on the Front Bench opposite were not seeking to exempt, and on a very wide front. I would like to know, for example, what Amendment 121 means by “physical or psychological injury”. We can all understand what is meant by death, but “physical or psychological injury”, which I think is referred to in that amendment—I hope I have got this right—appears to be of a breadth that could cover anything from a cut finger to hurt feelings when someone was nasty to you, and I am not aware of a definition of “physical or psychological injury” that would narrow it. If I am wrong about that, no doubt the noble Lord, Lord Beecham, will tell me. Some of his other amendments are more closely defined and relate, for example, to definitions in the criminal injuries compensation scheme. If he wishes to intervene, by all means he may, but I thought that this was a blunderbuss approach.

[Lord Beecham]

Well, I am sometimes guilty of blundering, but a good example of psychological injury would be post-traumatic stress disorder, which is not at all uncommon in the case of severe accidents. That is the sort of territory. This is a fairly conventional term in personal injury litigation.

[Lord Newton of Braintree]

As a non-lawyer trespassing with great trepidation into this lawyers’ paradise territory I am prepared to accept that, but to a layman “physical or psychological injury” as a definition of any serious kind would cover pretty well anything. If I am told I am wrong then I will accept that, but at the moment I think it is in doubt.

Having made that point, which will indicate that were there to be any question of pressing some of these amendments to a vote—I understand that there is not—then my noble friend on the Front Bench will be thrilled to hear that I would not be minded to support them, I turn to the more positive point about Amendment 156A and the amendment later on of the noble Lord, Lord Alton, relating to asbestosis. I have some experience of claims relating to that disease—or rather to mesothelioma, the form of cancer to which it often gives rise—in my capacity as both Minister for Disabled People and Minister for the industrial injuries compensation scheme, and latterly as chairman of a hospital sometimes concerned with these respiratory diseases. I think there is a real case for wondering whether we should not maintain assistance to that group of people.

There are two reasons for that. One is that this condition is what you might call very slow burn. Exposure to asbestos that occurred very many years ago may give rise much later to mesothelioma, one of the nastiest forms of cancer. In consequence, there could be significant difficulties in proving the causation. Therefore, there is a case for making sure that legal aid is available in such cases. The nature of this disease and the problems associated with it also make a strong case in ordinary human terms for ensuring that people who have contracted it through no fault of their own as a result of something that happened during their employment should be helped to establish whether their employer could be held liable for that, or, indeed, whether they should get compensation in any other way. Therefore, I hope my noble friends on the Front Bench will not consider that this amendment would have a scattergun effect but that it is well targeted and deserves careful consideration. I hope that the noble Lord, Lord Alton, will make his case alongside mine in an hour or two or whenever we reach the relevant amendment.

[Lord Alton of Liverpool]

My Lords, I wish to intervene briefly to support the terms of the amendment spoken to by the noble Lord, Lord Bach, specifically on industrial-related injury such as mesothelioma—the issue to which the noble Lord, Lord Newton, has just alluded. We will debate that whole question later but it is worth reinforcing the point that 30,000 people have died of mesothelioma over the past 30 to 40 years and that 60,000 more people are predicted to die of this terrible disease in due course. From the time of prognosis to death, the period which elapses is usually about nine months. Whatever else, it is obvious that this is not a group of people who can bring in vexatious or frivolous cases. If the Government are minded to look for some exceptions—the rifle-shot approach that the noble Lord, Lord Newton of Braintree, has just advocated, not the blunderbuss approach—clearly this is one of those groups which I hope they will look to exempt. The measure does not even ask for legal aid; it simply asks for the status quo, which is that success fees can be paid in such cases.

--- Later in debate ---

[Lord Newton of Braintree]

My Lords, given that this is Committee, perhaps I may intervene again. I forgot to say, because I stood up in some haste, that the numbers point is interesting, as a consequence of what I call the slow burn, where a lot of cases that are appearing now relate to injury caused many years ago. My understanding is that cancer is one of the few whose incidence is, if anything, increasing rather than decreasing, because of the delay from the time of causation in such cases coming through. I think I have got that right, but whether I have or not I am delighted that the noble and learned Baroness, Lady Butler-Sloss, joined us in support of this point.

[Lord Wallace of Tankerness]

My Lords, perhaps I may deal with Amendments 121, 122, 129, 130, 134, 136A, 136B, 151, 152, 156AA, 156AB and 156C together. All seek to exempt certain types of cases from the Government’s reforms of no-win no-fee conditional fee agreements—CFAs. My noble friend Lord Newton described some of these amendments as being parts of a blunderbuss approach. I think that the noble Lord, Lord Beecham, described it as a bit of a shopping list. I shall come on to the issue relating to mesothelioma sufferers.

The amendments clearly stem from concerns that individuals may be unable to afford to bring certain personal injury cases. My noble friend Lord Newton of Braintree anticipated later amendments in the group beginning with Amendment 137A, which will be moved by the noble Lord, Lord Alton. I recognise that other issues arise such as the difficulty in trying to track down previous employers. I know that my noble friend Lord McNally will respond to that group of amendments and bear in mind what my noble friend Lord Newton said. When I was a Justice Minister in Scotland, I remember the plight of many mesothelioma sufferers, who were trying to get the process expedited so that their cases could be brought to court because many of them had a very short life expectancy. I certainly recognise the importance of those cases and I am sure that there will be a fuller debate on the back of the amendments to be moved and spoken to by the noble Lord, Lord Alton.

The difficulty with the other amendments in this group, as my noble friend Lord Newton said, is that when taken together they do not leave very much of the original intention of the Bill. With regard to recoverable or non-recoverable success fees being shifted to the defendants, it was pointed out in the previous debate that such fees have led to an escalation of costs. A plaintiff does not have the same interest, or may have no interest, in seeking to contain costs in those circumstances. One amendment relates to situations in which the defendants are public authorities. Some people have to pay the price of these additional costs. In motor insurance cases, we pay them through increased premiums. Council tax payers will no doubt bear some cost when escalating costs are picked up by public authorities.

The changes that we are bringing about will lead to costs becoming more proportionate. Equally, claimants will still be able to bring necessary and meritorious claims, and receive damages when they are due. However, as with privately paying clients, claimants on CFAs may have to pay some of their legal costs out of damages recovered. However, as I have indicated, we are introducing a number of measures that will help claimants to pay their solicitors’ success fees. The point was well made by my noble friend Lord Thomas of Gresford, in response to the previous debate, that in many cases no success fee is charged and some solicitors may have a selling point: “We will litigate for you, and no success fee will be charged”. That is more than likely to happen.

We must also remember that there will be a 10 per cent increase in general damages for non-pecuniary loss such as pain, suffering and loss of amenity. There will be a cap on the success fee at 25 per cent of damages awarded but, significantly, that will not apply to damages for future care and loss in personal injury cases. That will help to protect a claimant’s damages.

We have already discussed qualified one-way cost shifting. That will mean that losing claimants in personal injury cases who act reasonably will not have to pay a winning defendant’s costs, which in turn will reduce the need to have expensive ATE insurance products. Amendment 156AB is intended to ensure that the changes to the ATE insurance arrangements under Clause 45 do not come into force until the QOCS regime has come into force. I assure the Committee that we intend the package of reform to come into force at the same time.

On Amendment 156C, Clause 46 prohibits membership organisations from claiming the costs incurred by self-insuring against risk. That point was made by the noble Baroness, Lady Turner, in our previous debate. As I understand it, under the Access to Justice (Membership Organisation) Regulations 2005, bodies are listed by the certification officer. Trade unions represent an important number of those bodies, but a number of others have also been listed under Section 30 of the Access to Justice Act 1999.

As has been said on many occasions, the Government have decided to abolish the recoverability of ATE insurance premiums, and believe that this change should apply equally to arrangements for membership organisations. Retaining the recoverability of ATE insurance premiums for membership organisations would create an unfair advantage and mean that defendants in claims brought by members of such organisations would continue to be liable for significant additional costs in such cases and be placed at a disadvantage.

Lord Justice Jackson made no formal recommendations in reference to member organisations. In such a compendious report, one may wonder why not. Nevertheless, in his response to the consultation, he supported the Government’s proposal that changes to the recoverability of ATE insurance premiums ought to apply equally to the arrangements for membership organisations in order to remove any unfair advantage. That view was shared by 63 per cent of respondents to the consultation, who thought that retaining recoverability of the self-insurance element for membership organisations would create an unfair advantage. It is to ensure that that unfair advantage does not occur that we resist the amendment, and I invite the noble Lord to withdraw it.