Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Martin of Springburn Excerpts

Monday 30th January 2012 Lords Chamber

Clause 43 seeks to abolish the recoverability of a success fee under a conditional fee agreement from the losing party in any proceedings. This will require claimants pursuing claims under CFAs to take an interest in keeping down their costs and will reduce the disproportionate impact of their costs on those who face the claims. At the moment, a claimant has no interest at all in tackling mounting levels of costs. The costs that losing parties must pay can comprise their own legal costs and the winning party's basic legal costs. That much is reasonable and applies generally in civil litigation. However, under CFAs the losing party also has to pay the winning lawyer's success fee of up to 100 per cent of the base costs, as well as the “after the event” insurance premium that can be very substantial, as we heard from my noble friend Lord Thomas. That is why a losing defendant in a CFA case can expect to pay more than double the legal costs of a defendant in a non-CFA funded case. This in turn can put CFA-funded parties at a significant disadvantage over those whose cases are funded by other means.

[Lord Martin of Springburn]

I apologise for being late for the Committee; I was travelling from Scotland. I am sure that the noble and learned Lord will acknowledge that cases that involve 100 per cent recovery are those that go to court. There are stages where settlements can be made. The defendant can make an offer that can be accepted. If it is done at an early stage there will not be the 100 per cent costs that we were talking about.

[Lord Wallace of Tankerness]

My plane from Edinburgh, too, was delayed today; I understand the noble Lord's difficulties. He mentioned the arrangement for making offers. Part 36 arrangements were spoken to by my noble friend Lord Thomas when he moved the amendment. I will come to the matter in responding to the debate.

As I indicated, very often these cumulative costs can lead defendants to feel under pressure to settle a claim when they have no legal reason to do so, through fear of incurring payment of excessive costs as the case proceeds.

Without Clauses 43 and 45, high and disproportionate costs in civil litigation will continue. Access to justice will not become more meaningful for all parties, as we intend. If all the amendments to Clause 43 were agreed, the fundamental elements of the Government's reform package would be lost, and defendants would continue to be liable for significant additional costs across a range of cases. It is useful to put the level of costs in some context. My noble friend Lord Phillips pointed out that one general liability insurer indicated that, in 1999, claimants’ solicitor’s costs were equivalent to just over half the damages paid; by 2004, average claimants’ costs were roughly the same as the damages; and, by 2010, average claimants’ costs represented one and a half times the damages received by the injured victims, and indicated that while average damages paid have increased by one-third since 1999, average claimants’ costs have increased by two and a third times over that period. These figures reflect Sir Rupert Jackson’s findings that claimants’ costs are substantially higher than defendants’ costs, and that claimants’ costs in CFA cases are substantially higher than in non-CFA cases.

--- Later in debate ---

I am grateful for the indulgence of the Committee in answering a considerable number of amendments. However, I think that it has been useful to consider this—as it were—omnibus set of amendments, which have raised all the different elements of the package. I urge noble Lords not to press their amendments.

[Lord Martin of Springburn]

On the incentive to settle early—I am trying to put this in layman’s terms—is the noble and learned Lord saying that a claimant can, through his solicitor, put it to the defendant that it would be a reasonable settlement, for example, to pay X amount or to print something in a particular magazine that would help the defendant to get his reputation back? Is the noble and learned Lord saying that, if such an offer is refused by the defendant, that would be taken into consideration by the court?

[Lord Wallace of Tankerness]

I think I understand what the noble Lord is saying and I think I gave an indication on that point. Let me just try to find that—

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The whole point of this is that we are shifting power from the vulnerable to the powerful. We are shifting the cost and putting it onto the more vulnerable. This is what these amendments are opposing. At Second Reading, the noble Lord, Lord McNally, said this was a radical shift. Well, it is, but I did not think it was as radical as I now understand it to be. It is a radical shift away from the weak and to the strong, and it is going to make it more difficult, particularly in these media applications. This Bill is not about better civil justice, it is about disadvantaging the vulnerable. That is what we should not accept and that is why we are moving these amendments.

[Lord Martin of Springburn]

My Lords, I support the noble Lord, Lord Bach. I listened with interest to the noble Lord, Lord Lester, and his comments about the rich and famous being able to take cases to court. This is what worries me about the lack of no-win no-fee. I am not concerned about the rich and famous, I am concerned about ordinary men and women, who maybe only once in their life have been defamed by a newspaper. At the Leveson inquiry one former editor said, “If it sounds good or if it sounds like the truth, just lob it in”—just to lob it in for a woman or a man who is living a quiet life is very cruel and hard.

For those of us who have approached newspapers and said, “What you have said about me is wrong”, their first reaction is, “If you don’t like it, write a letter and we will print it in the readers’ column”. How insulting is that, that I or anyone else should then make a contribution to a newspaper—which is usually a nasty newspaper that you would not even have in your home—by putting a letter into their column? That is even the line that they take with the Press Complaints Commission. Everyone knows that when anyone takes up a complaint with the Press Complaints Commission, they are not even looking for money, they are looking for some redress, and that is the first course of action that they take.

Years ago, perhaps in the 1950s, 1960s or 1970s, it used to be the case that if a newspaper printed something that was wrong about you, it was a matter between you and the newspaper. This is not the case nowadays, because when a newspaper prints an allegation, there is a press preview on Sky News or the BBC, where they get some talking heads to chew over what has been said about you that day. That means that even when you are deeply embarrassed about what has gone out, and you have not even had a chance to redress the balance, within hours of that newspaper being published hundreds of thousands of viewers are able to get a look at that newspaper because they are invited to do so by another press organisation.

I note the point that the noble Lord, Lord Lester, has made about local newspapers. When is it that people take offence at a local newspaper? There is maybe the odd individual. But a local newspaper says to itself, “We do not have the resources to involve ourselves in a law suit, so we had better be careful before we go to print”. My local newspaper is the Springburn Evening Times. While there have obviously been people who have taken exception to what it has had to say, I have never known anyone to take it to court, because as an organisation it is careful about what it does.

[Lord Lester of Herne Hill]

Has the noble Lord read the evidence that was given to the Joint Committee on the Draft Defamation Bill by various NGOs and regional newspapers, indicating the ways in which the existing law of libel has a very similar chilling effect on their ability to report and comment on matters of public interest?

[Lord Martin of Springburn]

I have not read the document, but now that the noble Lord has drawn it to my attention, I will. What I am talking about is the experiences that I have had of local newspapers. Of course, they are careful that they do not get involved in any litigation, in the same way as we—as people who have privilege in this Chamber—will be very careful about what we say out in the street, because we know that we would be subject to litigation.

However, the national newspapers are not concerned about being subject to litigation. Some of them are very rich organisations indeed. They know full well, when someone comes along—well, we have covered the rich and famous. Let us take a different situation. We, as a House, encourage people to go into public life. Once you get into public life, you are under the microscope. It may well be that Members of Parliament down the corridor are paid a better salary than your average journeyman or journeywoman—a blue-collar worker, I take it—but they are not paid so well that they can take on some of the people in the media who are vicious and nasty, and are willing to have a go not only at them, but also at their wives and families.

I know that this is about an amendment and therefore I had better not go on for too long about the whole thing. I will say, however, that ordinary men and women should be able to go and, if necessary, take their case to court. I take the noble Lord’s point that if there is a lower court that can handle it, that might be all the better. I will end by saying this: how ordinary can this situation be? An unemployed man in Liverpool, who was a pass-keeper in his local church—the person who does the collection plates and opens the church ready for the service—was accused in a publication of taking money from the collection plate that he put around. His difficulties were so great that he had to get the cheapest bus ticket from Liverpool to London to see a no-win no-fee lawyer to make sure that the balance was redressed. He won. Are we going to say of a man like that, who is unemployed, who was doing his duty in his church—someone who is respected not only by the congregation but by the whole community—and who has an accusation like that made against him, that we cannot allow him to get to court and put his case?