This link is to the excellent Roscoe Lecture delivered by the former American astronaut, Professor Dr.David Hilmers at St.George’s Hall, Liverpool, on Thursday March 15th 2012.
132AA: Before Clause 43, insert the following new Clause—
“Exception in respiratory (industrial disease or illness) cases
The changes made by sections 43, 45 and 46 of this Act do not apply in relation to proceedings which include a claim for damages for respiratory disease or illness (whether or not resulting in death) arising from industrial exposure to harmful substance.”
My Lords, in speaking to Amendment 132AA, I shall speak also to Amendments 136, 141 and 142, which relate to Clauses 43, 45 and 46. In speaking to them I return to the issue of mesothelioma and its victims, the question that I raised on 22 November at Second Reading, at some length in Committee on 30 January, and during Oral Questions on 29 February. At the outset, may I thank the Minister for his courtesy in meeting the noble Lord, Lord Avebury, and myself yesterday, and for listening so carefully to the arguments that we advanced to him?
Anyone who has ever contested a parliamentary by-election knows that it is the most special way of entering Parliament. It is something that I share with the noble Lord, Lord Avebury, and it is 50 years to the day since the noble Lord, Lord Avebury, entered the political lexicon as Orpington Man. Over the many years that have passed since then I have always found myself wanting to be on the same side of the argument as the noble Lord, Lord Avebury, and nothing gives me greater pleasure than the fact that he is one of the signatories to this amendment.
Some 18 Members of your Lordships’ House are signatories to a letter supporting this amendment. They include the noble Lords, Lord Bach, Lord Beecham, Lord Brennan, Lord Elystan-Morgan, Lord McColl, Lord McFall, Lord Monks, Lord Newton, and Lord Wigley, the right reverend Prelate the Bishop of Blackburn, my noble and learned friend Lady Butler-Sloss, and my noble friends Lady Finlay, Lord Martin, Lord Patel and Lord Walton of Detchant. I give those names to your Lordships’ House to demonstrate the breadth of support for this amendment from all sides and they include distinguished lawyers, distinguished medics and representatives of working people’s interests.
Noble Lords may also have seen a letter which appeared in the Times on 3 March signed by several Members of this House. In conclusion, it states that,
“asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice, nor can they afford to defend test cases run by rich insurers”.
In a nutshell, that is the principle we are debating today. We must decide whether it can be right that asbestos victims should be required to surrender as much as 25 per cent of their damages for pain and suffering to pay for legal costs. Let me repeat, the clauses we are now debating required terminally ill asbestos victims who succeed in a claim for compensation against negligent, guilty employers to pay up to 25 per cent of their damages for pain and suffering in legal costs associated with the conditional fee agreement system, the CFA.
Let us also be clear about what we are not debating. This is the Legal Aid, Sentencing and Punishment of Offenders Bill. Into which of those categories contained in the Title do people suffering from mesothelioma fall? As the Bill aims to restrict legal aid and to curtail what has been described as a compensation culture, it is worth nailing two myths at the outset. First, these mesothelioma cases have not been legally aided and are not legally aided now. They have not been legally aided for some 12 years. Secondly, they are not part of the compensation culture. I know that the Minister concurs with those propositions.
Mesothelioma cases receive no legal aid. They are not fraudulent cases and do not involve fakery. On that much we can be agreed. As one victim put it to me, “I can understand the need for legislation to prevent the trivial and no-win fee claims but how can the claim of a mesothelioma sufferer be ‘lumped in’ with ‘ambulance chasers’? Mesothelioma has only one outcome and that is loss of life. It is not trivial, and patients need help not hindrance”.
Currently, solicitors are paid a success fee by the losing defendant to fund very difficult but meritorious cases. This replaces the funding which was available under legal aid. One claimant will have to pay for another claimant’s chance to gain access to justice if we agree the provisions in the Bill. Important test cases which determine the right of mesothelioma sufferers to claim would never have been run under the new prescription. Those who tabled this amendment argue that asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice, nor can they afford to defend test cases run by rich insurers.
What else do we agree about? We are all agreed that this is a terrible disease. The Minister movingly described to us in Committee how a member of his own family had their life cruelly ended by this fatal disease. We are all agreed that once diagnosed the victim’s life is drastically curtailed. Many doctors say that the average lifespan from diagnosis to death is likely to be around nine months to one year. Some 30,000 people have died to date and as many as 60,000, according to official figures, could die in the future.
What have been the lines of disagreement? The Government have argued that conditional fee agreements, as currently constructed, mean that win or lose a claimant risks nothing but that has encouraged frivolous and fraudulent claims to flourish. Yet those who tabled this amendment argue—as I have said, the Government have said that they agree—that the claims of dying asbestos victims can never be frivolous or fraudulent. So who is responsible for exploiting CFAs? The Government and the insurance industry are quite clear: road traffic accident claims, which make up over 70 per cent of all personal injury claims, particularly whiplash claims, are to blame. In total, whiplash claims add up to a staggering £2 billion annually. We argue that RTA problems will not be solved by punishing asbestos victims. As one victim explained to me:
“My life has been turned upside down, and I really didn’t want to think about anything except spending my last days with my family. I worked all my life and paid all my N.I. and taxes, so this seems unfair”.
That is expressing it with commendable understatement.
Those who tabled this amendment argue that the victims suffer enough. It is iniquitous that they should lose their modest compensation to reduce solicitors’ costs. Those costs can be reduced directly and access to justice preserved, but not by scapegoating asbestos victims. Many sufferers are so defeated by their illness that they never make a claim as things stand now.
The Government additionally argue that claimants must take some of the risk and have an investment in a claim—“skin in the game”. This in my view is an ugly, awful phrase and it is telling. If you consider that mesothelioma sufferers have given their health and their lives because unknowingly they took unwarranted and fatal risks, it is obscene that they of all people should have some “skin in the game”. A contributor to a family asbestos forum said:
“The whole point of making a claim is to make a guilty party pay attention and take responsibility. As the ‘victim’, why should we ‘pay’ again? Is our life not enough?”.
This is not like a win on the lottery or a windfall, it is about restoring victims to something like the position they were in before diagnosis, and making proper provision for them and for their families. Making mesothelioma sufferers pay legal costs will not result in greater competition, thus driving costs down, or give mesothelioma sufferers “skin in the game”. Instead, it will inhibit claims, thus adversely affecting access to justice.
Another perverse outcome will be that challenges to insurers’ appeals to limit liability for mesothelioma claims will be unaffordable, as will taking a case to trial, a point raised by me and by the right reverend Prelate the Bishop of Liverpool during our recent exchange at Question Time with the Minister. The perverse effect of making claimants responsible for success fees will be to make one claimant pay for another’s chance of taking a claim—an extraordinary prospect for mesothelioma sufferers.
Let me also say a word about “after the event” insurance. It has been said that qualified one-way costs-shifting will resolve the issue of claimants paying ATE insurance. Leaving aside the punitive qualifications, that is true, but the Government failed to add that mesothelioma sufferers will face heavy disbursements in the form of court costs, medical reports and so on, which are not covered by QOCS. If ATE insurance is available for disbursements, the premiums are expected to be about two-thirds of the present premiums. These fall to the claimant. If the punitive qualifications regarding the behaviour of the parties and their financial status are unchallenged, claimants will not risk their savings and perhaps their houses to make a claim.
Let me end by returning to the Government’s best argument, that changing the law will turn claimants into a rod for the back of recalcitrant lawyers. Let us think about that. What dying man or woman is going to do this? Would you or I? It is simply fallacious to argue that making claimants pay costs will mean that they will shop around for the best deal. Dying asbestos victims have already invested enough, and given their pitiable condition, it is risible to suggest that they will shop around. Terminally ill and dying people will simply not have the energy, and they have other things on their mind than looking for a lawyer to give them a better rate.
Whatever else now divides the House on how the increased costs of litigation should be resolved, surely we can see the force of the practical and the moral case to exempt people who are dying of mesothelioma from the strictures and provisions of the Bill. Once again, I am indebted to your Lordships for the widespread support for these amendments and to the Minister for the courtesy he extended yesterday in listening to the arguments. I hope that the amendments will commend themselves to a majority in your Lordships’ House and I beg to move.
My Lords, I congratulate the noble Lord, Lord Alton, on the effectiveness and the tenacity with which he has pursued the issue of mesothelioma victims, and I am also grateful to him for his kind reference to my 50th anniversary, which falls today. I also join him in the thanks he has expressed to my friend Lord McNally for the sympathetic and careful hearing he gave us yesterday to discuss these issues.
The horrors associated with these diseases go back four decades and more, when it first became known that the ingestion of tiny amounts of asbestos could lead to painful and invariably fatal diseases. Even then, it was in the teeth of opposition from the manufacturers of asbestos products that health and safety measures were finally enacted to remove the use of this deadly product from the workplace and pave the way for the existing health and safety at work legislation.
When we discussed these amendments in Committee, the first reaction of my noble friend the Minister was to classify them as yet another in the series of amendments calling for an exception to some aspects of the Bill’s architecture. As my noble friend Lord Thomas of Gresford pointed out, Lord Justice Jackson was not looking for an architecture that involved everything but for what was right in particular categories of case, which must be the right way to proceed.
As we know, this is not an area of the Bill where there is public money to be saved, other than in cases where public authorities are defendants. What we are arguing about is whether some of the costs of this very special group of victims of mesothelioma disease in CFA cases should be borne by the claimant rather than the defendant or the insurers. Nor is this one of the areas of the Bill on which there has been lobbying by lawyers or insurance companies, as the noble Lord, Lord Alton, said.
Furthermore, it is not an area in which, as my noble friend the Minister put it, we are trying to create a structure that squeezes out an inflationary element of the process. Between 2007 and 2011, there was a 6.6 per cent reduction in employer liability cases, of which most respiratory claims are a subset, and it is expected that mesothelioma claims will peak in 2015, or perhaps a little later, because of the elimination years ago of asbestos from the working environment. During that same period, 2007 to 2011, road traffic accidents increased by 43 per cent to nearly 800,000 cases. That is where there may well be the abuse referred to by my noble friend. Unscrupulous claimants may be able to fake road traffic injuries, but not mesothelioma or asbestosis. It is impossible for the victims of these horrible diseases to launch a frivolous or fraudulent claim, and it is unconscionable that people on their deathbeds should be mulcted of thousands of pounds out of the damages that they are awarded by the courts.
As matters stand, the claimant pays nothing if he loses. He takes out “after the event” insurance which will pay the defendant’s costs as well as the ATE premium if the case is lost, and the claimant’s solicitor bears his own costs if he loses under the no-win, no-fee arrangement. If the claimant wins the case, the defendant pays the claimant’s solicitor’s base costs plus disbursements, including medical reports, court fees et cetera, plus the success fee and the ATE insurance premium; that is, all the costs. So, with ATE insurance, the claimant pays no costs, win or lose.
Under QOCS, which is not in the Bill, as we have heard, but is due to be implemented by order—we are glad to hear that it will be coterminous with the introduction of this part of the Bill—the defendant again pays the claimant’s solicitor’s base costs whether the claimant wins or loses. ATE insurance will not have to be taken out to cover the contingent liability. Whether a market will develop in this area remains to be seen, as the noble Lord, Lord Alton, said, but assuming that it does, we are advised that the premium could amount to at least two-thirds of the current ATE premium in a similar case.
My noble and learned friend Lord Wallace wrote to me and the noble Lord, Lord Wigley, on 7 February, partly explaining how QOCS would operate. Yes, it removes the need to fund an ATE premium to cover the risk of having to pay the defendant’s solicitor’s costs if the case is lost, but that is not the full story, as the noble Lord, Lord Alton, has reminded us. Given the high costs of disbursements in mesothelioma cases it would be right to extend the recovery of the ATE premium to mesothelioma claims as it is already in clinical negligence claims.
My noble and learned friend omitted to say also in the letter that the claimant is now going to forfeit not only the ATE premium, which is no longer recoverable, but the far higher amount of the success fee, for which the defendant is no longer liable. The claimant is effectively to be fined 25 per cent of the general damages he has been awarded, losing perhaps £15,000 or more from the amount that has been awarded by the court. It is certain that when this and the ATE liability is explained to mortally ill claimants, many of them will decide that it is not worth the hassle of pursuing the case.
My noble friend Lord Thomas suggests that the claimant should pay only half the success fee, but our case is that victims of mesothelioma should receive the whole of the amount they are awarded by the courts, as hitherto. My noble and learned friend Lord Wallace says that solicitors will compete on maximising the damages that claimants can keep, an expectation which is unlikely to materialise in some of the very complex cases to which we are referring. However, if our amendments are accepted, the right way to reduce the legal costs would be to regulate them further, such as by providing that a success fee is payable only in cases that come to court.
My noble friend says that he cannot believe that lawyers will be unwilling to take cases after the Bill becomes law, and of course they will, but, in the opinion of those advising us, they will take far fewer of these cases. We are also told, not as a matter of opinion but as a fact, that fewer claimants will decide to pursue their cases under this regime. As matters stand now, the victims of these painful diseases are often reluctant to bear the mental stress of dealing with solicitors and court proceedings. Almost unanimously they have said to Tony Whitston, the expert who advises us, that the prospect of losing thousands of pounds out of the award that they may receive would mean that many of them will not go ahead with their claims.
We are not talking only about another concession in the range of issues discussed in Committee, as the Minister put it, but one that engaged the support of every one of your Lordships, of all three parties and the Cross-Benches, who spoke in that debate. The Minister, who has personal experience through his family of the dreadful fate of the victims of mesothelioma, as we have heard, recognises that we are dealing with cases that are sui generis. They have at least as great a claim to be dealt with in a different way from the run-of-the-mill CFA claims as clinical negligence cases, and conceding this amendment would involve no costs to public funds.
My Lords, as another co-signatory to the letter to which the noble Lord, Lord Alton, referred, I endorse the argument so ably put forward today by the noble Lord and the noble Lord, Lord Avebury. I do not need to add anything to what they have said. The speech of the noble Lord, Lord Alton, today follows the magisterial speech that he gave in Committee. These arguments are irrefutable. To trammel the access to justice of mesothelioma sufferers would be a terrible thing to do. I am sure the Minister, as a kind and good man, will agree with that.
My Lords, I add my tribute to the noble Lord, Lord Avebury, for his 50-years’ celebration of Orpington. It was life-changing for me because I joined the Liberal Party a fortnight afterwards. Therefore, in a fortnight’s time it will be my 50th anniversary as a member of the party and, shortly after that, my 50th anniversary of failing to win a seat. That is how it goes.
The amendment seeks to retain the status quo in relation to one industrial disease—mesothelioma. Your Lordships will appreciate from what I said in Committee that these cases are terrible. I feel that completely. I told your Lordships about a lady who lives very close to me in Gresford. She came to this House and spoke, and no doubt a number of your Lordships will remember her vividly. Her husband died as a result of being exposed to asbestos in Brymbo steel works, which is perhaps three miles from where I live. But if you give mesothelioma a special, unique status, what about the people in my village who were in Gresford colliery—that has a certain resonance, as your Lordships may recall the disaster in 1934—or in Llay Main colliery, about two miles away, which was the deepest pit in the United Kingdom? I refer to those who suffer from pneumoconiosis, another industrial disease. How can I say, “I’m supporting that lady but I’m not supporting your claims to have the same treatment for pneumoconiosis”?
However, you could widen that to all sorts of industrial diseases and add in the person who has suffered catastrophic injuries in a factory or road accident, or multiple injuries that have severely disabled them. Should mesothelioma be given an exceptional status? To an extent, it already has that status because under the Compensation Act 2006, there are very special provisions. Providing that you can prove that a person has been exposed to asbestos negligently in the past, you do not have to prove that the mesothelioma that arises 30 or 40 years later has derived from that particular act. The responsible person under the 2006 Act is liable to all the damages, and the person suffering from mesothelioma can recover accordingly.
Of course, there are special provisions about tracing the insurers of employers some 30 or 40 years back. The Government have a scheme to identify insurers. I hope that they take it a step further, so that when they cannot identify insurers of employers who have long since departed they introduce something similar to the Motor Insurers’ Bureau. Your Lordships will recall that if you are injured in a car accident and either the driver cannot be traced or was driving uninsured, it is possible to bring an action against the Motor Insurers’ Bureau and recover damages as if they were the insurers of the person injured. In those cases of mesothelioma where the original employers’ insurers cannot be traced, a scheme like that should be introduced.
Furthermore, is the status quo for which this amendment argues the best model? I do not believe that it is. The model that the Government have adopted follows the Jackson proposals in part; it does not follow them entirely as it has left out some crucial caveats such as the retention of legal aid in all clinical negligence cases. The model adopted in this Bill is too crude and needs refinement. I have searched for a solution that would cover not just mesothelioma but pneumoconiosis and other industrial diseases, such as skin diseases in certain other employments, as well as the catastrophic and multiple injury cases. The model that I propose is not the status quo. As I said earlier, I have listened to so many people from all sorts and all sides, who have bombarded all of us with their briefs and submissions. The model that I argue for is this.
First, there is no rationale for paying claimants’ lawyers success fees in cases where liability is admitted, either by way of settlement before proceedings are commenced or by formal admission in the defence that is filed initially to the claim. In those circumstances, where liability is admitted at an early stage, the lawyers conducting the case for the claimant are not at risk at all. They know that they are going to win and that their fees will be paid. My Amendment 132C deals with that situation.
Secondly, if liability is an issue and is denied in the defence, at that point lawyers are at some risk and claimants’ lawyers may lose the case, but there comes a point in proceedings that is very important. Under part 26 of the rules of procedure, which deals with case management, a district judge allocates a case to a track; it is a formal stage in the proceedings. There is a small claims track for personal injuries of less than £5,000 and other cases less than £1,000, and some housing cases. Then there is a fast track, which is for claims up to £25,000—soon to be put up to a limit of £50,000, with no more than a day’s hearing—and a multi-track. The multi-track cases, which include judicial review and all serious personal injury cases, involve mesothelioma, industrial diseases and multiple and catastrophic injuries, fatal accidents and environmental and civil liberties cases.
Thirdly, for small claims and fast-track cases, the Government’s proposal is that the claimant should pay the success fee subject to a cap set at 25 per cent of the damages to date of trial, and he should be responsible. Of those cases—the small, whiplash cases that have bedevilled us, the RTA cases—70 per cent will come under that track. With damages at the top end of the scale of £50,000 in fast-track cases, the success fee could not exceed £12,500. That is all right; it means that the claimant’s damages are less, but he would not have been able to bring the case if he had not had a conditional fee agreement. The argument that the noble and learned Lord, Lord Mackay, put way back in 1990 was whether litigation should be completely risk free.
In multi-track cases, where there is so much more at stake, I consider that the success fee should be split 50:50 between the successful claimant and the losing defendant. It should be stressed that the success fee is a percentage uplift of the standard fees; the cap beyond which the uplift cannot go is a percentage of the damages that are awarded. The Government’s model is that the success fee uplift should be capped at 25 per cent of the general damages and losses to the date of trial. In a large case, that award of damages to the date of trial can be a small fraction of the total damages, future care and loss being by far the greater proportion. Yet we have to recognise reality. There is a need to ensure that such potentially difficult and risky cases remain commercially viable and attractive to experienced litigation solicitors. Some solicitors on the high street will take a case on a one-off basis. Is that the best way? Do we not want to have some speciality and experience? Commercially viable litigation will keep the solicitors who currently do those cases taking those cases on.
My argument is, further, that the cap should be placed on the whole award of damages, and not damages to the date of trial where it is multi-tracked—with a serious award of damages—as the noble and learned Lord, Lord Mackay, originally proposed in his scheme. From the claimant’s point of view, his share of the success fee cannot extend beyond 12.5 per cent of the damages, and that would be assisted by the proposed 10 per cent increase in the level of damages that we discussed in the course of the last amendment. To try to illustrate this, in a catastrophic case where the damages award might be £10 million, taking into account future loss, the claimant’s solicitors and barristers will get their standard fees but they will also get a success fee. Such a fee, which is a percentage uplift of the standard fees, is never going to reach £2.5 million. It is going to be a lesser sum.
In a lesser case where the damages are £600,000, to illustrate a different proposition, a success fee might reach £150,000 but it could not go any higher. Under my proposed model, that would lead to the claimant losing £75,000 of their £600,000 award and the defendants paying £75,000 themselves. What are the consequences of this? It is complicated and we have heard so much about it. It would mean that the claimant has an interest in the amount of the success fee and that lawyers would compete for his business. It is not too much in cloud-cuckoo-land to suppose that a solicitor would advertise, “My success fee will be nil”, or, “My success fee will be 5 per cent”, in order to attract business.
As for the “after the event” insurance premiums, we have already agreed that one-way costs-shifting will be introduced where there are conditional fee agreements to remove the burden of heavy defendants’ costs. One-way costs-shifting has operated in practice in legal aid cases since the inception of legal aid. I have tabled amendments which follow the amendments that we discussed last time. If one-way costs-shifting is introduced, the exorbitant “after the event” premiums to cover the risk of paying heavy defendants’ costs are removed at a stroke. You do not have to insure against the defendant’s costs because one-way costs-shifting means that the defendant will pay his own, even if he wins, as has happened in legal aid cases. It may be necessary to obtain “after the event” cover for disbursements which might cost in a typical case £3,000 to £5,000.
I must be under a misapprehension. I thought that this group was about the amendments that the noble Lord, Lord Alton, had so succinctly moved and about my own amendments to which I also hope to speak, perhaps even more succinctly in due course. I am listening carefully to the noble Lord, as I always do, but it seems that his amendments are part of the group that begins with his Amendment 132B. I am surprised that the noble Lord has not waited to speak to his group as it appears on the Marshalled List. Perhaps he can explain to the House why he is doing this.
I am very happy to do that. I will speak to it further in due course. Frankly, I am anxious not to make the 31-minute speech that I made when we last discussed this particular issue and to relieve your Lordships of that burden. I am splitting what I intend to say, which I think is necessary to cover the whole field, so that it becomes a little more understandable. I take the noble Lord’s rebuke in good part, but let me repeat that asking for the status quo in mesothelioma cases only is not the way to go forward.
My Lords, I would draw the noble Lord’s attention to the actual words in the amendment and indeed in the amendment of the noble Lord, Lord Bach, which is in this group. We have corresponded about this and he has been good enough to share with me prior to the debate some of the points that he has made eloquently this afternoon. I am grateful for that. However, this amendment goes slightly wider than he is suggesting in his remarks today and would cover, for instance, pneumoconiosis as well.
My Lords, I support the amendments tabled by my noble friend Lord Alton. I do so as a doctor. I was brought up in a mining village in Durham County where as a youth I saw some of the ravages of industrial injury and the effects of pneumoconiosis on those who worked in the mines. Later, when I moved to industrial Tyneside, I had considerable acquaintance with industrial injuries of all kinds and industrial diseases caused by a variety of different agents. At an earlier stage of this Bill, I commented that I was asked not infrequently to make reports on people who had suffered neurological damage as a result of these agents. The noble Lord, Lord Beecham, responded by saying that when instructing me to give such reports he had been grateful for their nature and extent and also for the modest fees. Had I known that he took that view the fees might have not been quite so modest.
There is no doubt, as the noble Lord, Lord Thomas, has said, that industrial injuries of all kinds are prevalent in our society. Is there anything special about mesothelioma? There is indeed. It is a disease caused by exposure to asbestos. The cause is known. The clinical course is known. In this condition, the result of particles lodging in the lungs means that the pleura or membrane which covers the lungs becomes progressively thickened, causing compression of the lungs and respiratory failure. Unlike many other diseases, such as pneumoconiosis, this disease is inevitably fatal. It is a very special condition. It deserves special legal attention and for that reason I strongly support these amendments which I believe should be accepted by your Lordships’ House.
My Lords, I apologise for not being present at the beginning of this debate. My name is on the letter and I want to underline my support for it. As a judge, I was involved with a number of these extremely sad cases, particularly at the Court of Appeal. The letter has been very helpful in setting out what is needed. I apologise to the noble Lords, Lord Alton and Lord Avebury, for not having heard most of what they said, but I have a shrewd idea that it was said extremely well.
My Lords, I support Amendment 132AA and wish to speak to the group which is associated with it, standing in the names of the noble Lords, Lord Alton and Lord Bach. I do so enthusiastically as I indicated in Committee. Whereas the noble Lord, Lord Thomas, may well have arguments in certain cases in relation to the legal processes that he outlined, I come to this from the point of view that compensation should be available in full to people, reflecting their suffering and the condition they have had, and that any legal fees should be other than the sum allocated as a response to that suffering. If this group of amendments is not accepted, the House will no doubt hear the noble Lord’s proposals in a later group of amendments. The scope not only of Amendment 132AA but also Amendment 132AB, which goes wider and covers a number of other equally distressing and deserving conditions, means that they can be supported when it comes to a vote if it does indeed come to a vote.
These amendments would have the effect of exempting cases involving claims for damages for respiratory illnesses following exposure to harmful substances from the range of changes proposed in Clauses 43, 45 and 46 of the Bill. The case for doing so was covered extensively in Committee but, unfortunately, the Minister has not so far moved towards accepting the changes that we hoped he might accept at that stage. A couple of weeks ago, at a St David’s Day dinner, I found myself sitting opposite a widow from my home area of Caernarfon. She had lost her husband to asbestosis six years ago. She described what he and they, as a family, had suffered. She received a modest sum of compensation. However, she told me that she had been following our debates in Committee and doubted that she would have got that compensation under the changes that are coming through. My goodness, if that is the effect that they will have on people who have suffered in that way, we have to make sure that the Bill is watertight and looks after people who have suffered as a result of the work that they have undertaken.
If Clause 43 is agreed unchecked, success fees under a conditional fee arrangement will no longer be recoverable from the losing party in all proceedings. Instead, in cases where claims are made against an organisation as a result of illness due to negligence, the fee will be recovered from damages awarded to the injured person, sometimes substantially eroding those damages. Likewise, if Clause 45 is agreed as it now stands, “after the event” insurance premiums will no longer be recoverable from the losing defendant and will also be taken out of the damages awarded to the injured party. Similar changes are proposed in Clause 46, which prevents organisations recovering their insurance premiums from a losing party. Unsuccessful cases involving more than one claimant can be highly expensive if there are multiple defendants whose costs need to be covered in the event of the case being lost. Without recoverable insurance premiums, these cases simply will not, in practice, be able to proceed.
Many organisations, including the Association of Personal Injury Lawyers, have been at pains to make it clear that damages are awarded for the pain and suffering caused by prolonged and debilitating illnesses. As I said earlier, damages were never intended to pay towards legal costs. Making an insured person or their family suffer an erosion of the financial compensation to which they are entitled on top of the physical distress they have endured is neither just nor dignified. It is wrong that the Government are intent on ploughing ahead with these changes without making exceptions where they are due.
In Committee, the Minister spoke of the Government’s overarching aim as being,
“to create an architecture which squeezes inflationary costs out of the civil justice system”.—[Official Report, 30/1/12; col. 1433.]
Those are grand words indeed but they cover a multitude of sins. As the noble Lord, Lord Alton, remarked, the only people who will be squeezed as a result of these changes are those who are already suffering from fatal diseases and their families. That does not sound like justice to me.
In Committee, the Minister also assured me that a number of possible routes of redress would be made available for individuals who had contracted diseases such as mesothelioma and asbestosis through schemes operated by the Department for Work and Pensions. We have heard reference to this but, as yet, I have seen no further detail on how these schemes may work. In the mean time, we should proceed on the basis that they are not there yet. However, I would welcome any clarification that the Minister might give and will listen carefully to what he has to say.
I support not only the group of amendments spoken to by the noble Lord, Lord Alton, but support very strongly Amendment 132AB in the name of the noble Lord, Lord Bach. It is relevant to a group of industrial diseases such as pneumoconiosis, silicosis and associated lung diseases, which are certainly of considerable importance to me and the community from which I come.
If these clauses are agreed unchecked, individuals who have suffered harm and distress will be dealt a further blow and access to justice will be severely undermined. It is perhaps futile to press the Government to agree to changes that they have already so utterly dismissed out of hand. However, I urge noble colleagues to support these amendments and to argue the case that individuals already suffering due to negligence should not face further hardship.
My Lords, may I briefly split up the Cross-Benchers, albeit in support of everything that they and most others have said? I have a couple of prefatory remarks. I cannot quite share the enthusiasm of the Liberal Democrat and former Liberal Democrat Benches for the anniversary of my noble friend Lord Avebury, although not because I do not have the highest regard for him. However, I was in the Conservative research department at the time and it was a major culture shock, which did not tempt me to join the Liberal Party. It could yet happen of course, but not today.
The Minister may be glad to hear my other prefatory remark. This will probably be my last foray on the Bill because, in general, I regard Part 2 as being above my pay grade. I have been reinforced in that view by the speech of the noble Lord, Lord Thomas of Gresford, which left me feeling—I hope he will not find this too rude—as though I had been enveloped in fog.
I spoke on this matter at an earlier stage and I do not intend to repeat myself. I simply endorse some points that have been made. In an earlier incarnation, when I was Minister for Disabled People, I was also the Minister for the Industrial Injuries Advisory Committee, so I know a bit about industrial diseases, including respiratory diseases such as this one. While they all have their problems and the scheme has its offerings, this disease is pretty unique for reasons that the noble Lord, Lord Alton, has outlined so clearly with his medical knowledge. This was reinforced by what the noble and learned Baroness, Lady Butler-Sloss, said about her experience of seeing and being involved in such cases. We cannot dismiss that.
I said earlier that we need to recognise that this disease is not only terrible but moves very fast. Someone gave the figure of nine months. To repeat something that I said earlier, we also need to acknowledge that this is one of those cancers—it is effectively a cancer—that is still growing. It is not diminishing. There is a long time fuse on exposure to asbestos. We have known about it for a long time and action has been taken; when asbestos is found, there is great expenditure on getting rid of it. However, there are still more cases to come than there have been because of that long fuse. One way or another, it is a pretty special case. I just do not like the idea that it can be dealt with only under CFAs, with the consequences that were so eloquently outlined by the noble Lord, Lord Alton.
This is not part of the mischief of exploiting whiplash injuries. It is very much sui generis and needs to be treated as such. The notion that someone who has just been told that they have nine months or less to live will engage in a lot of frivolous legal activity is far fetched in the extreme.
The noble Lord, Lord Thomas of Gresford, referred to all sorts of other ways of getting compensation, including schemes that the Government have and the possibility of a rival to the Motor Insurers’ Bureau. We are talking about people with nine months to live. It will probably take nine months for them to find out where to start under some of those arrangements, let alone to get some compensation. In any event, what we are offered here are not the alternatives that the noble Lord, Lord Thomas, outlined. They are not here and would have to be worked up. What we have is what is in the Bill. We need to look at that with care and, once more, we need to ask the House of Commons to think again.
My Lords, I agree with every speaker that this is a dreadful disease for which the sufferers deserve compensation. Just as importantly, they deserve compensation speedily. I am glad to say, as a practising barrister with some experience of cases of this sort, that the mechanisms and systems by which compensation can be achieved have greatly improved so that this can be done.
I agree that all these claims are thoroughly deserving. There can be no dispute about diagnosis. They are not the sort of cases that are covered by the much described “compensation culture”. The real question, though, is simply this: will these cases still proceed if the Bill becomes law? There is no doubt that they will become less profitable for lawyers, but will they become so much less profitable that these very deserving cases will be denied justice? That is the real question, I suggest.
The reason why lawyers do not take cases on CFAs—this is perhaps particularly so in clinical negligence cases—is because there are real difficulties and they might lose the case. In a series of cases on mesothelioma and other cases deriving from exposure to asbestos, the courts have done a great deal to help in terms of the law on causation. Not just through the 2006 Act but in a series of cases in the Court of Appeal and in the House of Lords, they have circumvented the difficulties in proving liability, particularly the so-called “single fibre” theory, where it was difficult to establish which of a number of employers was responsible. That difficulty is largely overcome. As I say, the noble Lord, Lord Walton, has confirmed that diagnosis is rarely controversial, so we do not have the situation of doctors disagreeing. So what is the real difficulty about these cases? There is a great deal of experience out there, both on the claimants’ and the defendants’ side, in taking these cases forward. One of the problems is not being able to identify the appropriate defendant or the policy. We have heard from the noble Lord, Lord Thomas, that steps have been taken through the ABI and other bodies to keep proper records of these matters.
However, where I have real difficulties, in agreement with all noble Lords who have spoken, is on the question of damages. A recent decision of the High Court has dealt with the quantum of damages in these cases. They are very modest. That is not because judges are not profoundly sympathetic to the claims, but simply because they are claims for pain and suffering and loss of amenity and do not involve long-term care claims or loss of earnings claims. Thus they are modest. However, I find it unattractive in the extreme that there should be 25 per cent taken off these damages, albeit that will be increased by 10 per cent. I very much hope that the Minister’s words are justified and that solicitors will not see fit—how could they?—to take a percentage of damages in these circumstances. I share with the noble Lord, Lord Alton, a revulsion of the expression “skin in the game” in the context of these desperately sad cases.
I suggest that Part 2 of the Bill is a very real and positive attempt by the Government to cope with what I have encountered as a disfiguring feature of the litigation world when inflated costs are involved and when cases become too much about lawyers’ fees and interests and insurers’ interests rather than the underlying dispute. This is a desperately sad series of cases. I share all noble Lords’ concern that damages should be recovered as quickly as possible. However, I venture caution lest, in the wake of these cases, we lose the structure and the architecture that Lord Justice Jackson put forward.
I support the comments made by my noble friend Lord Walton of Detchant. As a doctor, I look after these patients and have found repeatedly that they do not even want to seek compensation but are persuaded to do so. They do not seek it for themselves as they know that their lives are over, but because they want to leave something behind for their bereaved families who will have to live on after their death, facing a loss in pension.
As has been said, a common feature of mesothelioma and the other respiratory diseases mentioned in other amendments in this group is that diagnosis is clear. Histological diagnosis under the microscope shows the fibres and fragments of substance to which these people have been exposed, such as asbestos fibres and small amounts of substances such as beryllium and silica. Another feature of these respiratory diseases is that they form a discrete group. Protection of the respiratory tract has been around for a long time but workers have not always been adequately protected. Sadly, there was a time lag in that regard. Indeed, as regards these diseases, blue asbestos was thought to be the culprit. It took some time before all forms of asbestos were identified as being fundamental pathogens. We must put the interests of the people suffering from these diseases before any other interests. For those reasons, I strongly support these amendments.
My Lords, obviously, the people who fall into this category should have our sincere sympathy. I certainly feel strongly that they deserve that. However, I want to mention one or two matters. First, when this system of contingency fees—or whatever name you want to call it—was introduced, there was no special rule for such cases. I do not know to what extent the noble Lord, Lord Alton, or the noble Lord, Lord Avebury, have looked into the situation as it was when the system as I introduced it was working.
Secondly, it will not have escaped your Lordships that the next amendment of the noble Lord, Lord Alton, concerns industrial disease cases generally. The amendment we are discussing deals with respiratory cases; the next amendment deals with industrial disease cases. I particularly draw to your Lordships’ attention the question of justice as between different claimants. I entirely accept what has been said by those highly medically qualified noble Lords who have spoken about the disease we are discussing. However, other troubles that are the subject of personal injury actions involve lifelong deprivation of practically all one’s faculties. That kind of long-lasting trouble comprises another type of personal injury action. If your Lordships wish to support this amendment, they have to think how they would justify treating the cases we are discussing differently from other terrible cases which those of us who have experience of personal injury actions know exist.
Long ago I was professionally involved in cases that concerned the National Coal Board. Pneumoconiosis cases were brought but other cases were brought involving people who had been injured while working underground. People who suffered those injuries were in terrible distress and eventually died. However, before they died they were in a very distressing situation. Therefore, one has to be careful about how one distinguishes between the different cases. Justice requires that similar cases should be similarly dealt with.
If I understood him correctly, the noble Lord, Lord Alton, said that the cases in the group he was asking for should not be required to subsidise other cases. My understanding of this system is that you do not subsidise other cases: the success fee is dependent on the chances of success in your case. It is a factor which is dependent on a probability of success that works into the success fee. It is not dependent on other cases; it is dependent on the precise potential for winning that exists in the case that you have in hand. Therefore, I do not accept that this system in any way subsidises other cases across the board except in the sense that the probability of success in a particular case is what determines the success fee.
If the noble Lord, Lord Alton, wishes to press this amendment, I assume that he will not have the benefit of the 10 per cent uplift for his amendments in this group, which is on the way as a result of the undertakings given by the Government. There is also the question of the one-way shift. That would probably apply if it were done generally in respect of these cases, but the other may not.
This is a very difficult area. The sympathy of the whole House is with these people, and that is very much the case with me and my noble friend in particular, given his experience of this issue. However, justice requires us to do justice as between different claimants. Other claimants also have very difficult conditions. How do we say to X, “Your claim and the conditions to which you have been exposed are so bad, as distinct from the others, that we can justify treating you differently”?
I should perhaps have said that I of course associate myself with the congratulations to the noble Lord, Lord Avebury. I did not suffer from the difficulties that my noble friend Lord Newton of Braintree had.
Perhaps I may put two points to the noble and learned Lord before he sits down. The system as it operated under his stewardship did not take funds away from the claimant when they were successful in litigation. That is surely the difference from the matter before your Lordships’ House. When the noble and learned Lord oversaw the system, it was fair and just, and did not raid any of the funds that the claimant was able to receive in compensation. We are merely seeking to maintain the status quo in the way that it operated during his time.
As to exceptional circumstances, surely, if someone is terminally ill, they are exceptional or sui generis, as described by the noble Lord, Lord Newton, and my noble friend Lady Finlay in their interventions. If people in this group are terminally ill, that is surely what makes their cases exceptional.
My Lords, it is possible to describe other types of illness and the basis for claims in very much the same language as that used by the noble Lord, Lord Walton of Detchant, and the noble Baroness. So far as the first point is concerned, in the system as I introduced it the success fee would be payable by the claimant out of his or her damages.
My Lords, we have had a powerful and emotive debate and I want to be very brief because the House wants to hear from the Minister, who is obviously sympathetic, as was demonstrated by what has been said about his visits made and meetings with noble Lords on this issue. I am proud to support the amendment in the name of the noble Lord, Lord Alton of Liverpool, also supported by the noble Lord, Lord Avebury. I am delighted that the noble Lord, Lord Alton, supports my amendments in this group that deal with other industrial diseases—Amendments 132AB, 132D and 141ZB. In response to the noble Lord, Lord Thomas of Gresford, I say that if he thinks that other diseases are also important to deal with, he should look carefully at the amendments I may move in due course.
I shall cut down appreciably on what I wanted to say. We know that asbestosis is not the only problem, but speeches have been made in this debate by experts who suggest that it is a problem out on its own that should be considered separately, as it will be this evening. It is because asbestosis is not the only problem that I tabled my amendment that deals with other serious industrial diseases. I do not need to go through the types of diseases that I am talking about, but they are the by-products of hard work. All these are inflicted on hard-working people who have spent their lives contributing to our society and economy, often in industries that no longer exist, and in heavy industry, manufacturing and public services. As has been said by many noble Lords, many of these diseases do not manifest themselves for years and are the legacy of coal mining, our proud tradition of manufacturing, steel making and other professions.
I have here a letter received from the wife of a man who suffered from mesothelioma, to which the noble and learned Lord, Lord Davidson, referred in his Second Reading speech many months ago. The man was between 16 and 24 years old when he was exposed to asbestos as an apprentice lift engineer, erecting lifts on building sites. He stayed in that industry throughout his working life. He loved his job and most of his customers became his friends. His wife said:
“This disease has affected our lives in every possible way and stress levels have been extremely high for both of us”.
She went on to say many things that will move the House, and added that the stress and worry that go with what she described were unbelievable. Yet, she claimed, the Government were trying to make victims face additional stress and worry by making them decide whether they can afford to take out a civil action. She added:
“Compensation would be eroded by having to pay legal costs plus insurance to cover defendants’ legal costs, plus the worry of having to pay some fees upfront. This is an insult and will discourage people from making a claim to which they are entitled. This Bill should be designed to stop the ‘ambulance chaser’ brigade who contact prospective clients and advertise constantly, not workplace victims whose lives were put at risk by exposure to asbestos”.
Of course we are right to control the cost of litigation, but road traffic accidents and slip-and-trip accidents are quite separate and distinct. It is incongruous to somehow link them with what we have been talking about in this debate. It is unnecessary and rather cruel. It is with pleasure that I invite the Minister to accept the amendments in the name of the noble Lord, Lord Alton, and myself.
My Lords, I should first say to the noble Lord, Lord Newton, that if he is thinking of joining the Liberal Democrats he would fit in very well.
This is not a debate about those who care about mesothelioma sufferers and those who do not. We all care, and many of us have been trying to address the problems associated with that dreadful disease. Indeed, the Department for Work and Pensions is working closely with all stakeholders to see what can be done to compensate people with mesothelioma and similar conditions who are unable to claim civil damages because their employer no longer exists and their insurer cannot be found.
It is true, as has been mentioned, that Governments of all parties have taken action to aid sufferers of industrial injuries and illnesses, and the legacies of our industrial past. However, it is also fair to put on record that legal aid was removed from this area of litigation by the previous Administration in 2000.
Before turning to the detail of these amendments, I wanted to say a few words about the importance of the changes we are introducing in Part 2. As we heard in the earlier debate, the changes we are proposing to no-win no-fee agreements were recommended by Lord Justice Jackson after his year-long review, and supported by the senior judiciary. The Lord Chief Justice said that the report addressed civil costs as a comprehensive, coherent whole. Our proposals were welcomed by the previous Lord Chancellor, Mr Straw, and by the opposition Front Bench in the other place when the current Lord Chancellor announced them on 29 March last year. The shadow Justice Minister said at Committee stage:
“the intention of part 2 is perfectly sound, and it is one with which we have a great deal of sympathy”.—[Official Report, 13/9/11; Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, col. 501.]
So there is broad agreement on the principles of our reform.
Part 2 addresses the way that the present system is—as I think that the noble Lord, Lord Faulks, described it—distorted. The agreement is perhaps not surprising given the high costs that have arisen under the current regime and the unfairness that has resulted between claimants and defendants.
I remind the House of that, because I am concerned that in making the position fairer between claimants and defendants, as we seek to do, we should not make the position less fair between different classes of claimants, as some of the amendments would, as the noble and learned Lord, Lord Mackay, just reminded us. The current regime of recoverable success fees and insurance premiums allows for risk-free litigation from claimants and substantial additional costs for defendants.
Allowing exceptions, so that the regime continues in relation to certain cases only, would introduce unfairness for those claimants in an otherwise similar position where the exception does not apply. Allowing an exception for defamation claims, for victims of industrial diseases or for claims of corporate harm by multinational companies, for example, would introduce an advantage to claimants in those specific categories which would be unfair to those in otherwise similar positions whose claims fell into a slightly different category. Clauses 43 and 45 are a fundamental element of the Government’s reform in ensuring proportionality and fairness across the board. That is why we resist any substantive amendments to them.
I will take Amendments 132AA, 132AB, 132D, 136, 141, 141ZB and 142 together, as they are intended to retain recoverable elements in claims dealing with respiratory diseases or industrial diseases caused by an employer’s breach of duty to an employee. Amendments 132AA, 136, 141 and 142 would retain recoverability of success fees after the event, or ATE insurance payments and membership organisations’ self-insurance costs for respiratory disease cases. Amendments 132AB, 132D and 141ZB would do the same for employers’ liability claims relating to industrial diseases.
Although I will address all industrial disease claims in my response, I am aware of the keen interest of the noble Lords, Lord Alton and Lord Avebury, in mesothelioma in particular. They have been tireless and dedicated campaigners on behalf of sufferers of that fatal and tragic disease, and I commend them on that. Although we can agree on the tragic nature of the disease and its impact, I cannot agree that those cases should be exempted from our reforms. Noble Lords have argued that industrial diseases, including mesothelioma and other less serious conditions, are not part of the compensation culture. The Government accept that—I did so in Committee. There is no suggestion that those claims are brought improperly. Our reforms are intended to address high cost throughout civil litigation. This is not just about driving out fraudulent or exaggerated claims but about ensuring that legal costs are proportionate to the sums at issue. For that, wholesale reform is needed. To be effective, it must apply across the board.
Specifically on mesothelioma, I said in reply to an Oral Question from the noble Lord, Lord Alton, on 29 February that I am not aware of anything associated with those cases which makes them particularly expensive to bring. I have not heard anything since which persuades me that there is anything particular about the nature of those cases—the cases, not the disease—which makes them any harder to bring in legal terms than any other case. Indeed, it is quite the reverse. As my noble friend Lord Thomas of Gresford and the noble Lord, Lord Faulks, pointed out, significant steps have been taken in recent years to lower the barriers to bringing compensation claims for those diseases. Senior Master Whitaker, who oversees these cases in the High Court, has helped to introduce a fast-track procedure for mesothelioma cases. That has been incorporated into a practice direction ensuring that those claims are dealt with as quickly as possible—again a point brought up by my noble and learned friend Lord Mackay.
Various legal changes over the past few years, including primary legislation such as the Compensation Act 2006, and judgments of the Supreme Court, have removed some of the hurdles for sufferers of respiratory diseases to bringing claims. The Department for Work and Pensions has undertaken various initiatives to make it easier for claimants to trace their employers’ insurers. I understand that it can be difficult and expensive for those with what the noble Lord, Lord Wigley, I think, referred to as long-tail diseases, such as mesothelioma, to track down the liable insurer. In April 2011, the insurance industry set up the Employers’ Liability Trading Office, or ELTO. Supported by the Government, the ELTO provides an online resource through which claimants and their representatives can search for the relevant policy, reducing time and costs for those involved in such searches.
The Department for Work and Pensions continues to work with stakeholders to see what can be done to compensate people with mesothelioma and similar conditions who are unable to claim civil damages because their employer no longer exists and their employer’s liability insurer cannot be found. A response to the government consultation, Accessing Compensation—Supporting People Who Need to Trace Employers’ Liability Insurance, which reflects further on possible solutions, will be published in due course. I recently met the insurance industry to discuss ongoing work. I can tell the House that, as a result of this issue being raised in discussion on the Bill, I will be taking the matter up with my noble friend Lord Freud at the Department for Work and Pensions to discuss what progress is being made and how it can be advanced. As noble Lords will be aware, my noble friend told the Grand Committee yesterday that we will be increasing the mesothelioma lump-sum payments by 3.1 per cent from 1 April this year. I welcome my noble friend’s statement and his commitment to working with interested parties to offer further help to sufferers who have difficulty in tracing their insurer.
Noble Lords have spoken of the prohibitive costs of bringing industrial disease claims against well resourced defendants. There is concern that claims will not be brought if claimants risk being liable for high defendant costs should they lose. In response, I remind noble Lords that in personal injury claims, including industrial disease, qualified one-way costs-shifting will apply—that is, a losing claimant will usually not be at risk of paying a defendant’s costs. We discussed QOCS earlier in the debate.
We turn, then, to the claimant’s own disbursements, which noble Lords have argued will be unaffordable should “after the event” insurance premiums no longer be recoverable. On respiratory disease claims, my understanding is that only one medical report is required by rules of court in order to issue a claim. This report will cover the diagnosis, basic causation, prognosis and what the life expectancy might have been without mesothelioma. In exceptional circumstances, a forensic engineering report may also be necessary to show causation. However, the majority of mesothelioma sufferers will not need reams of expert evidence to bring their claim and consequently are unlikely to face high up-front costs for expert reports.
Claims for industrial diseases are not unique in requiring expert evidence to show the nature and extent of the illness. The same is true of many personal injury cases, where there may be disputes, if not of the causation or liability, of the extent of the damage caused. It is not true to say that such reports will be unobtainable without a recoverable ATE premium, particularly as a claim may be brought on the basis of one report. A claimant may pay for reports through their own means; solicitors may decide to bear up-front costs themselves; or a claimant may take out ATE insurance and pay the premium themselves. In any of those instances, either the claimant or the solicitor will have a direct interest in the costs that are being incurred—which is one of the main principles underlying our reforms.
It should also be noted that general damages for non-pecuniary loss, such as pain, suffering and loss of amenity, will be increased by 10 per cent—a point emphasised by the noble and learned Lord, Lord Mackay, but not mentioned in other speeches when there was talk about a raid on damages. That will help claimants to pay any success fee that may be due once their claim has ended. I also point out that the proposed cap on success fees of 25 per cent of damages awarded is not compulsory. It is a negotiated amount and excludes those for future care and loss. We expect solicitors to compete for business by offering lower fees. We also expect those who specialise in this area to offer fair and realistic terms for their clients that take into account not only the risk of the case, but also the needs of the individual claimants and their families at what, of course, will be a particularly traumatic time in their lives.
I have previously explained the concerns of the Government around the current regime and the significant disadvantages it has for defendants, with no incentive for claimants to control costs. I must underline that those reforms in Part 2 are not about saving money for the public purse. Making savings is a benefit, of course, but that is not what Lord Justice Jackson was considering when he wrote his comprehensive report. The Government are determined to see more proportionate costs in civil litigation, with greater fairness in the risk borne by parties. Without our reforms, high and disproportionate costs in civil litigation will continue. Access to justice would not become more meaningful for all parties. If these amendments were accepted, claimants in these particular cases would have an advantage over others who may be suffering from equally debilitating conditions. This cannot be justified, but I am grateful to all noble Lords. I am grateful to my noble friend Lord Thomas for what was obviously deep thinking about alternatives and I will study his remarks and the issues he raised carefully. As I say, I will be taking these matters further with my noble friend Lord Freud and other ministerial colleagues with all due urgency, and, as I have indicated, I hope that we can make some progress.
As I say, I do not believe that this is a debate between those who want to help here and those who do not. It is about keeping the Jackson reforms in Part 2 in their place without producing a whole range of anomalies, and at the same time the Government taking forward with a sense of real urgency ways of giving practical help to those who suffer from this dreadful disease. I hope that the noble Lord, Lord Alton, in the light of that reply, will withdraw his amendment.
My Lords, I am grateful to the Minister for the way in which he has addressed this issue this evening and, indeed, I reiterate my thanks to him for meeting the noble Lord, Lord Avebury, and me yesterday to discuss what more could be done to help this unique group of people—a point I shall return to in a moment. I am conscious that your Lordships want to come to a decision on this matter, so I promise that I will be brief.
There was no debate about this issue when it was before the House of Commons; there was no Division in the House of Commons. Your Lordships will be doing your job in scrutinising legislation by supporting these amendments this evening, because Members of the House of Commons will now, I think, welcome the opportunity to return to this question. I am told by my noble friend Lady Finlay of Llandaff, whom I spoke to earlier about this, that very small numbers of people other than mesothelioma victims would actually be caught by this amendment. However, if it should be that this is slightly extended from this exceptional group of people who are terminally ill and dying to one or two other groups, let us make this more generic and extend it to people who are terminally ill. That is the difference; that is why I disagree with the noble Lord, Lord McNally, when he says that this would be giving this category of people an advantage over others. This is a group of people who are entitled to an advantage. If you are diagnosed as terminally ill—if you are told that you only have nine months to a year to live—then you are not in the same category as others, and we have to do all we can to help.
The Minister said that his noble friend—in fact, it was the noble Lord, Lord De Mauley, yesterday, speaking on behalf of the noble Lord, Lord Freud, who was unwell—gave an assurance that there would be an increase in lump sum payments. That is extremely welcome but it has no bearing whatsoever, of course, on the litigation that we are taking about this evening, which people might embark upon to seek compensation. It is also welcome that there should be an uplift and I hope that no one is suggesting that that should not also be available to people who are terminally ill and dying as a result of mesothelioma.
The Jackson proposals have been referred to a great deal during the debates in your Lordships’ House, but we all know that they are a curate’s egg—they are there in part. They have been chosen where it suits those who are proposing these new arrangements and, where it does not, they are set to one side: this is a very good example of where that has happened.
Let me reiterate: this is not about public money. Legal aid, as the Minister himself has said, has not been available for the past 12 years, so this is not about public money. Nor is it about the compensation culture; we are all agreed about that. It is about an exceptional group of people, but it is also more than that. The noble and learned Lord, Lord Mackay of Clashfern, said that it is about justice. I simply ask your Lordships how it can ever be just to raid the compensation that someone has been awarded because they have proven their case in court—to take up to 25 per cent of what they have been awarded to help them through the last days of their life. How can it ever be a matter of justice to do that? It is for that reason that I would like to seek the opinion of your Lordships’ House.
Division on Amendment 132AA
Contents 189; Not-Contents 158.
Amendment 132AA agreed.
Division No. 3
- Aberdare, L.
- Adams of Craigielea, B.
- Adebowale, L.
- Ahmed, L.
- Alton of Liverpool, L. [Teller]
- Anderson of Swansea, L.
- Andrews, B.
- Armstrong of Hill Top, B.
- Avebury, L.
- Bach, L.
- Bakewell, B.
- Bassam of Brighton, L.
- Beecham, L.
- Berkeley, L.
- Best, L.
- Bilston, L.
- Blackstone, B.
- Blood, B.
- Boothroyd, B.
- Borrie, L.
- Bradley, L.
- Brennan, L.
- Brooke of Alverthorpe, L.
- Brookman, L.
- Brooks of Tremorfa, L.
- Browne of Belmont, L.
- Browne of Ladyton, L.
- Butler-Sloss, B.
- Cameron of Dillington, L.
- Campbell-Savours, L.
- Carter of Coles, L.
- Clancarty, E.
- Clarke of Hampstead, L.
- Clinton-Davis, L.
- Collins of Highbury, L.
- Colville of Culross, V.
- Corston, B.
- Coussins, B.
- Cox, B.
- Davidson of Glen Clova, L.
- Davies of Coity, L.
- Davies of Oldham, L.
- Donaghy, B.
- Donoughue, L.
- Doocey, B.
- Dubs, L.
- Elder, L.
- Elystan-Morgan, L.
- Evans of Parkside, L.
- Evans of Watford, L.
- Exeter, Bp.
- Falconer of Thoroton, L.
- Farrington of Ribbleton, B.
- Faulkner of Worcester, L.
- Fellowes, L.
- Finlay of Llandaff, B.
- Ford, B.
- Foster of Bishop Auckland, L.
- Foulkes of Cumnock, L.
- Freyberg, L.
- Gale, B.
- Gibson of Market Rasen, B.
- Giddens, L.
- Gilbert, L.
- Golding, B.
- Gould of Potternewton, B.
- Grantchester, L.
- Greenway, L.
- Grenfell, L.
- Grey-Thompson, B.
- Grocott, L.
- Hall of Birkenhead, L.
- Hanworth, V.
- Harris of Haringey, L.
- Harrison, L.
- Hart of Chilton, L.
- Haskel, L.
- Haworth, L.
- Hayter of Kentish Town, B.
- Healy of Primrose Hill, B.
- Hilton of Eggardon, B.
- Hollis of Heigham, B.
- Howarth of Breckland, B.
- Howarth of Newport, L.
- Howe of Idlicote, B.
- Howells of St Davids, B.
- Hoyle, L.
- Hughes of Stretford, B.
- Hughes of Woodside, L.
- Irvine of Lairg, L.
- Janner of Braunstone, L.
- Jones, L.
- Jones of Whitchurch, B.
- Judd, L.
- Kennedy of Southwark, L.
- Kilclooney, L.
- King of Bow, B.
- King of West Bromwich, L.
- Kingsmill, B.
- Kinnock, L.
- Kinnock of Holyhead, B.
- Kirkhill, L.
- Knight of Weymouth, L.
- Layard, L.
- Lea of Crondall, L.
- Liddle, L.
- Lister of Burtersett, B.
- Lytton, E.
- McAvoy, L.
- McConnell of Glenscorrodale, L.
- McDonagh, B.
- Macdonald of Tradeston, L.
- McFall of Alcluith, L.
- McIntosh of Hudnall, B.
- MacKenzie of Culkein, L.
- Mackenzie of Framwellgate, L.
- McKenzie of Luton, L.
- Maginnis of Drumglass, L.
- Martin of Springburn, L.
- Massey of Darwen, B.
- Maxton, L.
- Meacher, B.
- Mitchell, L.
- Monks, L.
- Morgan, L.
- Morgan of Huyton, B.
- Morris of Aberavon, L.
- Morris of Handsworth, L.
- Myners, L.
- Newcastle, Bp.
- Newton of Braintree, L.
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My Lords, it is always a pleasure to follow the noble Lord, Lord Newton of Braintree. The House will know, of course, that he has held high ministerial office, having been a Cabinet Minister and a Secretary of State, but also as a former Leader of the House of Commons he brings distinguished experience to your Lordships’ House. The Minister should reflect on the wisdom of what the noble Lord has just said.
While we all accept that legislation is not like semaphore—it is not just about sending signals—there is grave public anxiety about many of the provisions in this Bill and support for this amendment can show that we have read the signals and responded. The right reverend Prelate the Bishop of Exeter expressed the concern of groups such as Citizens Advice about the load that will be placed on their shoulders. The noble Lord, Lord Carlile of Berriew, expressed the concerns of groups such as claimants. He and I were privileged at the very outset of the proceedings of the Bill to meet a lady who is bringing up a brain-damaged child and who told us in no uncertain terms about the problems that would have beset her if she had not had access to justice via legal aid.
It is for that reason that I support my noble friend’s amendment today. As he has rightly said, it will not cost the Exchequer money but it sends a signal and lays down an important principle. It invites us to consider again the purpose of legal aid, which, when Hartley Shawcross introduced it in 1948, was one of the principles of the founding of the welfare state. It also invites us, especially those of us who are not lawyers, to consider the importance of access to justice for many people throughout this country. As the noble Lord, Lord Hart of Chilton, said, it is moderate and realistic. Access to justice is not a service or a product but an intrinsic right for every citizen. Dr E.J. Cohn made the case best when he said:
“Just as the modern State tries to protect the poorer classes against the common dangers of life … so it should protect them when legal difficulties arise. Indeed, the case for … protection is stronger than the case for any other form of protection. The State is not responsible for … old age or economic crises. But the State is responsible for the law”.
This is not simply a moral duty but a legal one. As the European Court of Human Rights has held, an overly restrictive legal aid system can be a violation of Article 6 if it means that there is a significant inequality of arms and the individual is unable to mount an effective defective defence or claim. It is in this light that the first line of the Bill should be construed—namely, in the light of the important moral and legal duty under which the Lord Chancellor would be placed.
The beginning of any piece of legislation will often articulate the principles driving it. This Bill is no different. The noble Baroness, Lady Mallalieu, was right to remind us of that. It is the overriding duty of the Lord Chancellor to provide effective legal assistance to those in need, which should be the backdrop against which all other clauses of the Bill are construed. It is therefore crucial that the first clause should provide clarity as to what that duty is, as well as on its more general nature. As presently construed, Clause 1 lacks any clarity of principle. It does not focus on the needs of the citizen or on the fact that such assistance must be effective. Instead, it presents the Lord Chancellor’s duty as being extremely narrow, focusing simply on enacting the Bill, rather than on ensuring any greater principles.
In contrast, my noble friend’s amendment seeks to remedy that fault by focusing the nature of the Lord Chancellor’s duty on being, first, effective and, secondly, according to one’s needs. The principles of effectiveness and provision according to need go to the heart of what is meant by providing proper legal assistance. It is critical that all assistance provided must be effective—what is the point otherwise? For it to be otherwise would be likely to hinder an individual’s access to the courts as well as likely resulting in a waste of money. As to need, it is important that legal aid goes to those who need it and those people only. Indeed, that is the whole point of the scheme. It is therefore important to state that unequivocally and clearly at the beginning of the Bill. Should the Lord Chancellor wish to demonstrate that he is effecting his duty properly, that duty is then stated in the Bill.
However, it is also important to note that the amendment does not place an undue burden on the Lord Chancellor. Nor does it curtail much of what the Bill strives to achieve. The Minister might be right to worry that the Lord Chancellor would be placed under too heavy a burden—a herculean task that would need a huge amount of both time and resources. However, he need not harbour such concerns unduly. My noble friend’s amendment clearly states that such a duty would be restricted to the provisions in the Bill. The amendment would simply recognise that the duty of a Lord Chancellor is to provide legal assistance, as provided in the later clauses of the Bill, but that he must do so in a manner that is both effective and according to need. This is entirely reasonable. If the Government resist the amendment, alarm bells should ring about their apparent covert intentions, and many suspicions will be confirmed about the potential ramifications of the Bill for access to justice. The amendment might go some way to assuage those misgivings. For those reasons, I am very happy to support my noble friend’s amendment.
The amendment was carried———————————————————————————————————
An amendment to continue access to legal aid by disabled people seeking representation at tribunals to determine the support which they receive:7 Mar 2012 : Column 1789
Lord Alton of Liverpool: My Lords, I am a signatory to Amendment 12. I am very happy to support the sentiments expressed by the noble Lord, Lord Howarth, and I support what the amendment says about extending this to the Second-tier Tribunals as well as the First-tier Tribunals, which are mentioned in the amendment by the noble Baroness, Lady Doocey. The noble Baroness and I have known each other longer than either of us would care to recall. I know that this is not some passing fancy on her part. She has had a lifelong devotion to the cause of disabled people. She spoke with great eloquence and conviction in Committee and she has been courageously persistent in our proceedings to raise this matter today. In the long and distant past, I worked for five years with children with special needs. Many of us in the House-the noble Lord, Lord Howarth, is one-have had personal experience of people with disability and know, as one noble Lord said earlier, some of the most vulnerable people in society. Surely how we protect and treat them is a test of how civilised we are as people.
Four out of five cases heard in the First-tier Tribunals relate to people who are disabled. Despite what the noble Lord, Lord Carlile, said, and he is right to say that disabled people are as capable as anyone else in dealing with their own affairs, but 78 per cent of those receiving advice before going to a tribunal were more likely to win their appeal than those who did not. Clearly, having professional, legal advice pays off. Who would we take that advice away from; who would we take this professional care and help away from? Disabled people will be left to their own devices. Inevitably, that will lead to more social exclusion and innumerable negative results.
Secondly, we have been told again and again that we have to do these things for economic reasons, but I hope that, when the Minister replies, he will respond to the points made by the noble Lord, Lord Carlile, about the so-called economic savings that might be brought about by these measures. As the noble Lord, Lord Newton, has told us in his remarks, it is highly questionable. There is empirical research-an academic study-by King’s College. In its report, United Consequences, it flatly repudiates and rejects the idea that savings will be made. Citizens Advice says that every pound spent on welfare benefits potentially saves the state £8.80. I certainly would want to hear from the Minister that he repudiates those findings before the House reaches a conclusion on these questions; what analysis he has made of those reports; and how, therefore, we can justify doing this on purely economic, austerity measure-based arguments of the kind that we have heard so much about during our proceedings.
The third point, which was touched on by the noble Lord, Lord Newton, and to which others have referred, is about who will pick up the pieces subsequently. Many of us have received a copy of the Citizens Advice report, Out of Scope, Out of Mind-Who Really Loses from Legal Aid Reform. That states:
7 Mar 2012 : Column 1790
“When Government consulted on the proposed changes to the scope of civil legal aid, 95 per cent of respondents did not agree with the proposals”.
It goes on to say:
“Official data shows that 80 per cent of social welfare cases achieve positive outcomes for clients, which can involve savings for other services”.
That backs up the point I made a moment ago. The report concludes:
“However, it is also clear that they would not have achieved these positive outcomes on their own. If they could be empowered to help themselves without specialist advice, casework and support from legal aid, then every CAB would rejoice, but that is not the reality. It will be a massive failure in the justice system if they are abandoned”.
It will be a massive failure in the justice system if they are abandoned. That is what we are being asked to vote on today and I hope that the House will support the noble Baroness, Lady Doocey, and the noble Lord, Lord Bach, when we decide on these matters.
The amendment was carried
Three shocking stories indicate a depravity and brutalism which at first glance appears beyond belief. But these wake-up calls are all too real.
The first concerns a group of ethicists linked to Oxford University who argue that newborn babies are not “actual persons”, don’t have “a moral right to life” and can legitimately be killed after they are born. It’s called infanticide although they prefer the euphemism “after birth abortion.”
This weekend marks the first anniversary of the assassination of Clement Shahbaz Bhatti. Aged 42, the life of Pakistan’s Federal Minister for Minorities, was cut short by self described Taliban assassins. His murderers scattered pamphlets describing him as a “Christian infidel”. The leaflets were signed “Taliban al-Qaida Punjab.”
Legal aid Bill blow to asbestos victims: Letter to The Times, March 3rd 2012.
Asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice
Sir, There have rightly been many reports on the damaging effects of the Legal Aid, Sentencing and Prosecution of Offenders Bill on legal aid. But nothing has been reported on the grossly unjust effect of Part 2 of the Bill on victims of asbestos dying from the cancer mesothelioma.
Provisions in the Bill require terminally ill asbestos victims who succeed in a claim for compensation against negligent, guilty employers to pay 25 per cent of their damages for pain and suffering in legal costs associated with the conditional fee agreement system (CFA). The Government’s argument that this will deter frivolous and fraudulent claims is, frankly, risible as far as dying asbestos victims are concerned. The Government has identified increasing road traffic accident claims and alleged whiplash claims as the real problem (in total, whiplash claims add up to a staggering £2 billion annually), especially as road traffic claims amount to more than 70 per cent of all personal injury claims.
The Government’s additional argument that making mesothelioma sufferers pay legal costs will drive costs down as they shop around for the best “deal” is untenable as many sufferers are so defeated by their illness they never make a claim as things stand now.
Legal aid provided public money for test cases and difficult and meritorious cases to be run, until the present CFA system required losing, guilty defendants to pay. It is now proposed that one claimant must pay for another claimant’s chance to gain access to justice. Important test cases which have determined the right of mesothelioma sufferers to claim would never have been run under the new prescription.
Asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice, nor can they afford to defend test cases run by rich insurers. Eighteen peers have signed a letter calling on colleagues to support all-party amendments at the Report Stage in the Lords to protect asbestos victims from a gross injustice.
Professor Lord Alton of Liverpool
Professor Baroness Finlay of Llandaff
Lord McFall of Alcluith
House of Lords
A note from Lords ALTON, AVEBURY, BACH, BEECHAM, + NICHOLAS BLACKBURN, BRENNAN, BUTLER-SLOSS, ELYSTAN-MORGAN, FINLAY OF LLANDAFF, HOWARTH, McCOLL, MCFALL, MONKS, NEWTON, PATEL, WALTON OF DETCHANT, WIGLEY
At Report Stage of the Legal Aid, Sentencing and Punishment of Offenders Bill consideration will be given to all-party amendments which protect the legal remedies open to victims of mesothelioma.
Mesothelioma is a terrible disease, contracted as a result of exposure to asbestos, and from diagnosis a victim’s life is drastically curtailed. Not qualifying for legal aid, they rely on Conditional Fee Agreements (CFAs) to fund their cases. Currently, they do not pay legal costs out of their compensation.
We set out briefly why the Government’s arguments for making asbestos victims pay 25% of their damages for pain and suffering to pay for legal costs are deeply flawed.
The Government argue that CFAs, as currently constructed, mean that win or lose, a claimant risks nothing and this has encouraged frivolous and fraudulent claims to flourish. We argue that dying asbestos victims’ claims can never be frivolous or fraudulent.
Who then is responsible for exploiting CFAs? The Government is quite clear: road traffic accident (RTA) claims, which make up over 70% of all personal injury claims, particularly whiplash claims, are to blame (in total, whiplash claims add up to a staggering £2 billion annually). We argue that RTA problems will not be resolved by punishing asbestos victims.
Additionally, the Government argues that legal costs are too high because claimants have no investment in controlling costs. Making claimants pay costs will, apparently, mean that they will shop around for the best deal. We argue that dying asbestos victims have already ‘invested’ enough, and given their pitiable condition it is risible to suggest that they will ‘shop around’.
Currently, solicitors are paid a ‘success fee’ by the losing defendant to fund very difficult but meritorious cases. This replaces funding which was available under Legal Aid. Now, one claimant must pay for another claimant’s chance to gain access to justice. Important test cases which have determined the right of mesothelioma sufferers to claim would never have been run under the new prescription. We argue that asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice, nor can they afford to defend test cases run by rich insurers.
The vast majority of all work-related respiratory diseases are work-related asbestos diseases. To date, over 30,000 people in the United Kingdom have died from mesothelioma, and over 60,000 more are yet to lose their lives due to past exposure to asbestos. We argue that they suffer enough. It is iniquitous that they should lose their modest compensation to reduce solicitors’ costs. Solicitors’ costs can be reduced directly, and access to justice preserved, but not by scapegoating asbestos victims.
We very much hope you will consider supporting these amendments.
ALTON, AVEBURY, BACH, BEECHAM, + NICHOLAS BLACKBURN, BRENNAN, BUTLER-SLOSS, ELYSTAN-MORGAN, FINLAY OF LLANDAFF, HOWARTH, McCOLL, MCFALL, MONKS, NEWTON, PATEL, WALTON OF DETCHANT, WIGLEY
Page 30, line 32, at end insert—
“( ) The amendments made by this section do not apply in relation to proceedings which include a claim for damages for respiratory disease or illness (whether or not resulting in death) arising from industrial exposure to harmful substance.”
Page 32, line 39, at end insert—
“( ) The amendment made by this section does not apply in relation to proceedings which include a claim for damages for respiratory disease or illness (whether or not resulting in death) arising from industrial exposure to a harmful substance.”
Page 32, line 46, at end insert—
“( ) The repeal made by subsection (1) does not apply in relation to proceedings which include a claim for damages for respiratory disease or illness (whether or not resulting in death) arising from industrial exposure to a harmful substance