Civil Liability Bill [HL]

Lord Beecham Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Tuesday 15th May 2018 Lords Chamber

[Lord Woolf (CB)]

My Lords, we have had great help on this subject in the preceding speeches. Perhaps I should begin by giving my thanks to the noble and learned Lord, Lord Mackay, who is in his place, because many years ago he gave me the task of looking at civil justice with a view to producing a report on access to justice, which I did. Since that time the report has had a significant influence. However, when I wrote that report I could not possibly have anticipated the changes that would be needed as time went on, and what has just been said by the last speaker emphasises the fact that perhaps there are advantages in learning from experience.

There is no doubt in my mind about the problem that this Bill is intended to deal with, particularly in Part 1. Unfortunately, I could not take part in the discussion that took place on that part because I was not in the country at the time, but I shall try to avoid saying on Part 2 what I failed to say on Part 1 and thus use up the time of the Committee. However, to some extent one has to look at the whole of the situation in order to get the context. I would emphasise that although the Government’s motives here are good, they must appreciate that there are real dangers in interfering with the normal machinery used for dealing with questions around the assessment of damages which follow injuries. It is very important that justice is done in the case of small damages claims just as it is in large claims. One of the matters that I complain about in the whole of the Bill is that it is taking on responsibilities which are better dealt with elsewhere.

First, it is obvious that the assessment of damages has always been the responsibility and under the control of the judiciary. Indeed, following my report, it was initially felt that legislation was not required because the Civil Procedure Rule Committee and other methods existed which meant that changes could be made that were flexible. What one really has to do is get the culture right, and the culture is that those who are justly entitled—not those who make false claims—are given the proper award by what justice lays down for them on the circumstances of their case. I may well come back to this subject on Third Reading or on Report because Part 1 introduced principles that, as far as I saw it from what was said, were novel in so far as they distinguished between two people with very similar claims in the same circumstances by imposing artificial caps on damages. That leads to bad justice, I would say, in the sense of unfairness, as was said by other noble Lords when considering Part 1.

Coming on to what is being proposed—particularly by the noble Lord, Lord Hodgson, in his admirable remarks in support of his amendment—I want to make it clear that this matter is very important. Obviously, it is very desirable, as a matter of principle, for the courts to be given the power to make awards that will reflect the future. You cannot complain if the situation changes, so as to make the award of compensation either too low or too high, if it is able to be put right. As I understand it, the noble Lord, Lord Hodgson, has suggested machinery for doing that very thing, which is obviously a very significant change from what has happened so far in the courts. Therefore, leaving it to the courts to exercise flexibility and carry forward the principles that the legislation could support, as far as the detail in individual cases is concerned—so that they evolve with experience as well as with the change of facts—would be a very much better and more just result for the litigant. In fact, it would lead to economies in costs, which was one of the Government’s motives in the legislation.

If we have bad law, people will want to challenge it. They will argue against it and seek to lever the facts of their case into a situation that does not justify that approach. However, having a broad and wide approach that evolves in the way I said it should, and can—because of the intervention of either the rule committee or practice directions, which can be done by judges without the committee—is a much better way forward. In principle, we want to take what has been urged by the noble Lord, Lord Hodgson, and apply it. That would leave it to those who do the work day by day to do it in the best practical way.

[Lord Beecham (Lab)]

My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Woolf. We very much look forward to his participation at this stage and on Report.

At the outset of our discussion on Part 2, I want to set out the underlying approach that we on these Benches are adopting. The Bill and the problem that it seeks to address in Clause 8 represent a challenge to two groups. The first comprises those who have suffered serious injuries that, in many cases, will have a lasting impact on their well-being and will engender financial loss, expense, pain and discomfort. The second group includes the first one, but it potentially extends to everyone who will require the services of the National Health Service at some point. We ought not to protect the second group at the expense of the first by artificially limiting the compensation payable to victims of negligence, whether by the NHS or other parties. We should look at ways to fund any liabilities incurred by the NHS for clinical negligence claims as part of society’s financial responsibility to maintain the service, rather than looking to victims to do so.

Periodical payments, to which noble Lords have already referred, clearly have an important future role and we would certainly wish to see them carried forward. The amendments before us touch on a number of issues. Amendment 92 calls for a review of periodical payment orders within a period of six months of this part of the Act coming into force. That might be too tight a timetable. The work certainly needs to be done, but that strikes me as potentially rather early.

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[Baroness Bowles of Berkhamsted (LD)]

My Lords, I apologise for not having been able to speak at Second Reading. I will briefly intervene on these amendments, because I find the content of all of them quite persuasive. The mover of Amendment 56 touched on an important point: who owns the risk if you accept a lump sum payment instead of periodic payments? If, hopefully, the routine is that in most circumstances, one finds out what a periodic payment would look like, one needs to consider this: if you prefer to have a lump sum and take the investment risk, the person who makes that choice owns it, which in turn reflects upon how you would make presumptions about their investment strategies. I intended to touch on this when we come to my amendment in a later group, but as this is the other side of the argument, I wished to raise that point now and to say that I am in the “shove” rather than “nudge” brigade.

[Lord Beecham]

My Lords, the noble and learned Lord, Lord Mackay, referred at Second Reading to Clause 8(3) and the assumptions to be followed in determining the rate as set out in, notably, paragraph 3(3)(a) of proposed new Schedule A1, in which the Lord Chancellor must assume that the relevant damages are payable in a lump sum rather than under an order for periodical payments.

Paragraph 3(3)(d) of proposed new Schedule A1 prescribes an assumption that the relevant damages are invested using an approach that involves,

“more risk than a very low level of risk, but … less risk than would ordinarily be accepted by a prudent and properly advised individual investor who has different financial aims”.

The noble and learned Lord observed that the Lord Chancellor would have to have,

“a certain element of the prophet about him”,

and that:

“Getting an expert panel to agree … will be very difficult” .—[Official Report, 24/4/18; cols. 1504-05.]


Perhaps the Minister could confirm this, or make it clear that this a not-for-prophet provision.

The decisions that will be made will impinge heavily on the innocent victims of negligence or breaches of statutory duty over a wide range of circumstances, hence the noble Lord’s amendment that would provide that an order may distinguish between different classes of case by reference to the description or anticipated scale of future pecuniary loss involved. But the amendment to Section 1 of the Damages Act 1996—in Clause 8, lines 29-34—which states that the provision of the preceding subsection requiring the court to,

“take into account such rate of return (if any) as may from time to time be prescribed by an order made by the Lord Chancellor”,

is qualified such that it,

“does not however prevent the court taking a different rate of return into account if any party to the proceedings shows that it is more appropriate in the case in question”.

This seems to create the possibility of the courts departing significantly in individual cases from the Lord Chancellor’s prescribed tariff. This would be welcome, but can the Minister confirm that that is the intention behind the Bill in that context?

I certainly endorse the noble and learned Lord’s Amendment 57A and I hope the Government will adopt it.

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[Lord Hunt of Wirral (Con)]

My Lords, I declare my interest as set out in the register, particularly as a partner in the global commercial law firm DAC Beachcroft. I completely agree with the words of the noble Earl. I understand that it is a favourite expression of officials in the Ministry of Justice that they are proceeding “at pace”. This group of amendments and the important concept of a shadow process prior to Royal Assent at Amendment 89, which we will look at a little later, give the Minister a range of options from which to choose to demonstrate that he intends to do just that.

I will focus on and entirely support Amendments 58 and 94. The Bill allows a number of different periods, which could lead to delay. The amendments ask the Minister to consider better and more rigorous options. The idea of any delay between Royal Assent and commencement is of particular concern because it is open-ended and uncontrolled. As has been mentioned, in his letter of 30 April to noble Lords the Minister suggests that a period of two months may be needed, but there is no indication why. No regulations are needed. The decisions that need to be made to constitute the expert panel, as just mentioned by the noble and learned Lord, Lord Judge, are obvious ones, and even if they have not been made already, the Minister still has a few months before Royal Assent in which to consider them.

My concern is that there is nothing to keep it to two months; it could turn into two years or more. I recall that the Third Parties (Rights against Insurers) Act 2010 was an uncontroversial statute, so much so that it was first considered in this House under the accelerated procedures for Bills proposed by the Law Commission, and indeed I participated in those debates. It received Royal Assent on 25 March 2010 but was not brought into force until 1 August 2016, more than six years later. I am sure that that will not happen in this case, but it is an example of how open-ended periods can give rise to all sorts of uncertainty and problems.

I am personally attracted to the idea of removing any possible delay between Royal Assent and commencement or between the commencement of Part 2 and the start of the first review. I therefore earnestly encourage the Minister to find a way of accepting these two amendments.

[Lord Beecham]

My Lords, I simply wish to confirm that we on this side agree with what noble Lords have suggested, so the quicker we can get things moving, the better for everyone.

[Lord Keen of Elie]

My Lords, I believe that we are as one in our desire to see these provisions brought into force as rapidly and as sensibly as possible, and all of these amendments stem from the entirely reasonable, and indeed strongly argued, wish for the review to be carried out in order to minimise the impact that the present discount rate is having—disproportionately, one would venture—on defendants and in particular on NHS Resolution.

As I explained in writing to noble Lords following Second Reading, to which the noble Lord, Lord Sharkey, referred, the Government remain fully committed to beginning the first review of the rate promptly after Royal Assent and to completing that first review as soon as is practicable in 2019. To that end, I indicated that although the expert panel cannot be appointed before the power to do so has been created, preparatory work on the setting up of the panel is already under way and the Government will progress the appointment process as far as they properly can before Royal Assent. I hope that that goes some way to meeting the point made by the noble and learned Lord, Lord Judge. As part of that preparatory work, the Government intend to publish the draft terms of reference for the expert panel in time for the Report stage of the Bill in this House. However, the appointment of the expert panel cannot take place until after Royal Assent and thus the completion of the appointment process cannot be predicted with absolute certainty.

The effect of Amendment 58 and its related Amendments 63 and 66 might be to force the Lord Chancellor to delay commencement or risk the time to conduct the review being eaten into, thereby reducing its effectiveness. We have in mind the stages that have to be gone through. Amendment 59 would reduce the period of time within which the first review of the discount rate must be started following commencement from within 90 days of commencement to 10 days of commencement, and other amendments specifying 30 days have been referred to as well.

What I would emphasise is the word “within”. These are outliers, but we are determined to carry out the process as swiftly as we reasonably can. Having regard to that, however, we have to make provision for any uncertainties that may emerge, and therefore to fix too stringent a period might impact adversely upon the whole process that we want to carry out. In other words, while it is important to move quickly, it is also important to ensure that any review is completed fully and properly and is not going to be the subject of untoward challenge.

As I have said, the appointment of the expert panel to advise the Lord Chancellor simply cannot take place until after Royal Assent and even then it may still take a little time, despite the preparations that are ongoing even now. If the review starts without the panel being ready to start work, the whole task is going to be thrown into some difficulty.

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[Lord Beecham]

My Lords, I have two amendments in this group. They are fallback amendments, because noble Lords will see that I have joined the noble Lords, Lord Sharkey and Lord Marks, in signing up to Amendment 74. That is certainly my preference; these are fallback positions which at this stage I would not like to advance over the amendments in the name of the noble Lord, Lord Sharkey, although we may have to see how it goes on Report. It may be necessary to have a fallback position in light of today’s debate. I am sceptical, to put it mildly, about treating these critical issues as matters for political decision. Despite what some noble Lords have said, I would have been happier to see that replaced, but we will have to wait until Report before we come to a conclusion about that.

[Lord Cromwell (CB)]

Was the noble Lord speaking to Amendment 77 or to Amendment 74?

[Lord Beecham]

I was speaking to Amendments 74, 77 and 84.

[Lord Cromwell]

In that case, I shall speak in support of Amendment 77 and cover Amendments 82A, 85A and 90A, which are tabled in my name as probing amendments.

I do not want to make a Second Reading speech, but will open with three points. The first is on the context of the amendments in my name, which is that we are talking about a one-off payment. It has to last the recipient the rest of their days, which is a pretty daunting prospect. Will it keep pace with inflation? Will the recipient die before or after the money runs out? Will the UK and global economies do any good in the next 10, 20 or more years? What returns will be achieved each year from now until the recipient’s death? No matter how clever the Lord Chancellor or expert the panel, these will remain unknowns or, at best, haphazard guesses.

The one thing we do know is that if the discount rates rise, which this Bill is intended to achieve, returns to recipients will fall. By raising the discount rate, we are saying that the investor must—they have no choice—take on more risk. We oblige them to do so. This calls into question the underlying principle of achieving 100% compensation.

Let us not take false comfort from the idea of an expert panel. This is a group of five people who will have to come up with a series of “best guesses” and then seek to arrive at a “best guess of those guesses” to suggest to the Lord Chancellor. The Lord Chancellor remains free to override them.

My concern is that, in its enthusiasm for reducing costs to the NHS and others, the panel will be encouraged in various ways to impose risk on recipients which they are not equipped to gamble with. If the panel does not do so, the Lord Chancellor may. I expressed my concerns about the make-up of the panel at Second Reading, so I will spare your Lordships a repeat of that. We should not forget that the Chancellor is acting for the Government in many of the highest-value cases. That seems a conflict of interest.

What should we do? If the panel is trying to determine a rate on which so much life-altering importance hangs and if we are allowing the Lord Chancellor potentially to vary that rate, we need to be assured that, as far as possible, the rate arrived at is the result of a transparent process and not some magic number produced from a black box and then applied.

My amendments seek to achieve three things: to oblige the Lord Chancellor to a greater extent than the Bill suggests to take account of the panel’s deliberations; to make the panel more transparent in its deliberations and conclusions; and to enable the panel to take into account the realities that the recipient will face in the real world—taxation, inflation and management charges. In the Bill, it is the Lord Chancellor who may take these things into account.

Anyone who has worked in investments knows that such costs are a key determinant of actual returns. With RDR and MiFID II, such charges—for example, management charges—are becoming far less opaque than they used to be. Surely the panel should present the Lord Chancellor with a fully baked rate, not a half-cooked one that has significant ingredients missing.

Turning to the specific amendments, Amendment 77, to which my name was added, obliges the Lord Chancellor to take proper account of the panel. It relates to Amendment 78 in a later group, but that requires matters not to be left simply to the Lord Chancellor’s opinion. I anticipate others speaking to Amendment 77, so I shall leave it there and speak to Amendments 82A, 85A and 90A which are in my name. On Amendments 82A and 90A, the expert panel are supposed to be the experts but they are denied the opportunity to consider the rate in the round, rather than give the Lord Chancellor the half-baked suggestion I referred to a moment ago. The Bill as drafted just provides the Lord Chancellor with opportunities to select his or her own rate. Amendments 82, 82A and 90A place the making of key assumptions where they belong: with the expert panel. Amendment 90A also requires a reasoned explanation by the panel of its decision. This is vital for transparency and understanding. It is also the basis, one hopes, for its voting and for discussion with the Lord Chancellor, including any override that he or she may choose to impose.

Finally, Amendment 85A in my name is again about transparency. Under the Bill as drafted, the Chancellor must give reasons for and publish,

“such information about the response of the expert panel … as the Lord Chancellor thinks appropriate”.

No, my Lords: the Lord Chancellor should publish what the expert panel advises and give a reasoned explanation if he or she departs from its advice. Echoing the point made by the noble Lord, Lord Sharkey, a few moments ago, just as the Bank of England publishes the voting pattern, so the voting pattern cast by this panel should be published. Only then will we have a clear basis for understanding how the rate has been suggested, whether the Lord Chancellor has altered it and, if so, why. The setting of the rate, we should remember, will have fundamental effects on the lives of people in very distressing circumstances. Surely, they and we have the right to an understanding of what has gone on. My amendment builds on what is already proposed in the Bill but will, I suggest, lead to clearer and more transparent outcomes that are therefore more meaningful, more useful and less open to the temptations of distortion.

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[The Earl of Kinnoull]

I am sorry if I have confused the noble Lord. I am merely saying that once the review has been sparked off by the Lord Chancellor’s decision—it does not matter what the periodicity is; I was very interested in the arguments advanced by the noble and learned Lord—it should take place at a reasonable pace, because somebody is suffering if it is done slowly. That is the purpose of trying to trim the rates. This is not difficult; one discount rate has been set by a group of people who will have exactly the right sort of skills. I therefore think it can be done a bit quicker but, as I said, it is probably best discussed not in the Chamber but with the Minister.

[Lord Beecham]

I am not really persuaded by the logic of the amendment of the noble Lord, Lord Faulks. It is not as if all claims will be faced with a five-year period. If a case is brought two years before a review, the courts will be dealing with a more recent determination than if it had been five years. I do not see the advantage of the noble Lord’s proposition. There will be some cases that will obviously be closer to that date than others.

[Lord Faulks]

May I help the noble Lord? When you are coming up to a review period, whenever that is—whether of three years or five—there will be an element of one party or another seeking to guess the outcome. My point is that you do not come up to that cliff edge so often if it is five years rather than three.

[Lord Beecham]

Yes, but if you bring your case a year or two before a review, whether it is a three-year or a five-year review, your position is not changed, is it? I just do not see the logic of the amendment, and I will not be supporting it.