Legal Aid, Sentencing and Punishment of Offenders Bill

I will not detain the House long on this group of amendments, which sets out a menu—perhaps almost an à la carte menu—of cases in which it might be appropriate to depart from the general principle that the Bill advances. In other words, it would extend the success fee exemption into personal injury cases more generally. Amendment 121 is of a general nature and perfectly straightforward. It is my understanding that, at the time when the changes were introduced to legal aid for personal injuries and the initial scheme established under the Administration of Justice Act and Access to Justice Act 1999, reservations were expressed by the then Opposition—both parts of it—which I personally shared at the time and still share. I have already outlined the problems that we have with the nature of the uplift and deduction that is contained in the Government’s proposals. I shall not expatiate on those any longer. Amendment 122 looks to complete exemption for employment liability personal injury cases. These are usually intrinsically more difficult than, for example, the RTA case, which all of us agree should not carry the position in relation to success fees and the like that currently apply. Certainly, as a practitioner who spent a lot of time on those cases, I would have thought that there was a strong case for taking those out of the arrangements proposed by the Bill, and that success fees and ATE insurance should rest where they currently do on defendants. Amendment 129 looks at a different category of case—cases of maximum severity on which the Judicial Studies Board guidelines lay down parameters. These cases are necessarily more complicated, certainly in relation to disbursements and the like, and generally heavier to promote than the conventional claim. It may be that in those cases a different regime should apply. Amendment 130 deals with the case of occupier’s liability. There are not all that many personal injury cases arising out of occupier’s liability claims. I am advised that there was a watering down of protections under the Occupiers' Liability Act 1984, although I have to confess that I do not recall quite how much watering down took place at that time. Nevertheless, these are cases in which, again, there are rather more involved in pursuing them than in a straightforward claim and this is also a possible case for modifying the general approach of the Bill. On Amendment 134, the noble and learned Lord has referred to a welcome provision for increasing the damages for bereavement, which are generally thought to have been too low in any event. That increase will also assist in these cases, but the proposal in this amendment is to deal with success fees and to provide that they might also be levied in these cases, which are often somewhat more difficult to pursue for the very reason that the unfortunate deceased cannot give an account of what happened. It is not always the case that that is what makes it more difficult to pursue but it very often will be, and in those circumstances the success fee argument about that falling on the defendant becomes correspondingly stronger. Amendment 136A also refers to an area of law which I think we come on to later. The noble Lord, Lord Alton of Liverpool, has an amendment on asbestosis, which is a terrible disease—I have some professional experience of it—but not the only disease that has caused great pain and suffering for many people. There is a whole raft of cases, such as pneumoconiosis cases, while others such as repetitive strain injuries are somewhat different. They are troublesome but by no means as serious, yet nevertheless quite complicated, and some of them have given rise to compensation schemes negotiated nationally. There is of course still the issue of pleural plaques, which has been adequately dealt with in the noble and learned Lord’s jurisdiction although not in the constituency, as it were, of his noble colleague the Minister. England has not taken the same view about pleural plaques as Scotland, which is unfortunate, but again that underlines both the complexity of the system and therefore, in our view, the need not to restrict the successful claimant’s damages by reducing them to paying for success fees and ““after the event”” insurance. Amendment 136B makes the point that in personal injury cases where a public authority is liable it seems reasonable that such an authority, representing as it does the whole community, should participate in pooling the risk which the scheme was originally designed to promote rather than the cost of it being met by successful plaintiffs. In this context, the whole community should be involved since it is authorities acting on its behalf who will have been deemed liable, whereas in other cases it is sectional interests represented by separate insurance companies—for which we would still argue, but this is a different case. Those amendments refer to the success fees and the following amendments deal with costs orders. Again, there is a general application of the principle to all personal injury cases, unless of course we have QOCS fully implemented in a way which goes somewhat further than the Government currently propose, with the limitations that we have already discussed. Again, Amendment 152 would make ATE costs recoverable in the case of employers’ liability cases, while Amendment 156AA makes the same argument in relation to disease cases and Amendment 156C preserves cost liabilities by agreement for industrial illness liability cases. It would be welcome if the Government were to welcome all these. I anticipate that that will not be the Minister’s response, but it may be that, on further consideration, some of these categories of case would evoke more sympathy, and possibly a modification in the Government’s stance, than others. For that reason, I invite the Minister, if not today then later, to peruse the menu with particular care and maybe select some, if he cannot select all, of these improvements, as we would regard them, to the scheme that the Bill lays out.