Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Finlay of Llandaff Excerpts

Wednesday 14th March 2012 Lords Chamber

[Lord Faulks]

My Lords, I agree with every speaker that this is a dreadful disease for which the sufferers deserve compensation. Just as importantly, they deserve compensation speedily. I am glad to say, as a practising barrister with some experience of cases of this sort, that the mechanisms and systems by which compensation can be achieved have greatly improved so that this can be done.

I agree that all these claims are thoroughly deserving. There can be no dispute about diagnosis. They are not the sort of cases that are covered by the much described “compensation culture”. The real question, though, is simply this: will these cases still proceed if the Bill becomes law? There is no doubt that they will become less profitable for lawyers, but will they become so much less profitable that these very deserving cases will be denied justice? That is the real question, I suggest.

The reason why lawyers do not take cases on CFAs—this is perhaps particularly so in clinical negligence cases—is that there are real difficulties and they might lose the case. In a series of cases on mesothelioma and other cases deriving from exposure to asbestos, the courts have done a great deal to help in terms of the law on causation. Not just through the 2006 Act but in a series of cases in the Court of Appeal and in the House of Lords, they have circumvented the difficulties in proving liability, particularly the so-called “single fibre” theory, where it was difficult to establish which of a number of employers was responsible. That difficulty is largely overcome. As I say, the noble Lord, Lord Walton, has confirmed that diagnosis is rarely controversial, so we do not have the situation of doctors disagreeing. So what is the real difficulty about these cases? There is a great deal of experience out there, both on the claimants’ and the defendants’ side, in taking these cases forward. One of the problems is not being able to identify the appropriate defendant or the policy. We have heard from the noble Lord, Lord Thomas, that steps have been taken through the ABI and other bodies to keep proper records of these matters.

However, where I have real difficulties, in agreement with all noble Lords who have spoken, is on the question of damages. A recent decision of the High Court has dealt with the quantum of damages in these cases. They are very modest. That is not because judges are not profoundly sympathetic to the claims, but simply because they are claims for pain and suffering and loss of amenity and do not involve long-term care claims or loss of earnings claims. Thus they are modest. However, I find it unattractive in the extreme that there should be 25 per cent taken off these damages, albeit that will be increased by 10 per cent. I very much hope that the Minister’s words are justified and that solicitors will not see fit—how could they?—to take a percentage of damages in these circumstances. I share with the noble Lord, Lord Alton, a revulsion of the expression “skin in the game” in the context of these desperately sad cases.

I suggest that Part 2 of the Bill is a very real and positive attempt by the Government to cope with what I have encountered as a disfiguring feature of the litigation world when inflated costs are involved and when cases become too much about lawyers’ fees and interests and insurers’ interests rather than the underlying dispute. This is a desperately sad series of cases. I share all noble Lords’ concern that damages should be recovered as quickly as possible. However, I venture caution lest, in the wake of these cases, we lose the structure and the architecture that Lord Justice Jackson put forward.

[Baroness Finlay of Llandaff]

I support the comments made by my noble friend Lord Walton of Detchant. As a doctor, I look after these patients and have found repeatedly that they do not even want to seek compensation but are persuaded to do so. They do not seek it for themselves as they know that their lives are over, but because they want to leave something behind for their bereaved families who will have to live on after their death, facing a loss in pension.

As has been said, a common feature of mesothelioma and the other respiratory diseases mentioned in other amendments in this group is that diagnosis is clear. Histological diagnosis under the microscope shows the fibres and fragments of substance to which these people have been exposed, such as asbestos fibres and small amounts of substances such as beryllium and silica. Another feature of these respiratory diseases is that they form a discrete group. Protection of the respiratory tract has been around for a long time but workers have not always been adequately protected. Sadly, there was a time lag in that regard. Indeed, as regards these diseases, blue asbestos was thought to be the culprit. It took some time before all forms of asbestos were identified as being fundamental pathogens. We must put the interests of the people suffering from these diseases before any other interests. For those reasons, I strongly support these amendments.

[Lord Mackay of Clashfern]

My Lords, obviously, the people who fall into this category should have our sincere sympathy. I certainly feel strongly that they deserve that. However, I want to mention one or two matters. First, when this system of contingency fees—or whatever name you want to call it—was introduced, there was no special rule for such cases. I do not know to what extent the noble Lord, Lord Alton, or the noble Lord, Lord Avebury, have looked into the situation as it was when the system as I introduced it was working.

Secondly, it will not have escaped your Lordships that the next amendment of the noble Lord, Lord Alton, concerns industrial disease cases generally. The amendment we are discussing deals with respiratory cases; the next amendment deals with industrial disease cases. I particularly draw to your Lordships’ attention the question of justice as between different claimants. I entirely accept what has been said by those highly medically qualified noble Lords who have spoken about the disease we are discussing. However, other troubles that are the subject of personal injury actions involve lifelong deprivation of practically all one’s faculties. That kind of long-lasting trouble comprises another type of personal injury action. If your Lordships wish to support this amendment, they have to think how they would justify treating the cases we are discussing differently from other terrible cases which those of us who have experience of personal injury actions know exist.

Long ago I was professionally involved in cases that concerned the National Coal Board. Pneumoconiosis cases were brought but other cases were brought involving people who had been injured while working underground. People who suffered those injuries were in terrible distress and eventually died. However, before they died they were in a very distressing situation. Therefore, one has to be careful about how one distinguishes between the different cases. Justice requires that similar cases be similarly dealt with.

If I understood him correctly, the noble Lord, Lord Alton, said that the cases in the group he was asking for should not be required to subsidise other cases. My understanding of this system is that you do not subsidise other cases: the success fee is dependent on the chances of success in your case. It is a factor which is dependent on a probability of success that works into the success fee. It is not dependent on other cases; it is dependent on the precise potential for winning that exists in the case that you have in hand. Therefore, I do not accept that this system in any way subsidises other cases across the board except in the sense that the probability of success in a particular case is what determines the success fee.

If the noble Lord, Lord Alton, wishes to press this amendment, I assume that he will not have the benefit of the 10 per cent uplift for his amendments in this group, which is on the way as a result of the undertakings given by the Government. There is also the question of the one-way shift. That would probably apply if it were done generally in respect of these cases, but the other may not.

This is a very difficult area. The sympathy of the whole House is with these people, and that is very much the case with me and my noble friend in particular, given his experience of this issue. However, justice requires us to do justice as between different claimants. Other claimants also have very difficult conditions. How do we say to X, “Your claim and the conditions to which you have been exposed are so bad, as distinct from the others, that we can justify treating you differently”?

I should perhaps have said that I of course associate myself with the congratulations offered to the noble Lord, Lord Avebury. I did not suffer from the difficulties that my noble friend Lord Newton of Braintree had.