My Lords, I will speak primarily about the amendments that my noble and learned friend Lord Woolf has proposed. This part of the Bill is concerned only with claims for pain and suffering. It has nothing to do with any other form of loss. Other forms of loss are easily quantifiable, but loss arising from pain and suffering is a development of the law that has very little in the way of structure.
When I was a junior at the Scottish Bar long ago these matters were often the subject of jury claims. Pain and suffering was an element in a jury claim. The judges were warned against suggesting a figure to the jury. You can imagine how difficult it was to provide a summing up that dealt with that. I remember well that one of the senior judges that I knew had a formula in which he said, “This is a sum to mark your sense of the pain and suffering that the claimant has suffered”. That was done by juries; it was before the time that judges were involved in this, and therefore it was a jury question. It has all the character of a jury question in
the sense that there are no rules that I know of—none has so far been quoted—to determine the amount to be given. How has that been done? As my noble friend has just quoted from the judicial guidance, it has been done by collecting what others have decided in other cases. There is nothing specifically judicial about that. I think almost any of us could manage to deal with that; you do not need to be a very experienced judge to do that kind of calculation.
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What the Bill does in this aspect is to make a system out of the situation in which there is a tariff to deal with this matter. The tariff is to be fixed by the Lord Chancellor. My noble and learned friend has suggested that this sort of thing is an innovation. In a sense it is an innovation, but it is an innovation that just works on the principle of the present system. The present system is one in which the judges look to what has been decided already in that particular type of case and try to make some kind of adjustment if that is seen to be necessary, because no two cases are absolutely the same. Therefore, in my submission to your Lordships, what is being proposed here is to have a system that reflects the nature of the award in a way that is derived from consultation, which of course includes the Judicial College’s findings.
So far as I understand the point, there is no suggestion that the awards need to be reduced beyond what is a reasonable figure for injuries of that type. The idea that judges fix these is really rather theoretical, because the number of cases that are involved is far beyond what the courts could accommodate. In fact, most of these cases are settled by negotiation. What is better to make a reasonably quick and cheap negotiation than to have a good sense of what the aim is? That is what the tariff does. In my submission, this is an excellent way of dealing with a practical problem that in no sense departs from the position that a judge should determine a matter that is really an issue when you realise how the judges do it.
We also have to think about the other aspects of this matter. One of the difficulties for insurance companies faced with fraudulent claims is that they require the assistance of the person insured to challenge the claim. People do not care to be required to do that, but it is required if you are going to contest the claim. I do not suggest for a minute that that should not continue. There is nothing in the Bill to prevent the insurance company, if it wants to, from contesting the claim altogether. This is only settling the quantum of the claim by a system that is very like the judicial system of doing it. I know of no better way of deciding this sort of pain and suffering claim than to see what has been done in other cases already. Therefore, in my submission to your Lordships, this is a perfectly reasonable way of dealing with a large problem—a very large number of cases at the same time—and I sincerely hope that your Lordships will support the principle of the Bill in the way that it has been set out.