Civil Liability Bill [Lords]

Jo Stevens Excerpts

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

[Chris Philp]

I am always delighted to take advice and guidance from such a distinguished, learned and experienced Member as my hon. Friend the Member for Bromley and Chislehurst (Robert Neill). He adds further weight to the case by drawing attention to the benefits of the online portal, which I hope could be used to further simplify such matters and enable claimants to manage them, rather than having to rely on lawyers.

[Jo Stevens (Cardiff Central) (Lab)]

I refer the House to my entry in the Register of Members’ Financial Interests. Is the hon. Gentleman aware that in most personal injury claims, there are fixed costs for lawyers’ fees?

[Chris Philp]

In many cases there are, but in many cases those costs inflate. I referred to the fact that 47% of the value of pay-outs get consumed by legal fees. I hope that the fixed tariffs provision, which is not the subject of any amendment but is in the Bill, will further simplify matters.

One reason why we have a problem that needs solving in this area—new clause 1 would inhibit that solution—is qualified one-way costs shifting, which was introduced a few years ago. I understand why it was introduced—the shadow Minister referred to David and Goliath—but under a system of qualified one-way costs shifting, unless the respondent can prove quite a high level of intention, deceit or malfeasance, the claimant’s legal costs are borne by the respondent in any event, even if the claim is dismissed. That creates significant moral hazard, as it means that claimants can bring claims, even if those claims have relatively little merit, safe in the knowledge that they, or indeed their advisers, will never have to bear the cost of the claim. It is a one-way bet, which means that claimants may as well just have a go and see what happens. The number of cases in which a claimant is shown to be so egregiously fraudulent that they have to pay the cost is extremely small. This one-way bet—this free option—that the legal system now provides is one of the reasons why there has been such an explosion in claim numbers.

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[Chris Philp]

As always, my hon. Friend makes a very good point. As Members of Parliament, we should send out a clear message to our constituents and the wider public that making fraudulent claims is not a victimless crime. They affect the insurance premiums that all of us and all our constituents pay. Fraudulent claims are extremely bad for society as a whole. They encourage a sense that people can somehow get money without really deserving it, which is morally corrosive as well as financially damaging.

[Jo Stevens]

I am sure that no one in the Chamber thinks that we should encourage fraudulent claims—absolutely not—but may I bring the hon. Gentleman back to some facts? Between 2015 and 2017, the number of registered claims for whiplash fell by 15%, while the number of claims being reported through the police also fell, which might have something to do with the 37% reduction in the number of road traffic police officers in the last 10 years.

[Chris Philp]

Clearly the number of injury claims made via an insurance company is not related to the number of police officers on the street. The hon. Lady mentions the slight but welcome reduction in the number of whiplash injuries. Over the same period, the number of claims to insurance companies for back injuries has increased, so the total number of claims is down only very slightly over the last couple of years, and is still dramatically up over 10 years, which is clearly a more meaningful period. When the two are taken together, therefore, there has not been a significant reduction.

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[Chris Philp]

The hon. Lady evidently agrees that claims management companies have been inciting fraud on an industrial scale—a point of view that her Front-Bench colleague perhaps disagrees with. That said, claims management companies are only part of the problem. As I said, the incentives inherent in the system have encouraged the kind of behaviour I have been describing.

I want to come to the implied sedentary disagreement from the shadow Minister earlier. I inferred from his gesticulation that he disagreed with my suggestion that claims management companies were inciting fraud on an industrial scale. I will start with a personal anecdote, which I realise does not make the general point, but I will then come on to that more general point. My interest in this area stems from personal experience. About three or four years ago, just before being first elected, I had a minor road traffic accident while driving along the M5 to Cornwall with my wife and our two small children. [Interruption.] I think I am being heckled by the Chair of the Justice Committee.

Nobody was injured in the accident—the bumper was a bit dented, but that was it. It happened at low speed, the traffic having slowed down. For about a year, however, I was bombarded with calls to my personal mobile by people from claims management companies, I think, that had somehow found out about the bump, trying to persuade me that I or my family had suffered a neck injury. No matter how often or how insistently I told them that everyone was fine, they would say things such as, “If you just say your neck hurts, you’ll get £3,000.” The incitement to commit fraud was clear and direct. Subsequently, as recently as in the last two or three months, I have received repeated automated calls—robocalls—again to my mobile, although wholly unrelated, I think, to the first set of calls. I received a recorded message saying, “We are calling about your accident. Do you want to talk about it?” There was then a pause during which I was expected to reply. That is clearly happening on an industrial scale.

[Jo Stevens]

Who does the hon. Gentleman think sold his details to that claims management company?

[Chris Philp]

In the first instance, it was very likely to have been an insurance company that had been circumventing the referral fee ban through an alternative business structure, which is a practice that I wholly deplore, and I encourage the Government to ban it. However, as I have said three or four times before, simply trying to legislate away claims management companies will not in itself be enough when the incentives inherent in the system are so powerful. Raising the small claims track limit to, say, £5,000—which is still half the level of the general small claims track limit—will serve to diminish the financial incentives in the system whereby lawyers are taking nearly half the value of pay-outs.

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[Chris Philp]

My hon. Friend is absolutely right. Because the claims are settled upfront by the payment of, typically, £3,000 or £4,000, there is often no medical examination. There is therefore no evidence on which to assess whether the claim was fraudulent or not, which is why the 1% figure cited by the hon. Member for Hammersmith (Andy Slaughter) is essentially meaningless.

One of the other provisions in the Bill, which we debated on Second Reading, is the requirement for a medical examination to take place before an offer is made. That is an essential reform. In response to an intervention from me, the Secretary of State for Justice confirmed that such medical examinations would have to be face to face. That would begin to address the issue that my hon. Friend the Member for Bexhill and Battle (Huw Merriman) has rightly raised.

[Jo Stevens]

I thank the hon. Gentleman for giving way to me again; he is being very generous. He mentioned the purpose of raising the small claims limit to £5,000, and what that would do. What it will do is deny victims of injury access to justice, as the Government’s own impact assessment expressly states.

[Chris Philp]

I do not accept the premise of the hon. Lady’s intervention. I think that in the case of the smaller claims, whose value is less than £5,000, it is perfectly possible and perfectly reasonable for individuals to submit their own claims—these are relatively simple matters—using the online portal to whose importance my hon. Friend hon. Member for Bromley and Chislehurst drew our attention earlier. Members have also referred to the role that unpaid McKenzie friends can play in assisting members of the public who submit claims. I do not accept the suggestion that bona fide claims will be prevented or inhibited by the proposed reforms.

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[Bim Afolami]

I agree with my hon. Friend. I reiterate that the point of this legislation is to bring down insurance premiums for ordinary people by, I think, between 35% and 40%. I look to the Minister to check whether that is right.

[Jo Stevens]

The UK’s leading insurance companies earned more than £2.6 billion in profits in 2016, up on 2015. The proposed changes do not guarantee any reductions in premiums; they simply say that the premiums may fall. There is no guarantee that they will, and we know from previous Bills that this does not happen. Why does the hon. Gentleman suppose that things will be different this time?

[Bim Afolami]

I take the hon. Lady’s point. The industry has pledged to pass this on. My understanding is that premiums fell by an average of roughly £50 a year in 2012. When we talk about averages, we must bear in mind that if premiums were to fall by an average of, say, £35 under this legislation, the figure in some instances would be much greater—especially for young drivers, for example. Those are my remarks, based on what I have seen and heard today, and I commend this speech to the House.

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[Mr Clarke]

I am saying that there is a need for a proportionate system for compensation. The number of road traffic accident-related personal injury claims has increased by 200,000 since 2006—a rise of approximately 40%. That suggests to me that the incentives in the system are skewed. Insurers predict that, without reform, motor premiums could continue to rise at a rate of about 10% annually. That constitutes a significant burden on the cost of living for millions of us who are dependent on our cars for daily travel, especially in rural communities.

[Jo Stevens]

Does the hon. Gentleman not think that the UK’s leading insurers paying out £2 billion to their shareholders in 2016 might have something to do with the rising cost of insurance premiums?

[Mr Clarke]

The Bill is designed to make sure there is a closer connection between whiplash claims and medical evidence by introducing a ban on seeking or offering to settle whiplash claims without the appropriate medical evidence. That will discourage fraudulent claims, encourage insurers to investigate claims properly and protect genuine claimants from accepting a settlement without knowing the full extent of their injury.

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[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.

[Jo Stevens]

Does my hon. Friend agree that the Bill will make workplaces more dangerous? I know from experience that, if employers are litigated against as a result of accidents in the workplace, they review their safety policies and make workplaces safer. This Bill will have the opposite effect.

[Ruth George]

I absolutely concur with my hon. Friend’s point, which I raised with the Health and Safety Executive, whose laboratory is in my constituency. It concurred that one of its major concerns is that without claims being made against employers they will cease to militate against risk in the workplace. That is just one of the many problems the Bill will cause, both for victims of accidents and for all other employees in the workplace.

The Minister has heard many examples this afternoon of how the Government could crack down on fraud and on the costs of insurance without cracking down on innocent victims of accidents. The requirement in the Bill for medical reports prior to offers being made is an important one, which all sides are supporting. We hope that the Government would seek to assess the impact of that change before impacting on victims. We have also heard many calls from Members on both sides of the House for claims management companies to be acted against because they are obviously playing the system and we need to make sure that that cannot continue.

This Bill is seeking to make the innocent victims of accidents pay for the fact that insurance companies are not prepared to crack down on fraud and so have come to this Government seeking their help. We have no guarantee that insurance costs will fall, but we do know that insurance companies will make £1.3 billion more a year out of this legislation and that innocent victims of accidents will suffer. I very much hope that the Minister has listened to the arguments being made on both sides of the House today and will accept the new clause.