Civil Liability Bill [HL]

Lord Trevethin and Oaksey Excerpts

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

[Lord Faulks (Con)]

My Lords, I declare an interest as a racketeering lawyer, as my noble friend Lord Blencathra would have it, although it has been some time since I was involved in whiplash claims.

I accept that there are genuine whiplash claims and that some whiplash problems last for a considerable time and can cause difficulties that continue well beyond six months, 12 months or even two years. The majority do not. However, the legislation we are concerned with here ought to be clear—I agree with all noble Lords who have said this—which would mean a definition in the Bill. This has been a problem for this Government and previous Governments and we have to accept that we are dealing with a slippery and powerful opposition in trying to pin down this racket.

Whiplash injuries have an attraction for fraudsters because, as no doubt my noble friend Lord Ribeiro will confirm, they are difficult to prove or disprove on medical analysis—they do not show up on scans of any sort—and doctors have to rely on the veracity of the patient to satisfy themselves that they may or may not have whiplash symptoms.

We do not want to pin down a definition of whiplash injuries and the nation’s necks appear to improve, only for its lower backs to deteriorate, and suddenly we are invited to consider claims in which, as a result of some movement of the thorax, lumbar or cervical regions in an accident, all the symptoms are referable to the lower back, which is outside the definition and would be equally difficult to prove or disprove. I therefore counsel the House to use caution in saying that we must pin down the definition. As legislators that is of course desirable but we want to help the Government to deal with this problem.

A similar issue arose during consideration of the Psychoactive Substances Bill, when everyone in the House said that we must be clear as to what the substances are and put them in the Bill. However, the conclusion was that we should not do this because of the infinite adaptability of those who produce such substances. While I sympathise as a matter of principle with those who have spoken—I will listen with interest to what my noble and learned friend says—we should be careful not to do anything which may assist those who have perpetuated this racket.

[Lord Trevethin and Oaksey (CB)]

My Lords, I support everything that has been said by every lawyer who has spoken this morning. Clearly, the Bill needs a definition. However, I also agree with what the noble Lord, Lord Faulks, has said about the difficulty that has arisen in constructing the definition.

The House will not be able to tell whether the Bill will work as a matter of practical justice until we see the definition. It will need to be a broad definition for the reasons given by the noble Lord, Lord Faulks. It is easy to foresee that when the Bill passes into law, as it probably will, there will then develop heavy tactical warfare between those acting on the claimant’s side and those acting on the defendant’s side, which will be focused on the precise wording of the definition. If there is undue looseness in the definition, that warfare will clog up the courts and be generally undesirable.

In short—I do not disagree with anything I have heard this morning—it is clearly necessary for the Bill to contain a definition and for this House to consider the proposed definition in minute detail and with great care to ensure that the Bill works when it passes into law.

[Lord Hunt of Wirral (Con)]

My Lords, I agree with the noble Lord, Lord Trevethin and Oaksey, and my noble friend Lord Faulks. In doing so, I declare my interests as set out in the register.

I too have sympathy for my noble and learned friend the Minister. This is a good opportunity to remind ourselves why we need this legislation. Late last night, at a most inconvenient time, I received a call urging me to bring a claim. I do not know how many noble Lords have had the same but there is an industry out there. That is why working out a definition will be quite a challenge.

This problem needs urgent attention. Noble Lords may know that I have been pursuing this line of argument for 15 years. I have watched this claims industry grow and make life intolerable for so many people. In the last 10 years, the number of reported road accidents has gone down by 30%, but in the same period the number of injury claims has gone up by at least 40%. We have a problem.

I received copious briefings from vested interests who are completely opposed to any whiplash reform on the basis that it threatens access to justice for injured people, but a lot of these briefings come from companies with a commercial interest in the presentation of these claims. I think that the threat is more to their income and profits than they are prepared to admit. I want to quote Sir Rupert Jackson, albeit from seven years ago:

“There is currently far too much money swilling around in the personal injuries system and the beneficiaries are not the claimants, but usually the referrers and (when no referral fee is paid) the lawyers”.


He made that point in a different context but it is a good reminder that we are dealing with a pretty serious problem. Governments have tried before to reduce the cost of whiplash claims but the measures used, including the banning of referral fees, have not succeeded in bringing the number of claims in check.

Some noble Lords will try to argue to the contrary although they have not participated so far in the debate, but any reported decrease in the number of whiplash claims is probably because they are being described as something else. A neck injury becomes an injury to the spine or the shoulder or the back. As my noble friend Lord Faulks pointed out, this is a moving target. I have a great deal of sympathy for my noble and learned friend the Minister.

I suppose that this set of reforms is different from what has gone before. It is targeted specifically at reducing the number of claims. In view of the reduction in accident numbers, this must surely be the right target. That is why we have provisions such as a tariff set by the Lord Chancellor. This is a socio-political problem, not a medical or even a truly legal one. It needs a political policy steer, not just to be handed back to judges to exercise controls. Indeed, the Judicial College has acknowledged that this is not its role:

“We stress again that we do not attempt to prescribe what levels of damages ought to be awarded”.


In truth, judges assess very few of these low-value claims; when they do, it is usually because there is an unusual factor involved.

The industry—it is a commercial industry—that brings these claims is highly adaptive. I welcome the opportunity given to us by the noble Earl, Lord Kinnoull, and my noble and learned friend to look at the definition. The reforms in 2013 led to an early move by road accident solicitors into industrial deafness claims and clinical negligence claims, and the call that I received last night urged me to bring a claim because of some alleged sickness I had suffered on a holiday I never took. Let us not avoid the fact that we need to confront these waves of claims. There is time for more drastic action. Of course, I agree with the Delegated Powers and Regulatory Reform Committee. Noble Lords are well-versed in arguments about Henry VIII powers but in this case, with due respect to the committee, the concerns may be misplaced.

The action that the Government need to take must be radical but also fleet of foot. That is the key to understanding why the majority of the measures are subject to regulations. It is also essential that this Bill does not stray into narrow, overly medical or overly legalistic terms that are easily circumvented. Having said all that, I can hardly wait to hear what my noble and learned friend the Minister has to say.

--- Later in debate ---

[Lord Faulks]

The MedCo system has contributed very considerably to the improvement in the standards of medical reporting. For those of your Lordships who are not familiar with it, it was a system to prevent what was undoubtedly an abuse of the system by some doctors, to allow the random allocation of medical experts to deal with whiplash injuries. It is certainly an improvement. My point is that there is still a risk in certain cases of there not being reliable medical evidence.

[Lord Trevethin and Oaksey]

Before the Minister responds perhaps I may, in the probing spirit of the amendments, mention one point that has occurred to me in light of the noble Earl’s proposed deletion of the word “psychological” from various provisions in Clause 2. I completely understand what the Government are hoping to achieve by using the term “minor psychological injury” in those provisions. I imagine they have in mind the fact that in cases of the type we are considering, it did become routine, and probably still is routine, for claimants to be advised to get a supportive report from a psychiatrist that uses the term “post-traumatic stress neurosis” or something similar as a way of enhancing the eventual award. I can see that that is a problem that the use of the term “psychological injury” is directed at.

The noble Earl makes a significant point when he refers to the bruised or gashed knee of the claimant in this type of case. I am not sure how that type of case, where there is a whiplash injury but also some other injury that is outside the definition of whiplash injuries, will be satisfactorily addressed. I imagine that the tariff award for whiplash injury will be fairly low. I do not have the answer to this problem, but I am contemplating the position that will arise when a claimant has suffered a whiplash injury and is entitled to the tariff award, which may be only a few hundred pounds, but has also suffered a probably rather less serious injury to, say, his or her knee. A gashed or bruised knee might stop them from playing football, skiing or whatever it may be, and would be worth, I guess, a few hundred pounds—it might edge into £1,000. You might get an anomalous outcome that would involve claimants recovering more for very trivial injuries to the lower part of the body than they are entitled to recover, pursuant to the Bill, for the relevant whiplash injury. I do not know what the answer is, but it is a potential problem.