Access to Justice

Graham Stringer Excerpts

Wednesday 11th January 2017 Westminster Hall

[Rob Marris (Wolverhampton South West) (Lab)]

I beg to move,

That this House has considered access to justice.

It is a pleasure to appear in front of you, Mr Davies. I thank all those who sent in briefings and background information, which have been most helpful. I especially thank the law firm where I was a partner for several years, Thompsons. In fact, two other Members who are Thompsons alumni are with us today. Thompsons supported my campaign for re-election 18 months ago financially. I also thank the Law Society of England and Wales, of which I have been a member for three decades or more, and the Association of British Insurers.

Access to justice is a pillar of the welfare state. To me, it is no coincidence that in 1948, the legal aid system in England and Wales was introduced—the same year as the introduction of national insurance and the national health service. It is one leg of a three-legged stool called the welfare state. This afternoon, I will not have time to cover as much information and as many matters as I would like. I hope to run around the block on the small claims limit for personal injuries, soft tissue injuries and whiplash claims, and to touch on employment tribunal fees, legal aid deserts and court closures.

I will start with the small claims limit. In recent years, other jurisdictions with similar systems to ours have looked at raising their small claims limit. In Scotland, the small claims limit was raised in 2007, but all personal injury claims were specifically excluded from that, as colleagues from the Scottish National party who are here today will know. They were excluded principally on the grounds of complexity, because of the need for those claiming for a personal injury to instruct solicitors to obtain expert medical evidence and, quite often, other expert evidence—for example, from an engineer.

When the Scottish system was reformed in 2014, personal injury was still treated differently. In 2014, a new procedure was introduced in Scotland called, simply, the simple procedure, to replace small claims and summary causes for cases with a value of less than £5,000. However, most personal injury claims, while proceeding under simple procedure, have special rules. Employers’ liability claims, where someone is injured at work, are entirely excluded from simple procedure.

Whether to raise the small claims limit has been looked at repeatedly in England and Wales. For example, in 2009 Lord Justice Jackson recommended in his report that the limit be retained at £1,000 for small claims relating to personal injury, with a fast-track system. Looking back on that in 2016, he said:

“The fixed costs regime for fast track personal injury cases is working reasonably well.”

I appreciate that people could say he is biased: he suggested one course of action, which was followed, and then seven years later said it was working well.

However, in July 2016, less than a year ago, Lord Justice Briggs in the final report of his civil courts structure review concluded that

“a fixed or budgeted recoverable costs regime, backed by Qualified One-way Costs Shifting…plus uplifted damages has, in the sphere of personal injury (including clinical negligence) litigation been a powerful promoter of access to justice, in an area where the playing field is at first sight sharply tilted against the individual claimant, facing a sophisticated insurance company as the real (even if not nominal) defendant.”

That sets the scene, because there is an asymmetry between many victims who are claiming that they were injured as a result of someone else’s negligence and the effective body against whom they are claiming. For example, following a car accident between two individual drivers, the victim will be claiming against the other driver. That is often an individual, but behind that driver sits the insurance company, which will run the claim and has to do so under the compulsory policy of insurance that all drivers have to take out.

[Graham Stringer (Blackley and Broughton) (Lab)]

My hon. Friend is doing a great service to the House of Commons by bringing this issue before it. He is beginning to make the case that access to justice is fundamental to the welfare state. In one sense, he underestimates its importance. Does he agree that it is fundamental to democracy? A democracy relies on freedom of speech, freedom of the press, the right to vote and access to justice. If there is not the money for access to justice, we do not have the rule of law.

[Rob Marris]

I entirely agree. It is little use having rights if one cannot afford to enforce them. That entrenches inequality.

The consultation came out under the rubric of whiplash. I have to say to the Minister that the consultation somewhat sneakily was announced on 17 November and closed on 6 January. That is a short consultation period over Christmas, which is not helpful.

The Government’s own figures on the whiplash proposals, which may well be a gross underestimate, suggest that if implemented, they will see the NHS lose at least £9 million a year and the Treasury lose £135 million a year. But here is the stinger: insurance companies will get at least £200 million more per year. That is likely to be an underestimate. That figure is due to a methodology that is biased towards insurance companies and has been severely questioned by the Association of Personal Injury Lawyers, of which I think I used to be a member.

The methodology for who gains and who loses under the proposals counts as a gain the extra moneys that insurance companies will get but does not take into account the loss to solicitors. We can all weep crocodile tears about solicitors, but when talking about commercial arrangements, if we are looking at them dispassionately, we have to weigh in the balance where one commercial sector gains and another loses.