Civil Liability Bill [HL]

Lord Monks Excerpts

2nd reading (Hansard): House of Lords
Tuesday 24th April 2018 Lords Chamber

[Lord Monks (Lab)]

My Lords, I start by declaring an interest as a member of the board of Thompsons Solicitors, the largest trade-union-oriented firm of solicitors and a big firm in the personal injury world. I serve on the board with my noble friend Lady Primarolo, who is sat behind me.

We are concerned with the victims but also with abuse of the system. No one on our side supports abuse, and we have heard some examples of that. No one doubts that there is quite a lot of it, but nor should anyone doubt where the primary blame for some of this lies. The key to the answer to that question is in the example given by the noble Lord, Lord McNally: the insurance companies have been extremely weak. If you can concoct a claim, you get £5,000 or maybe something near it. That did not just go around one northern town; it spread like wildfire. I believe that the insurance industry bears a lot of the responsibility for the situation we are in today. Add to that the claims management industry, which has been fostered by the opportunities that have been provided, and it seems to me that as lawmakers we should be looking very much at their activities as well as remedying any abuses that are around. My worry about the Bill, particularly with the increases in the cost limits and so on, is that the blame is being put on the victims and they are the people who will lose out. I will develop that thought in a moment.

The Bill is intended to reduce motor insurance claims first and foremost and, more generally, to reduce the number of claims for personal injury at work. The increase in the small claims limit is being introduced as a package with the Bill, and of course it can be done by statutory instrument. As has been mentioned, the current small claims limit for all personal injury claims is £1,000. It is proposed to double that amount, which is well above the levels recommended by Lord Jackson as recently as 2013. Others here who know more about this subject than I do will recall that Lord Jackson was proposing that when his package was introduced in 2013, the small claims limit should be increased only when inflation had taken it up to £1,500, and thereafter in blocks of £500. He did not contemplate a doubling for personal injury cases.

A justification for the hike is that the £1,000 figure requires revision because it has not been increased since the 1990s and an inflationary rise is therefore necessary. However, an increase of sorts was made in 1999, when the limit was restricted to general damages. That was the year Lord Jackson took as the base year for his recommendations. One of the unions that has submitted information to the House, the retail union USDAW, has calculated that if the CPI had been applied from 1999 to the present day, the limit should be increased to £1,440 and on current CPI rates would reach £2,000 only some time at the start of the 2030s.

The effect of this increase on non-road traffic personal injury cases—an area where the abuse is a lot less than in road traffic claims—will be profound. At present, very few are dealt with in the small claims court, but under the proposed new regime many more would fall into that court, where legal costs are not recoverable. As a result, a lot of claimants would be unrepresented or would have to find their own resources. For union members that is probably fine, as the union would cope with that; for a sound case, that is what we do; it is a core job that we have. But the many others not in a union will be made much more vulnerable. The result is deprivation of legal representation in recovering damages for injuries and losses. The number of workplace PI cases is reducing annually, and USDAW, from its own experience, calculates that the number of cases captured by the proposed lift in the small claims limit would increase fivefold. As I say, if people are in a union, that is not such a problem, but for others, it is a big problem.

As we have heard, extra costs will accrue to the Government as well. The impact assessment acknowledges that the changes will cost the NHS £6 million, and public funds generally £140 million each year. The impact assessment goes on to confirm a benefit of an extra £1.3 billion to the insurance industry. The Government are hoping that 85% of this windfall will be passed on to the consumer in reduced premiums. I note the guarantee that the chief executives have given, so let us hope that that bears out and they live up to their promises. But they will have to forgive me for being a bit sceptical. The Association of British Insurers has admitted that the insurance industry saved more than £8 billion over five years a result of earlier government changes, yet there is no sign that insurance premiums have declined at all. Indeed, they have continued to rise. Other factors tend to crowd in on these kind of promises, and they must be held to account in keeping this guarantee. I hope the Government will confirm that they will do that.

A further worry is that the decreasing presence of lawyers will leave a vacuum into which could sweep unregulated case management companies. They are always on the lookout to increase their business, and some of them are prepared to use highly questionable methods to persuade vulnerable people that a “lottery win” is within their reach if they just listen and leave it to them.

A word on the road traffic cases. The Government’s justification for raising the small claims limit to £5,000 is that there is an epidemic of fraudulent claims. Yet that evidence should not just be taken at face value or anecdotally borne out by stories that we all tend to tell. The Association of Personal Injury Lawyers has made it clear that it believes that the figures the Government are relying on are exaggerated. The figures for actual proven fraud are rather low. All this shows that there is perhaps a need to spend a little more time checking each other’s figures because, on the current proposals, perhaps as many as 96% of all road traffic claims will be captured by the increase to £5,000.

It is therefore undeniable that hundreds of thousands of genuinely injured people could risk losing the basis for their claims being proceeded with effectively with legal representation. It should always be remembered when the House considers such things that legal claims are the primary driver for retaining and improving health and safety standards in the workplace, and that the massive reduction in the number of claims that is likely to be occasioned by these changes will have an adverse effect on health and safety standards. Deregulation in this area increases the risk of injury at work, and the Bill simultaneously would restrict the ability to seek redress. I hope we will have some substantive debate and see substantial changes to this Bill in Committee, and I look forward to getting into the detail to see whether we can make it better.

Civil Liability Bill [HL]

Lord Monks Excerpts

Committee: 1st sitting (Hansard): House of Lords
Thursday 10th May 2018 Lords Chamber

[Lord Bassam of Brighton (Lab)]

My Lords, I rise with some trepidation to enter into a debate that is so well populated by lawyers and people who know a lot better about these things than I. Perhaps I should declare a sort of interest or make an admission that while I am not a lawyer, I live with one—and her advice to me the other day was not to get into this debate. I have set that on one side for what I hope is a good reason.

I shall speak to Amendment 27A on the supplementary list. It pursues the same point that the noble Baroness, Lady Berridge, explored. I too am worried about what the Bill—a welcome, reforming Bill in many respects—will also capture and that it will put off, deny and deprive access to proper compensation to those who, in the course of their employment, drive for a living. I am thinking of public service workers, ambulance drivers, firefighters, police officers and those in the distribution sector. I am worried that the Government have it wrong and that the legislation will capture people they do not want to. I cannot see, and we have not yet seen, evidence that there is widespread fraud. I am also concerned that in cases involving people who drive as a product of seeking their living and who are injured in the course of their work, perhaps by someone else’s negligence or when they have been working for a supplier contractor, they end up being undercompensated.

Like the noble Baroness, Lady Berridge, I should like to probe the Minister’s intent. Can he assure us that such claims will not be affected in the way in which they potentially are? We are both seeking assurances, some evidence and a hope that damages suffered by those in the course of their work will continue to be assessed in the usual way. That is only fair, right and proper. I am sure that the Government would not want to unwittingly—perhaps inadvertently—damage such people’s interests. While a claim culture exists, stimulated by an industry that is very driven, we do not want to harm those who are rightly seeking compensation for an injury that they have suffered.

[Lord Monks (Lab)]

My Lords, I follow for a moment the line that previous speakers have addressed. I understand that the Scottish position is different from that proposed in the Bill and that people injured in the course of their employment are treated differently from others. It would be interesting if the Minister, with his extensive knowledge of the Scottish position, could outline what the different reasoning might be. I am not asking him to speak for the Scottish Government, but I am sure he understands how Scottish practice has developed in a different way.

A number of us are concerned that this is a Bill for the insurance industry, tackling problems that it should have addressed itself. If insurance companies were paying out claims without properly investigating, if they were making money available just because it was too much trouble for them to assess the honesty of those making the claim, they have spawned the industry that we are now grappling with and trying to make sense of. The insurance industry should put its own house in order, not come crying to the Government too often to say, “You should do this for us with legal changes”.

I am conscious that we could have a problem with drivers who get injured and are covered by the road traffic laws being treated differently from a driver of a forklift truck, say, who has an accident in the factory or depot, and is not covered by road traffic law. There are inconsistencies here which, I understand, the Scots have addressed differently from the position under the Bill. The Minister shakes his head, and I stand to be corrected, but I should be interested in his observations on that point.

[Lord Faulks]

My Lords, the noble Lord, Lord Monks, makes a good point: the insurance industry has its share of responsibility for what has occurred in its eagerness to settle claims which may not have been genuine to save the cost of going to court to argue the matter, but to describe this as an insurers’ Bill may be to overstate the case. In the Bill, we are all concerned to stamp out what has been a widespread fraud—not at the expense of genuine claimants, of course, but I do not think anyone looking at the statistics could deny that there has been a serious and long-standing problem that needs a solution.

The noble Lord, Lord Beecham, mentions the Chief Medical Officer in one of his amendments. Of course, the definition of whiplash and the approach to it should be informed by medical opinion, but I respectfully suggest that, ultimately, we as a legislative body have to grasp that definition and approach, bearing in mind medical evidence but nevertheless seeking to identify what is going on in the real world, rather than simply tying ourselves to a medical definition which may of itself be imprecise.

As to where the cut-off should come—whether it should be 12 months or two years—it will always be somewhat arbitrary. However, there seems to me a risk that if we reduce it to 12 months rather than two years, we can anticipate a number of medical reports suggesting that matters should resolve themselves in, say, 18 months—not the more reputable medical experts, but, I am sad to say, not all of them have in the past been in that category.

The point made by the noble Baroness, Lady Primarolo, about the availability of therapy in various contexts is good but, as I understand it—my noble and learned friend will correct me if I am wrong—we are concerned here with damages for pain, suffering and loss of amenity. That does not preclude damages for loss of earnings or for the cost of medical expenses, whether for therapy or otherwise, which can be recovered in addition to the tariff claim. I hope that that is some answer to the question of whether those matters can be attended to following an accident.

As to the argument about whether employment should be an accepted category, while that might have some initial attraction, I would counsel against that approach. I can imagine a revision to the standard message following any such amendment. It would be, “We understand you have recently been involved in an accident while you were driving in the course of your employment”. That would inevitably follow if we narrow or exclude incidents arising from employment. Whether you are driving in the course of your employment, recreation, or whatever the reason, you are equally likely to—

Civil Liability Bill [HL]

Lord Monks Excerpts

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

We think that the prospect of the greater use of periodical payment orders will be in the interests of the system and of many of those who have suffered extremely serious injuries. We would like to see that process set in being, but then properly reviewed. There are concerns—we have heard some of them already—about how it would operate. We will need a commitment to the review after a reasonable time to ensure justice is being done for those who have suffered and that society as a whole accepts its responsibility for ensuring they have adequate compensation adapted to their particular needs as far as possible.

[Lord Monks (Lab)]

My Lords, I too welcome the engagement and interest of the noble and learned Lord, Lord Woolf, in Part 1 of the Bill, which we will return to at certain points on Report. On Part 2, I am one of the nudgers mentioned by the noble Lord, Lord Sharkey, in seeking to promote the greater use of PPOs in assessing people’s compensation.

A large part of the compensation in serious PI cases are the costs of care. These tend to rise faster than the price index, which is all that the index-linked gilts yield approach protects against. In the PPO regime, this is allowed for explicitly by indexing care costs to an index of carers’ earnings, but this has not been carried forward into the lump sum compensation regime, although the Damages Act allows for different discount rates to be applied for different purposes. As a result, most large cases result in significant undercompensation for the claimant if they live an average lifespan.

The PPO is a much better method of compensation, since it goes on as long as the claimant lives. I understand that it is used by the NHS and government departments. Insurance companies, on the other hand, are highly resistant to settling by PPOs unless courts impose them. Only a small number of cases go to court; the vast majority are settled outside. Understandably, insurance companies do not want an outstanding liability which might last for many years. Regulators require them to reserve on a basis stronger than index-linked gilts for lump-sum entitlements.

As the amendments suggest, there is a need for regular reviews of the discount rate, as yields have fallen steadily. I hope that the Minister can respond positively to the nudging from different parts of the Committee on this important question.

Civil Liability Bill [HL]

Lord Monks Excerpts

Report stage (Hansard): House of Lords
Tuesday 12th June 2018 Lords Chamber

[Lord Monks (Lab)]

My Lords, I will add briefly to the points that have been made by my noble friends on Amendment 47. I declare an interest: I am associated with Thompsons Solicitors, one of the largest trade union solicitors in the country. In its current form, the Bill will deter claims for personal injury for many vulnerable, low-paid people. The inequality of arms which exists when someone tries to bring a case will be overwhelming for many people. I note from UNISON’s brief—which most noble Lords got—that it did a survey of people it had helped to get compensation. This found that 63% would not have taken the case if they had not had a guarantee of legal support and an opportunity to recover costs. There is an absence of good information about the effects of these changes, so that is probably as good as any. There will be a deterrent effect on this sector of personal injury.

When speaking to an earlier amendment, the noble Lord, Lord Hunt, was rather dismissive of the access to justice argument, which a number of lobbyists have drawn to the attention of those who follow this subject. The information supplied by UNISON and others shows that there will be a lot of people who will not take cases who otherwise would have done under the present limit. On this side of the House, we are looking to temper that kind of approach by the Government. The noble Lord, Lord Hunt, will know from his experience with the Transport and General Workers’ Union—to which he referred—that for low-paid and vulnerable people a period off work for an injury or illness is a big deal. It is not to be assumed that employers will automatically cover the cost. These people experience the cost of illness more than those of us in comfortable jobs.

Amendment 47 seeks to tie the Government to the recommendations made by Lord Jackson in his review of civil litigation costs. These said, in effect, that there should be an increase in the small claims limit only when inflation justifies it. The Justice Committee in the other place very much agreed with that in its recent report. That is what leads to the figure of £1,500, an increase based on changes in the CPI, rather than the £2,000 which the Government are pressing for. I note that the Justice Committee was deeply unimpressed by the inability of the Ministry of Justice to quantify the impact of raising the small claims limit for employer liability and public liability claims to £2,000. That is the crux of the issue addressed by the amendment. I hope that in light of these points, and those made so ably by my colleagues, the Minister will soften a little bit and look at the plight of the people at the bottom, the most vulnerable, those who are struggling, those who lose money when they are ill and off work, and so on. Without labouring it too much, I hope that the Government can see our point rather more clearly than they have done so far.

[Lord Judge (CB)]

My Lords, as it has not emerged that the amendment is the property of the Opposition, perhaps I may add a few words in support of Amendment 47.

Lord Justice Jackson’s report was a remarkable document. It exhaustively analysed the entire structure of our civil justice system. It would not have supported the present Government’s position. I would love to read out the Justice Committee’s report—but, if I did, we would be here awfully late and no one would want to hear it. However, can we briefly recognise that the Justice Committee report is not adverse to the Government’s proposal but deals a series of hammer blows, each one individually worth noting?

“We recommend the Government should not increase the small claims limit to … £5,000”.


Bang.

“There is no policy justification for including vulnerable road users within the reforms proposed”.


Bang.

“We recommend that they be excluded from any higher small claims limit that is imposed on other RTA PI claims”.


Bang.

“We are deeply unimpressed by the inability of the Ministry of Justice to quantify”.


Bang.

And so it goes on. This is not one of those reports with recommendations that obscure their meaning, and perhaps the Minister will consider that as an important feature of this debate.

Civil Liability Bill [HL]

Lord Monks Excerpts

3rd reading (Hansard): House of Lords
Wednesday 27th June 2018 Lords Chamber

I should point out that Amendment 6 is identical to the Amendment 90 tabled on Report by the noble Earl, Lord Kinnoull. It was he who spotted the commencement problem and first proposed the solution, so any credit really belongs to him. I am also deeply obliged to the Ministers and the Bill team for their thorough, extensive and always courteous engagement. I beg to move.

[Lord Monks (Lab)]

My Lords, perhaps I might mark this Third Reading by drawing attention to what I regard as the significance of the Bill. It is not just a technical Bill about the many legal procedures and complications which we have debated. It is a Bill which, particularly in its relationship to the small claims limit, will have a profound impact on around 350,000 people a year, who we estimate will be left without the free legal cover that they now experience. That is as a result of the rise in the small claims limit. The Minister is looking a bit askance at me as I speak on this amendment, but it seems to me important that we mark the fact that this is a Bill of real significance to a lot of vulnerable people in this country.

Those of us who have been concerned with this issue have been hamstrung by the fact that we have not managed to secure the small claims limit to be within scope of the Bill. We did, in the end, find a way to debate it on Report and there was a vote on it, which I accept that we lost, but we had little time to brief Members of this House or to campaign more widely. I give notice that we will return to the small claims limit issues in any way that we can. I draw the Government’s attention to the fact that one of their justifications for the rises has been to use RPI movements, but the national statistician is now on record as saying that the RPI is a very bad statistic. The CPI is certainly the way to go and it would produce a small claims limit, in the way that Lord Jackson recommended, of £1,500 rather than £2,000. That would make an appreciable difference.

Will the Government think a little further about this issue? Will they reflect on it again, even at this late stage as the Bill goes to the other place? I know that appeals to a Government’s better nature do not usually get very far, but I hope that an exception will be made in this case, and that the right thing will be done after all the debates we have had. The Bill would be improved if the associated measure on the small claims limit was adopted in the way that we have been proposing.

Civil Liability Bill [HL]

Lord Monks Excerpts

Ping Pong (Hansard): House of Lords
Tuesday 20th November 2018 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

I raise a narrower point than that of the noble Lord, Lord Sharkey. I refer to the Government’s Amendment 1 where, notwithstanding the heavyweight legal artillery from the noble and learned Lords, Lord Judge and Lord Hope of Craighead, I would like to probe the thinking a little further. What is proposed seems undesirable in a number of aspects, not least of which is that it may put the Lord Chief Justice into a conflicted and undesirable position.

Clause 3, to which the amendment applies, is entitled “Damages for whiplash injuries”. The House will be aware that because of the difficulty of diagnosis—as we have heard from my noble and learned friend—whiplash has provided easy pickings for the fraudulent over several years; in the vernacular of our early debates, the phrase was “cash for trash”. Millions of motorists’ insurance premiums have been unnecessarily increased. The Government—sensibly, in my view—introduced the blanket figure to cover all injuries with a duration of less than two years. That was discussed extensively and amended during the passage of the Bill here and in the other place. It was not, and is not, an uncontroversial policy decision. It remains an issue about which different parts of the House and different political parties have strong views.

Clause 3 is about money and the compensation payable under the whiplash tariff in different circumstances. I invite my noble and learned friend and the House to look at subsections (1) to (5). In each of those, the key word is “amount”—the amount of damages due and payable in different circumstances. The clause provides that these amounts are determined and laid out in regulations by the Lord Chancellor. Under this amendment, as my noble and learned friend pointed out, there would be another hoop to go through, in that the Lord Chancellor would have to consult the Lord Chief Justice before making regulations under the clause. The discussion in the House of Commons was pretty threadbare. I am concerned that the Lord Chief Justice may find himself dragged into policy areas which are not to his advantage. The clause is about money, not process. I ask my noble and learned friend to consider the options available to the Lord Chief Justice when the Lord Chancellor turns up at his office and presents the new tariff. As far as I can see, he has only two. Either he can accept without demur, or he can say that he thinks the proposed new tariff is too high or too low. If he does the latter, on what grounds would he make that judgment? What expertise does a judicial figure, the Lord Chief Justice, bring to the determination of these monetary figures? What expertise is available to him that was not available to the Lord Chancellor in making his original determination?

I make it clear that this is not an attack on the Lord Chief Justice. Indeed, it is intended to draw attention to the difficult position that future Lord Chief Justices may find themselves in as a result of this amendment. They would either have to act as a cipher and simply tick a box, or require amendments to figures that will remain politically highly charged. That runs the risk of the role becoming politically tainted, and further involving the Lord Chief Justice in the determination of matters on which the courts and justice system would later, no doubt, have to adjudicate.

It is not desirable for the Lord Chief Justice of the United Kingdom to be seen either as a cipher or as a participant in political processes. I look forward to hearing from my noble and learned friend why I have so gravely misjudged the situation.

[Lord Monks (Lab)]

My Lords, I declare an interest as a non-executive director of Thompsons, a leading personal injury firm. I have two or three questions for the Minister, particularly on Amendment 1. I thank him for the reply we received to the letter he referred to.

The House of Lords Regulatory Reform Committee advised that the key measures in this Bill, including the levels of compensation for claimants under the tariff scheme, should feature in primary legislation, not secondary. The Constitution Committee said that Ministers should follow this advice unless there were clear and compelling reasons not to. There seems to be a trend for the Government to seek wide delegated powers that permit the determination and implementation of policy. The Constitution Committee warned that the restraint shown by noble Lords towards secondary legislation might not be sustained—a serious warning to the Government that, if this trend continues, secondary legislation might be much more difficult to accomplish. I will be interested to hear the Minister’s comments on that.

Secondly, given that the employer liability clauses will not be dealt with through the new online portal, which is being reserved for whiplash claims, can the Minister confirm that the courts will be able to cope with what will undoubtedly be an increased number of claims without the presence of expert legal representation? It is estimated that they could increase from 5% to 30% of the total number of cases. Can the courts manage that extra responsibility?

Finally, what is meant by “in the long term”? This relates to paragraph 5.66 of the whiplash impact assessment accompanying the Bill, where the Government state that, taking into account adjustments to pre-action protocols, they consider that

“in the long term the courts would operate at cost recovery”.

I would be grateful for an explanation of what cost recovery means in this context.

[The Earl of Kinnoull (CB)]

My Lords, I shall speak to Commons Amendment 3 and shall make a general point about all the amendments in the round. I declare my interests as set out in the register—in particular, those in respect of the insurance industry. I would very much like to add my thanks to the Minister, the noble Baroness, Lady Vere, and the Bill team, who have been very courteous and warm as they have engaged with me, particularly on Amendment 3.

We spent a lot of time discussing the area covered by Amendment 3 in Committee and on Report, and even slightly at Third Reading. The amendments suggested in this House—there were quite a few of them—had a common theme: they were short and clear, and they instructed the FCA to act, as it were, as the scorer and to work out how it would ascertain whether insurers had in fact handed the money back to customers.

The section of the policy note, which the Minister referred to, entitled “Context and overall approach to amendment” refers to an intent to:

“Hold insurers to account in a way that is sufficiently rigorous”,


and to:

“Avoid intervening in an already competitive market or placing disproportionate burdens on insurers or regulators”.


I am very grateful to the Minister for confirming that those should be the guiding principles for the FCA as it begins to consider the best way to discharge this duty. I find the three pages of new Clause 11 pretty difficult and they are potentially extremely onerous for insurers. I note that, depending on how you construe new subsection (2), insurers might also have to report on every single comprehensive household policy they have, because injury cover is possibly included in that. I could make other points on that too.

We now know that this amendment was drafted by a committee full of highly intelligent people, including insurers, obviously very intelligent lawyers, accountants and officials. Of course, we all know that when you put a committee together, you get a camel, and I am afraid that it is a bit of a camel. However, I say again that I am very grateful to the Minister for confirming that the policy note will trump what is in the legislation, as that is important.

That leads on to my general point about the Bill. In Committee I referred to the 2016-17 annual report of NHS Resolution. It stated that moving the discount rate from +2.5% to -0.75% meant that the cost of medical negligence in the UK every year would rise by an extra £1.2 billion. That means that every day £3.3 million is not being spent on the NHS front line. If the personal injury discount rate, which is in Part 2 of the Bill, went up—perhaps not all the way up to 2.5% but maybe to 1%, which is currently the case in France—that would release around £1.75 million a day to the front line of the NHS. In a nutshell, the quicker this Bill passes, the better. My one question for the Minister is whether he agrees with that point.