Civil Liability Bill [Lords]

Baroness Laing of Elderslie Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 23rd October 2018 Commons Chamber

[Madam Deputy Speaker (Dame Eleanor Laing)]

For the sake of clarity, yes, you may speak to new clause 2.

[Bambos Charalambous]

I support new clause 2, which is in my name and in the name of other hon. Members. I am concerned that the Bill takes away the protection for children and protected parties such as people with a mental capacity disability.

Under the current civil procedure rules, children and protected parties are required to have legal representation in court when there is a settlement following a civil claim. Children and protected parties are not excluded from the Bill as vulnerable road users. Prior to introducing the Bill, the Government gave exemptions to a small category of vulnerable road users, including cyclists and horse riders, but no such exemption was given to children or protected parties despite their being protected under rule 21 of the civil procedure rules.

The Government should exempt children and protected parties in accordance with rule 21, and the Minister’s own Department, the Ministry of Justice, is responsible for setting these rules. I raised this issue with him when the Bill was in Committee and, being a man of his word, he duly got back to me, but his response was disappointing. Part 21 of the civil procedure rules states that for a child or protected party settlement to be made it has to be with the approval of the court. The settlement has to go before a court; there is no issue of it going to a portal. For court approval, children and protected parties need legal representation.

The Minister’s response to me suggested that the insurance industry would provide legal representation and that this would solve the problem. Except there would be a clear conflict of interest if the same party were paying for the legal representation of both sides. When choosing a litigation friend for a child or protected party, one of the criteria, under paragraph 3.3 of practice direction 21, is that the party seeking to represent the child or protected party as a litigation friend should have

“no interest adverse to that of the child or protected party”.

Clearly someone who is being paid by the insurance industry against the child’s claim cannot say that they have no adverse interest.

Sometimes children will be suing their parents in a road traffic accident personal injury case, meaning that the parents will have an adverse interest and cannot act for or represent their children. By not excluding children and protected parties from this Bill, the Minister is making a mockery of the current rules that govern personal injury in England and Wales.

Why should a child be able to access legal representation in a case where they have been injured at, say, an amusement park but not when they suffer the same injuries in a road accident? As things stand, the child or protected party would still have to get a legal opinion before the court makes a settlement, but the cost of the advice would not be recoverable from the negligent defendant, or their insurer, in cases subject to the small claims tariff. Why does the Minister want to take money away from children and protected parties in order to benefit insurers?

There are complexities in these cases, and legal representation is needed more than ever in matters involving children and protected parties. I cannot understand the Government’s logic or rationale in excluding horse riders and cyclists from this Bill but not children or protected parties. Are they saying that injuries suffered by children and protected parties through no fault of their own should be treated less seriously than injuries suffered by cyclists or horse riders? This goes to the heart of the Bill, which is ill-conceived and drafted solely from the point of view of the insurance industry and not of innocent victims who make a claim.

It is shameful that the Government are willing to sacrifice the interests of innocent injured children, and to take away the protection they currently have, enshrined in law, to give the multi-billion pound insurance industry an even bigger advantage in court.

[Ruth George]

I rise to speak to amendment 1. This Bill was drafted at the behest of the insurance industry, as is clear from every speech in favour of it.

[Madam Deputy Speaker (Dame Eleanor Laing)]

I think the hon. Lady is speaking to new clause 1, rather than amendment 1. We would not want people to be confused.

[Ruth George]

I beg your pardon, Madam Deputy Speaker.

New clause 1 would amend some of the worst failings of the Bill, which has been drafted at the behest of the insurance industry over several years. The industry has failed to tackle fraudulent claims. We have heard from hon. Members on both sides of the House this afternoon that the industry, which is responsible for so many of the claims management companies and for passing information on to them, is producing the problems that the Government are now seeking to address by further victimising the victims of accidents.

The insurance industry is making billions of pounds of profit and will make a further £1.3 billion from this Bill through the reduction in claims. Victims of accidents are not the people who tend to go to court. Those who lose will be denied access to justice, as both the impact assessment and the excellent report from the Justice Committee make clear.

It is a huge undertaking for a layperson to take a case to court. Most would not even dream of it, especially a case against their employer, who will be armed with their own lawyers and often with an insurance company, which will also be armed with its own lawyers. Unison, the public sector union, surveyed its members 60% and said they would not have taken a case against their employer to get the compensation they deserved for their injury at work if they had to take the case on their own without the support of a lawyer.

It is extremely difficult to determine liability in the case of many accidents at work, especially in instances like those I saw when I worked for the Union of Shop, Distributive and Allied Workers. Deliveries are made to stores by a third party and there are incidents in warehouses that may be the fault of one party, the fault of another company or the fault of the employee. Those arguments are exceedingly difficult to pin down, especially for an individual claimant, and they require the assistance of a lawyer.

The Government assure us there will be an easy online portal for claimants to register a claim. I am sorry, but I am a member of the Select Committee on Work and Pensions and we were told that there would be an online portal for universal credit, yet 47% of claimants are unable to access the portal. An online portal is, of itself, not an easy thing to access, particularly for people for whom IT is not their natural sphere. I ask the Minister to commit the Government not to roll out these changes to the small claims limit until the portal has been demonstrated to be easily usable by at least 95% of those who seek to use it. I hope that that commitment will be made during the passage of this Bill because, as we have heard, the portal is nowhere near ready and even the pilots have been found by firms of lawyers to be difficult to access.

The arguments made in favour of the Bill have been about the cost of insurance but, as we have heard, that cost has been rising at the same time as insurance companies’ profits have been rising. It is not the cost of personal injury claims that has increased insurance; those bodily injury claims have actually reduced by £850 million since 2013. A large degree of the cost rises has been due to the costs of vehicle damage, which have become far higher in the last five years—nearly £700 a year more—because cars are more complicated.

The Bill has been introduced, it is claimed, to crack down on whiplash claims, but it covers far more than simply whiplash. The definition of whiplash itself has been extended far beyond a medical definition, to include all injuries to necks and backs that relate to rupture or strain of muscles, tendons or ligaments lasting up to two years. I hope that no one on either side of the House would feel that such injuries are minor. The Bill also deals with accidents at work, public liability claims and medical negligence. USDAW has estimated that five times as many cases would be caught by this small claims limit as are caught currently. According to the TUC, only one in seven workers make a claim against their employer for an accident at work. So we can see that this move will have a severe impact on the number of claims being made.