Civil Liability Bill [Lords]

Ellie Reeves Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons
Tuesday 4th September 2018 Commons Chamber

[Mr Gauke]

Of course we continue to look at this area. It is worth pointing out not just what we are doing in this Bill but the measures and action taken in the context of the Financial Guidance and Claims Act 2018, and it is right that we continue to do so. As I say, the Government are determined to find out whether the use of PPOs can be increased. We are very pleased that the Civil Justice Council, which is chaired by the Master of the Rolls, has agreed in principle to consider this issue.

The Civil Liability Bill is an important piece of our wider work to reform the civil justice system, including through the Financial Guidance and Claims Act, which strengthens the regulatory regime for claims management companies and bans cold calling. These reforms are needed to put personal injury payments on a fair, more certain and sustainable footing for the future. In turn, they will save the NHS and consumers money.

[Ellie Reeves (Lewisham West and Penge) (Lab)]

The Secretary of State says that the Financial Guidance and Claims Act bans cold calling. In fact, it does not create an outright ban on cold calling. Why not have an outright ban on cold calling before proceeding with proposals to increase the small claims limit, which would deny so many access to justice?

[Mr Gauke]

To be clear, we have taken robust action to deal with this issue. I would defend the Financial Guidance and Claims Act, which was a substantial step forward in ensuring that we do not see the abuses that we, in all parts of the House, are concerned about.

Legislating to ensure that genuine whiplash claims are backed up by medical evidence and that claimants receive proportionate compensation will reduce the number and cost of whiplash claims. This will allow insurers to pass on savings to consumers. As I have said, three quarters of the UK motor and liability insurance market has already publicly committed to doing so. In changing the system by which the discount rate is set, we want to continue to ensure fairness so that those who suffer serious long-term personal injury get full and fair compensation within a more informed and transparent system in which the rate is set by the Lord Chancellor at regular intervals with the benefit of independent expert advice. The prospect of the reforms we are proposing both to whiplash claims and to the discount rate has, according to the recent AA British insurance premium index, already triggered a fall in premiums in the expectation that claim costs will fall. I commend the Bill to the House.

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[Ellie Reeves (Lewisham West and Penge) (Lab)]

It is a pleasure to speak in this debate and to follow the hon. Member for South Leicestershire (Alberto Costa).

Since 2010, under this Government and the coalition before, changes made by the Ministry of Justice have left us with a legal system in a state of utter disrepair. Colleagues across the House, trade unions, lawyers and legal experts have all expressed deep concern about the implications of the Bill and the Government’s policy agenda, put forward under the auspices of cracking down on fraudulent claims. Of course, fraudulent claims are wrong and should be clamped down on, but the Bill is not the appropriate way to do so and its implementation would see a wholly disproportionate impact on access to justice.

Even the statistics being used in the Government’s bid to warrant such widespread changes are highly contested. Recent freedom of information requests showed that the number of whiplash-related injury claims recorded by the compensation recovery unit fell by 18% between 2017 and 2018. Insurance industry data has shown that, in 2016, 0.17% of all motor claims were proven to be fraudulent—a fall from the 0.25% recorded in 2015. We are simply not in the midst of a fraudulent claims epidemic, as Ministers would have us believe. What are indisputable, though, are the consequences of the full implementation of the Government’s legislative agenda and the vast impact it would have on access to justice for many across the country.

On the face of it, the Bill appears innocuous enough, yet it is a shell Bill whose true effect is felt only when combined with the raft of other proposals the Government are bringing forward—namely, the changes to the small claims limit. My concerns with this Bill are threefold: the measures detailed in part 1; the lack of a mechanism to pass on predicted insurance savings to customers; and the overwhelming impact this package of measures with have on access to justice for injured people.

The Bill paves the way for the long-standing and established Judicial Studies Board guidelines to be replaced with a rigid tariff system that would undermine judicial discretion and leave injured claimants much worse off. The draft tariff system presented by the Ministry has shown the reduction in payments for pain, suffering and loss of amenity for road traffic accident-related soft tissue injuries to be overwhelming. Injured claimants could receive up to 87% less than the 2015 average paid out under the existing guidelines.

Moreover, as a result of the proposed changes in the small claims limit—which is closely associated with the Bill—injured people would struggle to achieve access to justice. The raising of the small claims track from £1,000 to £5,000 for road traffic-related personal injury claims, and to £2,000 for all other types of personal injury claim, will cause thousands of injured people to fall out of the scope for free legal advice and representation, and potentially to be denied justice.

[Stephanie Peacock (Barnsley East) (Lab)]

Should not the Government make clear what these changes represent—a capitulation to the interests of the insurance industry at the expense of working people?

[Ellie Reeves]

My hon. Friend is absolutely right. The proposals constitute an attack on working people who, through no fault of their own, are injured in the workplace.

If the Government are intent on fraud reduction, why are those who are genuinely injured faced with receiving a fraction of what they would currently receive? Most injured people would happily give the money back if it meant that they were no longer injured.

Under the proposed tariffs, people will be given more compensation if their flight was delayed for three hours than they would receive after an injury lasting for three months. The idea of a £235 maximum payment for a three-month injury is not only laughable, but a clear assault on any reasonable definition of access to justice. The move to a tariff system helps no one but insurance companies, while customer premiums continue to rise. There are no measures in the Bill that would make it incumbent on insurance companies to pass on savings that are currently calculated to be £1.3 billion. I know that the Minister has suggested that the Government will table an amendment—as promised in correspondence with the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill)—but it is disappointing that that afterthought has not been included in the Bill thus far.

The Government say that they are listening to those who have concerns about their policy agenda. It is true that, following the Justice Committee’s report on the small claims limit, they have postponed their changes until 2020, but the purpose of that delay is by no means a rethink of policy or agenda. These changes are still coming, and their effect will still be felt whether the package of measures is presented this year, next year, or the year after that. The Bill, which is being rushed through on the quick, will leave us with a textbook example of a change in the law with ramifications that we will not truly understand until much further down the line. By that point it will be too late: the damage will have been done, and access to justice will have been eviscerated for many.

We must not forget that Conservative Governments do not have the best track record on justice matters. The Conservatives were repeatedly warned before proceeding with their legal aid reforms in 2012, but the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have gone further and deeper than was ever intended, with the number of civil legal aid matters initiated falling by 84% between 2010 and 2017. The changes in employment tribunal fees that were introduced under another Tory Lord Chancellor—which have since been found to be unlawful—caused a 68% fall in the number of single cases received per quarter by employment tribunals between October 2013 and June 2017. That was yet another ideologically driven Tory attack on access to justice.

[Andy Slaughter (Hammersmith) (Lab)]

We have just been debating in Westminster Hall the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the legal aid cuts. A sustained attack on access to justice has been going on since 2010: the Government have not learnt since then. Is the Bill not just another sustained attack on victims, restricting people from getting a fair trial in the courts—as my hon. Friend says—in the interests of no one except the insurance companies, which are major donors to the Conservative party?

[Ellie Reeves]

My hon. Friend is absolutely right. Had it not been for this debate, I would have attended that important Westminster Hall debate on LASPO and cuts in legal aid.

It is predicted that the Bill, and secondary legislation changes in, for instance, the small claims limit, will deter about 350,000 people from pursuing claims for injuries that were not their fault. Such a vast reduction in the number of cases is not something in which to take pride, but these measures will fail the genuinely injured. A recent survey by Unison showed that 63% of its members would not proceed, or be confident to proceed, with a claim without legal representation, but as a result of the Government’s package of measures, that is precisely what injured people will be faced with.

We cannot find ourselves, a year or two down the line, in a rabbit warren of even more legal advice vacuums, with stories aplenty of access to justice denied as a result of the enactment of the Bill and the forthcoming changes in the small claims limit. We must not be left with an ill-thought-out package of measures and regulations that will leave genuinely injured people with a severely limited ability to access justice.

Civil Liability Bill [ Lords ] (First sitting)

Ellie Reeves Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 11th September 2018 Public Bill Committees

[Ellie Reeves (Lewisham West and Penge) (Lab)]

I shall speak to amendments 10 and 11, which have been tabled by Opposition Mems. I stated on Second Reading that Opposition Members had expressed deep concern about the implications of the Bill and the policy agenda that the Government were operating under the cover of cracking down on fraudulent claims. Fraudulent claims are wrong, but we are not in the midst of an epidemic of fraudulent claims as Ministers would have us believe. In fact, insurance industry data show that of all motor claims, 0.17% were proven to be fraudulent in 2016. This is an extremely low percentage.

[Craig Tracey]

Does the hon. Lady accept that the figure of 0.17% relates to all motor claims, not just those relating to personal injury?

[Ellie Reeves]

The point about fraudulent claimants is that it is a very low percentage, and the insurance industry has reporting duties. No insurance company has stated that fraud is a material risk. It is not correct to suggest that there is an epidemic of fraudulent claims. Such claims should be tackled, but the way to do that is to go after those who commit fraud rather than innocent victims of road traffic accidents. The implementation of the Government’s package of measures in this Bill and the forthcoming changes to the small claims limit would eviscerate access to justice for many people with genuine injuries. In its current form, the Bill would replace the long-standing and established Judicial Studies Board guidelines with a rigid tariff that would undermine judicial discretion and leave injured claimants worse off.

I agree with the conclusions of the Access to Justice group in its written submissions to the Committee, which state that the increase in the small claims limit and the introduction of a tariff system is punitive and arbitrary. The draft tariff system presented by the Ministry has shown an overwhelming reduction in payments for pain, suffering and loss of amenity for whiplash injuries. In comparison with the 2015 average pay-outs under the existing guidelines, injuries lasting 19 to 24 months would be compensated 13% less, and those lasting 16 to 18 months would be compensated 29% less, while injuries lasting 13 to 15 months would be compensated 45% less. I note that Government amendment 4 would ensure the Lord Chancellor consulted the Lord Chief Justice before proceeding with regulation changes, but it is not satisfactory and would not see access to justice delivered for injured claimants. It misses the point of what is damaging about the move from judicial guidelines.

The Bill classifies injuries dealt with by the proposed tariff scheme as minor. I am not sure by whose definition a minor injury is one that can last up to two years. By most standards, it is surely a significant injury, and I welcome the shadow Front-Bench amendments that would see injuries of more than a year removed from the scope of the tariff system. To grade an injury of up to 15 months as minor and restrict damages to nearly 50% of what they are currently is a clear, ideologically-driven assault on access to justice.

Moreover, the evidence submitted to the Committee by the Carpenters Group showed that 15% of road traffic accident injuries lasted for more than 12 months. We cannot insist that the punitive measures invoked by a move to a tariff system affect the ability of a substantial number of people to access justice. Further, on the secondary legislation changes to the small claims track from £1,000 to £5,000 for road traffic-related personal injury claims and to £2,000 for all other types of personal injury claim, the package of measures, of which this Bill forms part, will see thousands of injured people fall out of scope for free legal advice and potentially denied justice. Current predictions are that around 350,000 injured people will be put off pursuing a claim for an injury that was not their fault. Access to justice is on the line for thousands of genuinely injured people.

[Jo Stevens]

Does my hon. Friend agree that the impact of the Bill will mean that we are likely to see what happened in the employment tribunals when fees were introduced and there was a drop-off of 90%?

[Ellie Reeves]

That is absolutely right. If the changes go through, hundreds of thousands of people will simply not be able to pursue claims with legal representation and will be deterred from doing so. The Government’s introduction of employment tribunal fees was found by the Supreme Court to be illegal because they denied people access to justice, and we seem to be going down the same route with the Bill’s further attacks on access to justice and with the related small claims measures. Amendments 10 and11 should be adopted as they provide much needed strength to the legislation and will help protect access to justice for victims of accidents.

[The Chair]

Order. Minister, as you will have noticed, we have strayed into a stand part debate, so I do not intend to have a separate one. If the Minister wishes to say anything in response, now is the time.

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[Rory Stewart]

The answer goes to the core of the entire legislation. The proposed tariff recognises that what we are dealing with—or at least, what we believe we are dealing with—in relation to whiplash, with the peculiar anomalies since 2005 and the increase in whiplash claims, is not exclusively medical or legal, but has strong social and political dimensions in terms of insurance premiums and the cost to the public purse, which is why quite a lot of part 2 of the Bill deals with the NHS. The introduction of the tariffs is designed precisely to reduce the amount paid out in the specific case of general damages for minor whiplash injuries. Simply to stick with the judicial college guidelines would obviate the entire purpose of the Bill and undermine the medical, legal, social and political arguments that underlie the legislation.

[Ellie Reeves]

Under the proposals, an uplift would be allowed only if the whiplash injury was exceptionally severe or the circumstances were exceptional. Does that not hugely undermine the principle of judicial discretion and take away judges’ ability to assess cases and make appropriate awards for damages? The threshold in these proposals has to be far too high.

[Rory Stewart]

Clearly, a system of the sort we propose, which is modelled on the existing tariff systems in places such as France and Italy, is designed to set in law, through the actions of an accountable Minister, the level of the tariff. The argument is absolutely right. As the hon. Lady suggests, that will remove discretion from judges except in exceptional circumstances. The reasons for that are to do with our policy objective of dealing with the whiplash claim culture. Our intention is to reduce the damages paid for minor whiplash injuries, which are defined in the Judicial College guidelines as those that last less than two years. That will result in general damage payments lower than those currently awarded by judges. However, in exceptional circumstances, judges will be able to increase the award.

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[Rory Stewart]

I very strongly support the basic principles and philosophy of amendments 19 to 21. I have huge respect for MedCo—right hon. and hon. Members will be aware that it is a non-profit portal designed to select at random an expert witness in order to testify in whiplash injury claims. I can reassure them that the intention is for MedCo to be the appropriate channel through which advice is sought.

The only reason we have not put MedCo on the face of the Bill is to provide for the eventuality that, in 20 or 30 years’ time, an entity other than Medico might exist— as hon. Members will see in clause 6(4), we are specifying the form of evidence, the person, the accreditation and the regulations. That was on the advice of counsel, which has had strong experience over the last century, that defining a non-profit on the face of the Bill could cause massive challenges if something unforeseen happens to it. We absolutely agree that MedCo is the appropriate body to use at the moment. All the arguments made by the Opposition are accepted, but on counsel advice, we respectfully advise that it would be better to allow flexibility rather than defining MedCo on the face of the Bill, and therefore ask them to withdraw those amendments.

New clause 3 argues for an individual to be able to reclaim their legal costs while pursuing their whiplash claim. This is a fundamental point of debate and disagreement, and goes against the fundamental principle of the small claims court, the idea of which is that an individual should be a litigant in person and not in a position to recover their legal costs. The argument made is that, under the level proposed—which in the case of certain kinds of damages is £10,000, in relation to whiplash would be £5,000 and in relation to personal injury could be as much as £2,000—we believe that the nature of the claims, particularly with a medical report in place, should be relatively straightforward. We have made some concessions about the online portal and the roll-out, all of which, we think, makes it inappropriate to ask for the reclaim of legal costs.

[Ellie Reeves]

Are we not going to be in exactly the same situation we were with employment tribunal fees? For people pursuing claims, fees, whether they are court fees, legal fees or medical costs, will put people off pursuing claims and therefore undermine their access to justice. The Government were called out on this by the Supreme Court regarding employment tribunal fees and we seem to be going back down the same route.

[Rory Stewart]

This will be entirely different. The disagreement is only about whether one can employ a lawyer and recover the cost of the lawyer. The individual will be able to recover from the insurer the medical costs on the report they got—for example if they spent £140 going through the MedCo portal. The small claims court cost of registering the claim would also be recoverable. However, in the vast majority of cases at the moment—we consider that this will be true in the future—cases do not go to court at all. In the vast majority of cases, a claimant will get a medical certificate, follow the path of the online portal and the settlement will come without them having to proceed to court.

Civil Liability Bill [ Lords ] (Second sitting)

Ellie Reeves Excerpts

Committee Debate: 2nd sitting: House of Commons
Tuesday 11th September 2018 Public Bill Committees

Assumed rate of return on investment of damages

[Ellie Reeves (Lewisham West and Penge) (Lab)]

I beg to move amendment 24, in clause 10, page 9, line 20, leave out from “SCHEDULE A1” to end of page 14, and insert—

“SCHEDULE A1

Assumed Rate Of Return On Investment Of Damages: England And Wales

Periodic reviews of the rate of return

1 (1) The Lord Chancellor must instruct the expert panel to review the rate of return periodically in accordance with this paragraph.

(2) The first review of the rate of return must be started within the 90 day period following commencement.

(3) Each subsequent review of the rate of return must be started within the 5 year period following the last review.

(4) It is for the Lord Chancellor to decide—

(a) when, within the 90 day period following commencement, a review under sub-paragraph (2) is to be started;

(b) when, within the 5 year period following the last review, a review under sub-paragraph (3) is to be started.

(5) In this paragraph—

‘90 day period following commencement’ means the period of 90 days beginning with the day on which this paragraph comes into force;

‘5 year period following the last review’ means the period of five years beginning with the day on which the last review under this paragraph is concluded.

(6) For the purposes of this paragraph a review is concluded on the day when the Lord Chancellor makes a determination under paragraph 2 as a result of the review.

Conducting the review

2 (1) This paragraph applies when the Lord Chancellor is required by paragraph 1(2) or (3) to instruct the expert panel to conduct a review of the rate of return.

(2) The Lord Chancellor must instruct the expert panel to review the rate of return and determine whether it should be—

(a) changed to a different rate, or

(b) kept unchanged.

(3) The expert panel must conduct that review and make that determination within the 140 day review period.

(4) When deciding what response to give to the Lord Chancellor under this paragraph, the expert panel must take into account the duties imposed on the Lord Chancellor by paragraph 3.

(5) During any period when the office of Government Actuary is vacant, a reference in this paragraph to the Government Actuary is to be read as a reference to the Deputy Government Actuary.

(6) In this paragraph ‘140 day review period’ means the period of 140 days beginning with the day which the Lord Chancellor decides (under paragraph 1) should be the day on which the review is to start.

Determining the rate of return

3 (1) The expert panel must comply with this paragraph when determining under paragraph 2 whether the rate of return should be changed or kept unchanged (‘the rate determination’).

(2) The expert panel must make the rate determination on the basis that the rate of return should be the rate that, in the opinion of the expert panel, a recipient of relevant damages could reasonably be expected to achieve if the recipient invested the relevant damages for the purpose of securing that—

(a) the relevant damages would meet the losses and costs for which they are awarded;

(b) the relevant damages would meet those losses and costs at the time or times when they fall to be met by the relevant damages; and

(c) the relevant damages would be exhausted at the end of the period for which they are awarded.

(3) In making the rate determination as required by sub-paragraph (2), the expert panel must make the following assumptions—

(a) the assumption that the relevant damages are payable in a lump sum (rather than under an order for periodical payments);

(b) the assumption that the recipient of the relevant damages is properly advised on the investment of the relevant damages;

(c) the assumption that the recipient of the relevant damages invests the relevant damages in a diversified portfolio of investments;

(d) the assumption that the relevant damages are invested using an approach that involves—

(i) more risk than a very low level of risk, but

(ii) less risk than would ordinarily be accepted by a prudent and properly advised individual investor who has different financial aims.

(4) That does not limit the assumptions which the expert panel may make.

(5) In making the rate determination as required by sub-paragraph (2), the expert panel must—

(a) have regard to the actual returns that are available to investors;

(b) have regard to the actual investments made by investors of relevant damages; and

(c) make such allowances for taxation, inflation and investment management costs as the expert panel thinks appropriate.

(6) That does not limit the factors which may inform the expert panel when making the rate determination.

(7) In this paragraph ‘relevant damages’ means a sum awarded as damages for future pecuniary loss in an action for personal injury.

Determination

4 When the expert panel makes a rate determination, the expert panel must give reasons for the rate determination made.

Expert panel

5 (1) For each review of a rate of return, the Lord Chancellor is to establish a panel (referred to in this Schedule as an ‘expert panel’) consisting of—

(a) the Government Actuary, who is to chair the panel; and

(b) four other members appointed by the Lord Chancellor.

(2) The Lord Chancellor must exercise the power to appoint the appointed members to secure that—

(a) one appointed member has experience as an actuary;

(b) one appointed member has experience of managing investments;

(c) one appointed member has experience as an economist;

(d) one appointed member has experience in consumer matters as relating to investments.

(3) An expert panel established for a review of a rate of return ceases to exist once it has responded to the consultation relating to the review.

(4) A person may be a member of more than one expert panel at any one time.

(5) A person may not become an appointed member if the person is ineligible for membership.

(6) A person who is an appointed member ceases to be a member if the person becomes ineligible for membership.

(7) The Lord Chancellor may end an appointed member’s membership of the panel if the Lord Chancellor is satisfied that—

(a) the person is unable or unwilling to take part in the panel’s activities on a review conducted under paragraph 1;

(b) it is no longer appropriate for the person to be a member of the panel because of gross misconduct or impropriety;

(c) the person has become bankrupt, a debt relief order (under Part 7A of the Insolvency Act 1986) has been made in respect of the person, the person’s estate has been sequestrated or the person has made an arrangement with or granted a trust deed for creditors.

(8) During any period when the office of Government Actuary is vacant the Deputy Government Actuary is to be a member of the panel and is to chair it.

(9) A person is ‘ineligible for membership’ of an expert panel if the person is—

(a) a Minister of the Crown, or

(b) a person serving in a government department in employment in respect of which remuneration is payable out of money provided by Parliament.

(10) In this paragraph ‘appointed member’ means a person appointed by the Lord Chancellor to be a member of an expert panel.

Proceedings, powers and funding of an expert panel

6 (1) The quorum of an expert panel is four members, one of whom must be the Government Actuary (or the Deputy Government Actuary when the office of Government Actuary is vacant).

(2) In the event of a tied vote on any decision, the person chairing the panel is to have a second casting vote.

(3) The panel may—

(a) invite other persons to attend, or to attend and speak at, any meeting of the panel;

(b) when exercising any function, take into account information submitted by, or obtained from, any other person (whether or not the production of the information has been commissioned by the panel).

(4) The Lord Chancellor must make arrangements for an expert panel to be provided with the resources which the Lord Chancellor considers to be appropriate for the panel to exercise its functions.

(5) The Government Actuary’s Department, or any other government department, may enter into arrangements made by the Lord Chancellor under sub-paragraph (4).

(6) The Lord Chancellor must make arrangements for the appointed members of an expert panel to be paid any remuneration and expenses which the Lord Chancellor considers to be appropriate.

Application of this Schedule where there are several rates of return

7 (1) This paragraph applies if two or more rates of return are prescribed under section A1.

(2) The requirements—

(a) under paragraph 1 for a review to be conducted, and

(b) under paragraph 2 relating to how a review is conducted, apply separately in relation to each rate of return.

(3) As respects a review relating to a particular rate of return, a reference in this Schedule to the last review conducted under a particular provision is to be read as a reference to the last review relating to that rate of return.

Interpretation

8 (1) In this Schedule—

‘expert panel’ means a panel established in accordance with paragraph 5;

‘rate determination’ has the meaning given by paragraph 3;

‘rate of return’ means a rate of return for the purposes of section A1.

(2) A provision of this Schedule that refers to the rate of return being changed is to be read as also referring to—

(a) the existing rate of return being replaced with no rate;

(b) a rate of return being introduced where there is no existing rate;

(c) the existing rate of return for a particular class of case being replaced with no rate;

(d) a rate of return being introduced for a particular class of case for which there is no existing rate.

(3) A provision of this Schedule that refers to the rate of return being kept unchanged is to be read as also referring to—

(a) the position that there is no rate of return being kept unchanged;

(b) the position that there is no rate of return for a particular class of case being kept unchanged.

(4) A provision of this Schedule that refers to a review of the rate of return is to be read as also referring to—

(a) a review of the position that no rate of return is prescribed;

(b) a review of the position that no rate of return is prescribed for a particular class of case.”

This amendment would require that the discount rate was set by the expert panel, not the Lord Chancellor.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 22, in clause 10, page 10, line 13, at end insert—

“( ) the expert panel established for the review;”

This amendment, together with Amendment 23, would require the Lord Chancellor to consult the expert panel before the initial discount rate determination, rather than just the subsequent ones as currently required.

Amendment 23, in clause 10, page 10, line 21, at end insert—

“( ) The expert panel must respond to the consultation within the period of 90 days beginning with the day on which its response to the consultation is requested.”

See explanatory statement for Amendment 22.

New clause 5—Review of assumptions on which calculation of the personal injury discount rate is based—

“(1) Within 3 years from the date on which this Schedule comes into force, the Lord Chancellor must arrange for the expert panel to review the assumptions on which the personal injury discount rate is based, and review how investors of relevant damages are investing such damages.

(2) The review must report to the Lord Chancellor whether the assumptions on which the personal injury discount rate is based should be changed and set out recommendations.”

This new clause would require the Lord Chancellor to arrange for the expert panel to conduct a review of the assumptions on which the discount rate is based in light of how claimants are in practice investing their compensation.

Clause stand part.

[Ellie Reeves]

The personal injury discount rate is a pivotal part of the compensation process. It must be carefully reviewed, calculated and set. The rate is critical as it helps to determine what an injured person receives following what can often be life-changing injuries. Damages are paid to individuals, usually as a lump sum, to account for the losses caused by an injury. The level at which the personal injury discount rate is set is based on assumptions about the risk of the recipient’s investment of the damages they are awarded, which helps to ensure that any future market fluctuations are accounted for. The rate ensures that recipients ultimately receive the level of compensation that was intended and do not enter a state of extreme over or under-compensation.

The need for the rate to be set correctly is clear. An individual involved in a major car crash who breaks their back and may as a result never work again might need to adapt their home and pay for care, and might have loss of earnings. When they receive their compensation as a lump sum, they would need to invest it. At present, injured individuals are treated as very risk-averse investors, rightly so given the impact that a major injury would likely have on one’s perception of risk. Also, they are not investors looking at the stock market. Their future quality of life depends on ensuring that they have enough money to live on and to provide important care. It is therefore imperative that the rate is set at the correct level to ensure that compensation awards are delivered as intended—based on the risk of the investments that the sums are put in.

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[Gloria De Piero]

My learned and experienced colleagues have spoken in great detail about our issues with the amendments, so I do not anticipate making a long speech. I wholeheartedly concur with the comments that my hon. Friend the Member for Lewisham West and Penge made about the importance of periodical payment orders and a proper, timely review of the personal injury discount rate. As everybody who has contributed has said, we are talking about the most seriously injured. They cannot and must not be let down by our playing politics or by insurers seeking to save money.

In amendments 22 and 23, we say that, if an expert panel is appropriate for subsequent reviews, why should not expert opinion from the panel be appropriate for the initial determination of the rate of return? That is why we will press them to a Division.

[Ellie Reeves]

I thank the Minister for his response to the points that I made. For the reasons that I and my hon. Friend the Member for Enfield, Southgate set out, I want to press amendment 24 and new clause 5 to a Division.

Question put, That the amendment be made.

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[Robert Courts]

The hon. Lady is absolutely right. I know she has a long history of practising, as do I. That is, of course, absolutely correct, but it does not mean that they are simply left to sink or swim on their own. I have seen countless cases in my practice where a district judge, although not representing someone, clearly points out arguments that may wish to be made. District judges frequently bend over backwards to ensure that the correct points are made by claimants. Although that is true and I accept the force of the hon. Lady’s point, I suggest that the overall thrust of enabling justice, but at a reasonable and proportionate cost, is being addressed.

[Ellie Reeves]

Is it not the fact that district judges increasingly have to assist litigants in person when people cannot get legal representation, and that that is putting a huge burden on the courts and district judges? That is not their role but they are increasingly having to do that, which puts an extra burden on them and increases court costs.

[Robert Courts]

The hon. Lady makes an excellent point. Clearly, cases where judges have to assist claimants are likely to take longer. However, this comes down to ensuring that claimants in cases at the lower end of the scale—I do not for a moment downplay the seriousness of people having been hurt in this way—can be heard at proportionate cost, and that the court’s resources, particularly for the payment of costs, go to cases at the higher end. Ultimately, the costs burden is what denies access to justice.

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Brought up, and read the First time.

[Ellie Reeves]

I beg to move, That the clause be read a Second time.

To understand the importance of new clause 4, we must understand the significance of the use of periodical payments to compensate those who have been injured through negligence, often catastrophically, with little or no capacity for work and with considerable care costs.

More often than not, successful claimants are paid a lump sum, which is intended to compensate them for the rest of their life. However, the benefits of periodical payments, rather than a lump sum, are threefold. First, periodical payments are index-linked so they go up in accordance with rising costs of living or care. Secondly, in such cases, there are often arguments about life expectancy. If the court accepts that a victim of a catastrophic injury is likely to live until 42 but medical advances mean that they actually live until 80, a lump sum will run out many years earlier. With periodical payments, the injured person is compensated every year for the rest of their life. Thirdly, receiving an annual periodical payment rather than a lump sum means that injured people do not have to make difficult investment decisions and, equally, it removes the risk that they will spend the money all at once.

The setting of the discount rate is highly relevant to periodical payments. When the rate stood at 2.5%, it was far more attractive for defendants to pay a lump sum that was discounted by 2.5% than to pay index-linked annual payments. That meant that in all but the most serious cases, periodical payments often met huge resistance from defendants. A rate that assumes a much lower level of investment risk by injured people may well result in an increase in the use of periodical payments, particularly in cases not at the most catastrophic level where resistance from defendants has been greatest. The benefits to the injured person are clear, and the benefits to the state of not having to pick up the bill for care or housing, if and when the money runs out, are obvious.

On Second Reading, the Minister said that he welcomed the use of periodical payments. Can he tell us the percentage of personal injury claims in which they are used? It is my understanding that the figures are astoundingly low, often due to resistance from defendant insurers. New clause 4 makes it incumbent on the Civil Justice Council, with its expert knowledge, to review the impact of part 2 and the discount rate on the prevalence of periodical payments being awarded. If we agree that periodical payments are a good thing, surely we can agree that their use must be monitored so that appropriate and evidence-based action can be taken where necessary. This would benefit injured people and the Treasury alike.

[Rory Stewart]

Once again, I want to take this opportunity to praise the hon. Member for Lewisham West and Penge. The arguments for PPO are very strong. It is absolutely correct that the ideal thing is to give someone a PPO. The problem at the moment with receiving a large sum with a discount rate is that one could end up overcompensated or undercompensated. Overcompensation means a huge cost to the NHS and the taxpayer. Undercompensation can be catastrophic for one’s lifetime care costs. Rather than taking a lump sum, the PPO ensures that one gets the amount of money required to look after one’s costs. Therefore, we agree with the nature of this argument.

The disagreements with this amendment are technical. The 18-month period from Royal Assent is too short to take real effect. Regarding the basic question the hon. Lady has raised—whether the Civil Justice Council should look at the use of PPOs and the impact of discount rates on PPOs—we have written directly to the Master of the Rolls to request that the Civil Justice Council look at the use of PPOs. We remain open to doing that again, once the new review of discount rate is introduced.

It is absolutely right that we should encourage more uptake and challenge the insurance companies, which have said publicly that they want more use of PPOs, to ensure that more PPOs are given out. That is the best way to protect an injured person. There are some narrow cases where it is not appropriate—somebody may not have sufficient insurance or the financial weight to deliver a PPO—but when it is paid out, it ought to be paid and that is why we are grateful that, for example, the NHS continues to use the PPOs in the case of catastrophically injured children. I request that the hon. Lady withdraw the amendment.

[Ellie Reeves]

I thank the Minister for that response and, to some extent, his assurances. However, given that the Bill seeks to make big changes, if we are committed to periodical payments and their use, there should be a mechanism for review built into the legislation. I shall press the new clause to a Division.

Question put, That the clause be read a Second time.

Civil Liability Bill [Lords]

Ellie Reeves Excerpts

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

[Chris Philp]

Once again my hon. Friend makes a very good point—two very good points, in this case. The operation of claims management companies, which have been actively engaged in encouraging the public to commit fraud, has had an extremely negative effect in this area. I want an outright ban on them making cold calls, but I am slightly concerned that even if the Government take all the action that he and I would like, these people, being extremely adept in such matters, would adapt their behaviour to circumvent the legislation and regulation. For example, they might start making cold calls from outside the UK’s legal jurisdiction, as we saw following the ban on referral fees that came into force two or three years ago. Insurance companies were banned from receiving referral fees from claims management companies, but some insurance companies and claims management companies sought to circumvent the ban by setting up what they euphemistically termed “alternative business structures”, whereby the claims management company effectively remunerated the insurance company via an equity stake rather than a referral fee. I am therefore concerned that even if we take all the action we can, these often rather dubious characters will find new and ingenious ways of circumventing the legislation.

[Ellie Reeves (Lewisham West and Penge) (Lab)]

I welcome the fact that the hon. Gentleman supports an outright ban on cold calling by claims management companies, but does he agree that the Government’s measures in the Financial Guidance and Claims Act 2018 do not go that far? Rather than punishing injured victims, would it not be far better to introduce that outright ban on claims management companies’ cold calling?

[Chris Philp]

As I said a moment ago to my hon. Friend the Member for Bromley and Chislehurst, an outright ban would be welcome—it might be something the Government are looking at in any case—but because these people are so ingenious at circumventing even the best-written rules and regulations, there would still be a problem.

--- Later in debate ---

[Ellie Reeves (Lewisham West and Penge) (Lab)]

It is a pleasure to speak in this debate. I welcome the opportunity to try to counter the worst aspects of this Bill by speaking to Opposition new clauses 1 and 2.

Access to justice may sound like a catchphrase or buzzword, but it underpins so much within our society, and it should not be bandied about and dismissed with the cavalier attitude currently shown by this Government. The Bill will cause a regression in the ability of genuinely injured people to seek compensation and justice for their injuries. The narrative of wanting to clamp down on fraudulent claims has long worn thin and the statistics the Government are using to justify these policies are entirely erroneous. Of course fraudulent claims are wrong and should be investigated and clamped down on, but we are not experiencing the epidemic levels we have been repeatedly warned of. In 2017, 0.22% of all motor claims were proven to be fraudulent; bearing in mind that that is for all motor claims, whiplash injuries will be an even smaller percentage.

Instead of looking at empirical evidence to create legislation, the Government are using disputed statistics to legitimise their agenda. This is wrong, and the impact on access to justice that the Bill will have will be substantial: 350,000 injured people without the free legal cover they are currently able to access. That is the true cost of implementing the Government’s package of measures.

As I outlined on Second Reading and in Committee, the changes to the small claims limit—although not on in the Bill, they are intrinsically related to its content—will be utterly damning on any reasonable definition of access to justice. The proposal to increase the small claims limit from £1,000 to £5,000 in road traffic injury cases and from £1,000 to £2,000 in all other personal injury claims would mean thousands of injured people could fall out of scope for free legal advice and representation and could be denied justice. Costs are not recoverable from the losing party in the small claims court, so injured people will either have to pay their legal costs themselves, which is likely to be cost-prohibitive, or, more likely, forgo legal assistance altogether, or simply not pursue a claim.

In giving evidence during the Justice Committee’s inquiry into the small claims limit, the Minister in the Lords, Lord Keen, suggested that injured people could instead seek advice from their citizens advice bureau. I am sure that many Members will understand the great number of cuts that have befallen citizen advice bureaux in recent years, and this suggestion is not only unfeasible but is completely out of touch. If there is to be any change in the small claims limit, it must be done proportionately by pegging it against consumer price inflation.

[John Howell (Henley) (Con)]

rose—

--- Later in debate ---

[Ellie Reeves]

I want to make some progress.

That this must be done in this proportionate way is a widely held view, and those who advocate the approach include the Justice Committee, which published a recommendation in its small claims limit report in May; trade unions, including USDAW; the Association of Personal Injury Lawyers; the Law Society; and over 50 Members of this House who have signed my early-day motion calling for the increase to be in line with CPI inflation. These disproportionate and misguided hikes are, it seems, favoured only by this Tory Government and the insurance industry.

New clause 1 in my name and those of my hon. Friends would limit increase in the whiplash small claims limit in line with inflation and permit the limit to increase only when inflation had increased the existing rate by £500 since it was last set. By linking any rise to inflation, it would remove the power from the Lord Chancellor to determine the level and would instead tie it to an economic measure used by both Government and the Bank of England. The Lord Chancellor has an important role, but it is not one that should be afforded powers to artificially dictate rates such as the small claims limit for political reasoning or motivation. If we remove the politics from the decision-making process by using a widely recognised measure such as CPI, people, whether insurers or injured people, can have confidence in the system. It would provide certainty and clarity, be easy to track and would allow stakeholders to adjust for subsequent rises accordingly.

Complementing new clause 1, new clause 2 would firm up the proposal made by my hon. Friend the Member for Enfield, Southgate (Bambos Charalambous) in Committee that would limit increases in the small claims limit for children and people lacking capacity to make decisions for themselves. The Minister stated in Committee that vulnerable road users will be excluded from the Bill and from secondary measures on the small claims limit. This is welcome, but it is disappointing that no Government amendments have been tabled on Report to shore up that promise and include it in the Bill immediately. I hope that this is not a repeat of the Government’s promise to pass the predicted £1.3 billion-worth of insurance industry savings on to customers. I am afraid that the amendment in Committee on that issue was little more than a fudge, and its effect on customers’ premiums will be negligible at best, while the aggressive changes in the draft tariff system will involve reductions of up to 87% in payments for pain, suffering and loss of amenity from road traffic accident-related soft tissue injuries. Under the proposed tariffs, people will be compensated more for a flight delayed for three hours than for being injured for three months. The widely held and understood values of access to justice should not be undermined on a whim to satisfy the insurance industry.

What these Opposition new clauses highlight above all else is the true damage this Bill will do to access to justice and the principles that uphold the right to access to justice. In Committee, I warned the Minister that the changes made by the Government’s package of measures will be similar in scope to the disproportionate implications of the Legal Aid, Sentencing and Punishment of Offenders Act 2012—LASPO—and the unlawful introduction of employment tribunal fees, both of which are key pieces of Tory legislation that have done nothing but remove the rights of many people in seeking access to justice. What we have been left with is an 84% fall in civil legal aid and a 68% fall in the number of employment tribunal cases as a result of these Tory policies.

[Matt Rodda (Reading East) (Lab)]

Does my hon. Friend agree that this is part of a wider package of pressure on people who have some of the lowest incomes in our society? I wish to be associated with her new clauses and her points, and does she agree that the Government’s proposed measures are part of a wider package of pressure on the most vulnerable people in society?

[Ellie Reeves]

I agree with my hon. Friend. This is yet another attack on ordinary people’s access to justice. Should the Bill pass its remaining stages today, those shunned by LASPO and tribunal fees will be joined by an additional 350,000 injured people who will be left without the free legal cover they can currently access.

[John Howell]

I thank the hon. Lady and fellow Select Committee member for giving way. She has talked about access to justice, but she has not mentioned at all the impact of the online courts. Does she have a feeling about what sort of effect that would have for increasing access to justice?

[Ellie Reeves]

I thank the hon. Gentleman for making that point.

The Bill will have a significant impact on access to justice, and we know that the portal system is nowhere near ready to accommodate the changes. It has not been properly tested. Under successive Tory Governments, access to justice has fast become a luxury available only to the few. A recent survey showed that 63% of Unison members would not proceed or be confident to proceed with a claim without legal representation. The small claims limit changes in the Bill will push nearly two thirds of genuinely injured people away from pursuing a claim if they do not meet the arbitrarily imposed criteria dictated by the Lord Chancellor. The idiom of adding insult to injury has never been more apt, and it is surely time to think again.

[Bim Afolami (Hitchin and Harpenden) (Con)]

I have done something a bit novel: I have listened to what has been said in the debate, and my remarks will focus on that. I did not come here with a prepared speech; I came here and listened to the contributions from both sides.

I would like to start by responding to the hon. Member for Lewisham West and Penge (Ellie Reeves) and taking up a couple of points that she made. The first relates to the idea that the Government are somehow doing this because of special pleading from the insurance industry and that they are somehow in bed with the industry. The aim of the Bill is to reduce premiums for individuals. That is the focus of the Bill. If I were the insurance industry, I would want premiums to go up, but the aim of this package of measures is for premiums to go down for ordinary people. I therefore do not agree with her assertion.

Another point that the hon. Lady made was that the setting of the limit by the Lord Chancellor, or any future Lord Chancellor, was arbitrary, unfair and unjust, but that is why we have this House and why we have Ministers. They are not here just to do interviews on the “Today” programme. We have Ministers to make judgments that they are then held democratically accountable for. I accept that Labour Members—or, indeed, at some point in the very distant future, Conservative Members, when they are sitting on the Opposition Benches—might dislike a judgment that is made by a future Lord Chancellor, but we settle these things through the democratic accountability of this House. To reject that principle and to suggest that every limit in any area of law, whether this or anything else, should somehow not—

[Ellie Reeves]

I thank the hon. Gentleman for giving way. He talks with great passion about the democratic accountability of this House. Does he therefore agree that any changes to the small claims limit should not be done by negative statutory instrument, as the Government are proposing, and that they should instead be debated on the Floor of the House?

[Bim Afolami]

That is an interesting point. I have served on many Committees, as we all have, and some have huge amounts of engagement from lots of Members while others have less. But this House is not just this Chamber; it is also all the Committee Rooms. Negative statutory instruments provide a way for significant amounts of secondary legislation—I do not know how many pieces of legislation; probably hundreds—to go through Parliament. I cannot agree with the hon. Lady 100% that using that procedure will always result in a lack of democratic accountability, because frankly, in modern government, it plays a significant part in our governance process. I recognise the point she makes, however, and it is fair to say that sometimes people do not pay as much attention in Committees as they might do, but that is fundamentally the case for this Chamber, too.

--- Later in debate ---

[Alex Chalk]

I am grateful to the hon. Gentleman for making that point about LASPO, because if I may say so he is on stronger ground on that territory and I look forward to attending his debate and making some observations. That debate truly is about a cardinal principle that we in this Chamber should all share: whatever a person’s circumstances, they should be entitled to access to justice. It would be quite wrong, though, to conflate that debate with the one we are having.

On the tariffs, I do not suggest that this is the case for the hon. Gentleman, but there cannot be synthetic outrage. If someone has suffered pain, suffering and loss of amenity to the extent that their symptoms endure beyond two years, they are entitled to get whatever the judge thinks appropriate. We are dealing with claims that, although not insignificant, are towards the lower end of the spectrum. That needs to be borne in mind.

[Ellie Reeves]

The hon. Gentleman is right in saying that special damages are not included in the tariff. However, the point that needs to be made is that under the tariff system someone could, as he rightly points out, be off work for a very, very long time, but because of the way that the tariffs are set, their claim would fall into the small claims track, meaning that they would not be able to have their legal costs covered, so would be unlikely to get representation for their claim. That is likely to mean that they could have a big special damages claim that is never recoverable because they will be unable to afford to pursue their claim. Does he agree?

[Alex Chalk]

No, I do not. First, in any event, as the hon. Lady knows, if the person’s claim extends beyond £5,000, it will go on to the fast track, so they will be entitled to get that cost. Secondly, the concern that a number of solicitors raise about this is to say, “The really difficult thing that you need to claim—the thing that is hard sometimes to prove—is the general damages element.” That is why they have become so indignant about it. In fact, the special damages claim is rather easier to quantify, and I do not think that people would, in effect, be frozen out of justice. Thirdly—if this aspect of the Bill had not been changed, I think I would be opposing it—for the really difficult claims where, for example, somebody has been injured at work and faces, as I accept entirely, the added burden of having to take on their employer, the threshold does not apply in the same way. It is absolutely right that the Government have moved on that to ensure that anything above £2,000 means that people go on to the fast track.

On the hon. Lady’s specific point about the tariff, is it right to say that this is an egregious departure from anything that we have known before in English law? That is putting it far too high. My hon. Friend the Minister has already indicated that the Criminal Injuries Compensation Authority sets that principle in any event. Furthermore, it is a principle adopted in plenty of other countries that are signatories to the European convention on human rights, Italy for one.

It is also worth stepping back to consider the criminal law. Before the Sentencing Guidelines Council, as it was then called, started to set its guidelines in terms of tariffs for criminal penalties, there was a concern that it would be intruding on the discretion of the courts, but in fact it has worked very well. Defendants, lawyers and judges have really welcomed the guidelines, which set clearer tariffs, because that provides a degree of clarity. Of course, it is not a direct equivalent because judges still retain some discretion within the guidelines, but it does make the point that completely open-ended discretion does not exist everywhere throughout the legal system.

There are other mitigating factors that allow me, and people like me, to conclude that these are fair and proportionate proposals. First and most important is the exceptional circumstances uplift. Clause 5(1) says:

“Regulations made by the Lord Chancellor may provide for a court—

(a) to determine that the amount of damages payable for pain, suffering and loss of amenity in respect of one or more whiplash injuries is an amount greater than the tariff amount relating to that injury”.

In other words, there is a safety net in circumstances where the law would otherwise do an injustice. That is really important and ought to give a lot of comfort to Opposition Members who might otherwise be concerned. The second reason I feel comforted is that the tariffs are clearly going to have the engagement and input of the judges. That is why Lord Brown concluded that there was nothing wrong in principle with a tariff system.

There are of course things that have to be got right. It is critically important that any savings that are derived from this are truly passed on to motorists. I want to ensure that constituents in Cheltenham receive the benefits. We need to ensure that young people who are setting out on their careers and need their car for work, for whom every last £10 is critically important, will be receiving these benefits. If they do, then my clear view is that these principles are sensible, proportionate and calibrated, and have a safety net. Even though—I probably ought to have declared this at the beginning, Madam Deputy Speaker—my wife is a personal injury lawyer, I feel confident that I can take on the domestic dispute just as I have taken on Opposition Members in this House.