Digital Markets, Competition and Consumers Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 31st January 2024 Grand Committee

[Lord Thomas of Cwmgiedd (CB)]

I will follow what the noble Lord, Lord Sandhurst, said and not waste any time repeating the arguments he so eloquently put. I agree completely with his analysis of the mistaken decision of the Supreme Court in PACCAR, and with his explanation of why it is so disastrous for access to justice. I also agree with his analysis of why it is necessary to put forward the two amendments in his name, which I have had the privilege to co-sign, but I will go further and deal with the cases that cannot be covered.

I will underline the Horizon litigation. I do not think an awful lot of people really appreciate that the Horizon scandal, and the miscarriage of justice that occurred, would never have been uncovered if there had not been litigation funding to support Mr Bates and others when they brought their complicated action against a very wealthy body. In Mr Bates’s recent article in the Financial Times, noble Lords will see, from the perspective of someone seeking access to justice, why litigation funding is important. In it, he said:

“Combined with the strength and stubborn defiance of my colleagues, such financing allowed us to take our case from Fenny Compton Village Hall to the High Court, securing justice, exposing the truth and clearing our names and reputations”.


It is essential that we put ourselves in a position where, for the future, someone in his position—as well as, as the noble Lord, Lord Sandhurst, said, infected blood claims, the equal pay claims and all claims by SMEs and others, such as rugby players—falls not within the scope of these amendments but rather outside it.

We sought to put forward another amendment to amend Section 58AA(3)(a) of the Courts and Legal Services Act 1990, on “Damages-based agreements”. We wanted to add a paragraph that would have read:

“An agreement under which … the funder agrees to provide financial services or assistance in relation to … the provision of advocacy services or litigation services, or … costs that the funded party is ordered by a court or tribunal or in arbitration proceedings, or is otherwise legally obliged, to pay to any other party in relation to litigation; and … the recipient of financial services or assistance agrees to make a payment to the funder in specified circumstances is not a damages-based agreement”.


This would have contained a further provision dealing with the position that that was to be treated as “always having had effect”. As the noble Lord, Lord Sandhurst, said, this was ruled out of scope. I have written to say that, if this matter cannot be resolved, I intend presently to have recourse to the procedure set out in paragraph 8.67 of the Companion to the Standing Orders and ask the House to consider the issue of scope. I gather that this is a rare procedure—with my inexperience, I have never come across it—so why am I prepared to take us down this road? There are a number of reasons, but I will give three.

First, access to justice is a fundamental right, and although I would love us all to have legal aid and bring back the position that used to exist, the pockets of the Ministry of Justice are somewhat empty and it does not have the funds with which to restore that, nor can I see any incoming Government of whatever complexion having that funding either. Secondly, it simply cannot be right, because Magna Carta says we should give justice to all people, to say, “We will provide access to justice to those who fall within the definition of consumer or who can bring their claims before the CAT, but the rest of you, no”. Thirdly, there is an international aspect and, in touching on this, it may be helpful to the amendment put forward by the noble Lord, Lord Hodgson.

I declare an interest in that I sit on the advisory board to a group at the European Law Institute which is looking at the whole question of third-party funding. It is looking at it simply because this is a worldwide issue. It is a worldwide market. The concern I had in relation to making this change broader than in the current amendments is that I want our citizens to be able to benefit from that market and not to be excluded. It is quite clear that the market is enormous. The working group of the European Law Institute, which is chaired, coincidentally, by Mrs Justice Cockerill, who was Judge in Charge of the Commercial Court until last year, contains a number of academics and practitioners drawn from across the world, including America, where this is a problem, and a judge from Australia. It is being taken forward because there is felt to be a need to have a clear statement of principles because this is now such a large industry. It is really a matter for the noble Lord, Lord Hodgson, to consider further, but the kind of work being done—it is anticipated that this body will report towards the end of this year or the beginning of next—may provide principles that either can be used on a voluntary self-regulating basis or will enable regulators or legislators to put in place principles that should apply. This is a worldwide industry and I do not wish people in this country to be excluded from it.

Although I do not wish to invoke this procedure today, I very much hope that the department, together with the Ministry of Justice, will look at this issue and see how we can bring about access to justice for everyone, not just a few, because a technical point of this kind is totally beyond the comprehension of any member of the British public. In this House we should not act in such a way as not to give equal justice and access to that justice to all people.