Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Alton of Liverpool Excerpts

Monday 30th January 2012 Lords Chamber

Moved by

[Lord Alton of Liverpool]

137A: Clause 43, page 30, line 23, at end insert—
“( ) The amendments made by this section do not apply in relation to proceedings which include a claim for damages for respiratory disease or illness (whether or not resulting in death) arising from industrial exposure to harmful substance.”

[Lord Alton of Liverpool]

My Lords, earlier in our Committee’s proceedings today, the noble Lords, Lord Beecham and Lord Newton of Braintree, were good enough to provide a curtain raiser for the amendment that we are about to consider. Amendments 137A, 156A and 156B fall in Clauses 43, 45 and 46 and happily enjoy all-party support from all parts of your Lordships' House. I am grateful particularly to my noble friend Lord Wigley and the noble Lords, Lord Avebury and Lord Bach, as fellow signatories to the amendment. I should also say that the noble Lord, Lord Newton of Braintree, asked me to add that he, too, is a firm supporter of the amendment, as are my noble and learned friend Lady Butler-Sloss and my noble friend Lord Martin of Springburn. The noble Lord, Lord Walton of Detchant, was also in the Chamber briefly earlier, and he asked me to say that he, too, has acute anxieties about the negative impact of these new arrangements on people suffering from mesothelioma. I think that the Minister would agree that this demonstrates that there is concern from all parts of your Lordships’ House, which I hope he will take seriously.

At the outset, I would like to pay tribute to the Asbestos Victims Support Group Forum UK and especially to Mr Tony Whitston, who took the trouble to come to Westminster to meet my noble friends Lord Wigley and Lord Avebury and myself—I know that he has also briefed the noble Lord, Lord Bach—and to set out the concern of mesothelioma victims, which he did with great clarity and with passion.

As the Bill currently stands, these mesothelioma sufferers, whose life expectancy is nine to 12 months from diagnosis, will be required to surrender 25 per cent of general damages—the damages average about £65,000—in success fees. These amendments would permit those suffering from an asbestos-related illness or other respiratory diseases to recover success fees and “after the event” insurance from a defendant in a successful claim for damages. However, I would like to split my remarks this evening into mentioning something about the background to this issue; secondly, something about the effects of these amendments; and, finally, four reasons why I hope that the amendments will commend themselves to the Committee and to the Government.

Up until 1995, when conditional fee agreements were introduced, most mesothelioma sufferers, along with many personal injury claimants of modest means, used legal aid to seek justice in the courts. In 1949, an estimated 80 per cent of the population satisfied the income criteria for legal aid, but by 1990 only 48 per cent qualified. As middle-income claimants were increasingly denied access to justice and given the Government’s determination to cut the cost of legal aid, in 1995 CFAs were introduced. Between 1995 and 2000, the success fee and “after the event” insurance were paid by claimants, take-up of CFAs was understandably limited and, wherever possible, mesothelioma cases were still run under legal aid. Trade unions then stepped in to provide additional support for many victims.

When the Access to Justice Act 1999 became effective, on 1 April 2000, the new CFA regime allowed for recovery of success fees and ATE insurance to make up for the abolition of legal aid for most personal injury cases. Under the previous legal aid regime, solicitors were paid for their work even if they lost the case, which allowed them to take on difficult but meritorious cases. The new CFA regime changed the funding arrangements by making provision for success fees, which in many cases have been fixed.

Without doubt, access to justice was certainly improved for everyone, including mesothelioma sufferers, under the new CFA regime from 2000 onwards. Put bluntly, solicitors and barristers were willing to take on riskier cases because the rewards were greater. Be that as it may, the important aspect is that those potential litigants who, due to their lack of funds, were hitherto prevented from accessing our courts were empowered by the new arrangements and able to bring their case. This is a conclusion with which the Ministry of Justice itself agrees. Its consultation paper, CP 13/10, Proposals for Reform of Civil Litigation Funding and Costs in England and Wales, states:

“There is general consensus that CFAs have increased access to justice for those who might otherwise not have been able to afford to bring a claim since they became enforceable in 1995, and particularly after the Access to Justice reforms which made CFAs an especially attractive funding method for claimants”.

--- Later in debate ---

[Lord McNally]

I never said that there was. But I can say to the noble Lord, Lord Alton, that I am quite sure that the insurance industry has been lobbying on this Bill. However, I can also tell him that the lawyers have not been too bad at lobbying either.

[Lord Alton of Liverpool]

I have no brief from either the insurance industry or from lawyers. I simply make the point that this is not about money from the public purse or money being abused by this or that group. This is treading dangerously close again to the arguments about people manipulating or misusing the system, or claiming compensation to which they are not entitled. Surely the noble Lord would agree that, because of the very moving personal circumstances which he described, and as the noble Lord, Lord Bach, has said, no one can fake these circumstances where mesothelioma is involved.

[Lord McNally]

I am not treading anywhere near that. I am saying that we are trying to bring a structure to the civil side that squeezes out of the process what has been considered by the senior judiciary, and by Lord Justice Jackson when he looked at the issue, to be an inflationary element of the process. Listening to some speeches, it sounds as though conditional fee agreements would not be possible; they will be. It also sounds as though 25 per cent of the compensation has to go on the success fee. It is entirely discretionary. Lawyers could refuse to take a success fee. In fact, I think it was my noble friend Lord Thomas who said earlier that we may well find that lawyers make a selling point of not taking success fees. This is not a hard, uncaring Government picking out difficult cases. They will go ahead and they will be won. The Government are ready to take steps to try to help people in this area.

In April 2011, supported by the Government, the insurance industry set up the Employers’ Liability Tracing Office. ELTO provides an online resource through which claimants and their representatives can search for the relevant policy, reducing the time and costs that are often involved in such searches. This difficulty was referred to earlier: namely, the difficulty of identifying and finding the employer’s insurer. ELTO provides claimants with access to an electronic database of EL policies through an online inquiry facility, substantially enhancing the previous tracing service that relied on insurers checking against their own policy records.

With effect from 1 April 2011, the Financial Services Authority introduced rules requiring an EL insurer to publish tracing information for all newly issued or renewed EL policies, and for old policies on which new claims are made. Insurers may use ELTO to satisfy their own requirements or publish details on their websites. To date, more than 98 per cent of the active EL insurance market has joined ELTO, as have a large number of insurers in run-off who are not covering current employment but are still liable or potentially liable for past cover. Most of the tracing information for new policies and some historical policies is readily accessible on the ELTO central database.

The FSA is continuing actively to consider how best to address the issue of other historical policies. Some insurers have voluntarily included additional historical policies on the ELTO database. The answer is unlikely to be as simple as requiring details of all historical policies to be put on the database, as these are not always readily available, especially when searching archives from over 10 years ago. While ELTO will ensure that in the future more people can obtain civil damages for industrial diseases, it may still be very difficult to trace historical policies, especially for those individuals suffering from long-tail diseases such as mesothelioma. We understand the urgency of the situation in which injured people, after all other avenues have been exhausted, are still unable to find an insurer to claim against, and we are working hard to see what can be done for them. We are still working closely with all stakeholders to see what can be done to compensate people with mesothelioma who are unable to claim civil damages because their employer no longer exists and their EL insurer cannot be found.

If, for any reason, someone who contracts mesothelioma is unable to bring a civil claim because they cannot trace their employer or the relevant employers’ liability insurance policy, a number of other possible routes of redress are available through state schemes operated by the Department for Work and Pensions. I take the point made by my noble friend Lord Avebury about the discussions going on at the DWP. The department is continuing to work with stakeholders to see what can be done to compensate people with mesothelioma and similar conditions who are unable to claim civil damages because their employer no longer exists and the employers’ liability insurance policy cannot be found. In the light of this, I am not persuaded—

--- Later in debate ---

[Lord Thomas of Gresford]

The issue really is this: should all cases be treated alike? Well, Lord Justice Jackson did not treat all types of litigation alike. For example, he specifically recommended that clinical negligence should stay within legal aid, for various reasons that we have gone through that I do not need to repeat. Nor did he suggest that all his proposals should be limited to personal injury cases; he thought that they should be broader but they could vary, depending on the particular circumstances.

The reason for that is that risk varies. For road traffic accidents, nine out of 10 cases will be won because it is fairly easy to determine in a road traffic accident who is at fault, to what degree and so on, and the quantum follows thereafter. In clinical negligence cases, three out of four cases will be lost, so the risk is very different. That is why Lord Justice Jackson decided that clinical negligence should remain within the scope of legal aid. We are not involving government money or public money here; what we are trying to discuss is what constitutes a fair balance in a particular category of case, which can vary from case to case. I do not think that we should approach this on the basis that there is an architecture that should apply to every particular type of claim that is ever brought.

In mesothelioma cases, for example, we are not so much concerned with the fact that the person has the disease; what we are concerned with, as the noble Lord will appreciate from the very moving story that he told about his own family, is causation. That is the issue in this type of case. You can easily show that someone has died as a result of this disease, but what caused it, when, how and whether the case has been brought within a reasonable period of time are at issue. Very often, that requires not the sort of expenditure on medical reports that you get in clinical negligence cases; it often depends on expert reports on where the asbestos was, how it was dealt with and whether there was a likelihood, which passes the threshold of more likely than not, that that particular presence of asbestos in the workplace at a particular time caused the disease from which, as in the case that I cited, many years later the particular individual dies. We can therefore see that in some cases it is a medical issue, while in some cases it is causation, but they differ—and it is quite legitimate for the Committee to consider the different type of case, as we have in our discussion of judicial review, for example. In our debate on the next set of amendments, I shall come on to the question of environmental law, where very different issues arise compared with other types of litigation. We are not looking for an architecture to involve everything; we are looking for what is right in a particular category of cases. I propose in a moment, when this amendment will I hope be withdrawn, to enlighten your Lordships a little about environmental law.

[Lord Alton of Liverpool]

My Lords, in his peroration the Minister relied on the phrase “squeezing inflationary costs out of the system”—a point to which the noble Lord, Lord Thomas, referred. The only people who will be squeezed as a result of this are those who suffered previously and who have fatal diseases. I cannot see the argument that the Minister put before the Committee this evening in the terms in which he has expressed it. As he implied at the end of his remarks, this is not about legal aid or public money; on the point about causation that the noble Lord referred to a moment ago, this is about people’s right to have access to the justice system, and not then to have to hand over any damages that they win. This is about people who have demonstrated successfully in the courts that they have become victims and who then have to hand over a quarter of the damages that they receive to pay for the action that they have been able to bring successfully.

The Minister showed enormous sensitivity to this issue as he described his own family circumstances to the Committee. When he reads the debate further overnight, he may want to reflect on some of the points that have been made. He was accused earlier of not showing flexibility. I understand the pressures placed on any Minister having to oversee a Bill of this kind, but we are only in Committee. I hope that he will share with his right honourable friend the Lord Chancellor the debate tonight and will look particularly at the questions raised earlier on by me and others about the costs involved to the public purse in not accepting these amendments. The reverse arithmetic and accounting to that which he has advanced at the Dispatch Box this evening would seem to apply, and in his refutation of the argument he did not deal with that point.

The Minister also implied that all lawyers would somehow be winners—that they would be the ones putting the inflationary pressures into the system. I remind him of the case that I cited today and at Second Reading of Norman Jones, the president of the Liverpool Law Society. This is a lawyer who is not part of a huge legal practice; he made it clear that under this dispensation it would be impossible for him to have fought the case that he successfully brought with CFAs through all the courts, right up to the Supreme Court. He would not have been able to bring that case. It is because of cases of that kind and the adverse effects on the victims as well that the Minister should reflect on this matter before Report.

During the debate, we have heard invoked the names of victims. Mrs King was mentioned by the noble Lord, Lord Bach, Marie Hughes by the noble Lord, Lord Thomas, and the Minister mentioned Betty, a member of his family. We have heard also of good lawyers; the noble Lord, Lord Martin, mentioned Frank McGuire, and vividly described his own experiences on the factory floor. We have heard about campaigners. The noble Lord, Lord Avebury, who has battled on this subject since the 1970s, and the noble Lord, Lord Wigley, both referred to Nancy Tait.

The noble Lord, Lord Bach, said to us that employers should have to make full redress and employees full restitution. He said that no one is faking mesothelioma. He also reminded us of the canards of the so-called health and safety culture, and of the compensation culture. The noble Lord, Lord Wigley, said that access to justice should not be the preserve of a few.

It is worth remembering that the mesothelioma death rate in this country is the highest in the world. That is why I do not think that the noble Lord, Lord Avebury, was overstating the case when he said that what we are doing is intolerable. He said that it is unconscionable, mean-spirited, callous and immoral. Although it is my intention now to withdraw this amendment, I give notice that it is also my intention to return with these amendments on Report if we are unable to make progress on this issue. With the leave of the Committee, I beg leave to withdraw the amendment.

Amendment 137A withdrawn.