Criminal Justice and Courts Bill

Debate between Lord Marks of Henley-on-Thames and Lord Hope of Craighead

Wednesday 22nd October 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I am very much in sympathy with the points made by the noble Lord, Lord Hunt of Wirral. He was inviting the Minister, I think, to examine the entire clause to see whether what he is proposing fits in with all of it. I draw the Minister’s attention to just one point. Clause 49(3) states:

“The duty under subsection (2)”—

which is one to dismiss a primary claim—

“includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest”.

It is conceivable that there could be elements in the broad formula which the noble Lord has proposed in Amendment 128 which would not be tainted by the dishonesty. I do not believe that it is his intention that that should actually be struck out. If the Minister and his advisers are considering the wording, one point to look at with care, I suggest, is whether some allowance should be made for the possibility that there are claims within claims which are not tainted by the dishonesty—which of course everybody would like to see visited with the sanction that Clause 49 is designed to impose.

[Lord Marks of Henley-on-Thames]

My Lords, in Committee I moved an amendment suggesting that the duty to dismiss personal injury claims tainted by fundamental dishonesty should be a discretionary power rather than a duty. In other words, courts should be entitled to dismiss such claims, but not bound to do so. I also suggested that there should be a power to reduce such claims in appropriate cases rather than to dismiss them altogether, which is a view that I have long held.

I recognise now, as I recognised then, that the Government are concerned to tackle the challenge posed by the proliferation of thoroughly dishonest, largely small, personal injury claims following accidents, particularly motor accidents. I agree that this is a serious problem that needs to be met head on. I was particularly impressed in Committee by the speech of my noble friend Lord Hunt of Wirral on the issue. He speaks of course with a wealth of experience of cases in this area and of the challenges faced by the insurance industry in dealing with them. He spoke then of the evil of the proliferation of whiplash claims. I agree with his Amendment 128 today that any claim included in a personal injury claim should be caught by the section. In answer to the point made by the noble and learned Lord, Lord Hope, I say the section as amended by my amendments—because the problem at the moment is that the whole claim has to be dismissed. That is one of the problems that is addressed by my amendments.

I have in this case modified my amendment substantially for Report in the light of the debate in Committee. My Amendment 128B draws a sharp distinction between smaller claims and more substantial ones. I recognise that the problem that the Government seek to address—the multiplication of fundamentally dishonest claims—arises mostly in the case of smaller claims. My new amendment today would effectively maintain the Government’s position in respect of any claim worth less than £25,000 overall.

However, I maintain my concerns in respect of more substantial personal injury claims. I have conducted over the years a great many claims in this category and I refer to my interest in the register as a practising barrister in this regard. Unfortunately, many of these substantial claims are also tainted by fundamental dishonesty. In Committee I gave the example, hypothetical but not untypical, of a very substantial claim for damages for personal injuries following a serious accident. Out of a total claim value of about £6 million, one element—or head of claim—was a claim for loss of earnings of about £500,000. That head of claim was fundamentally dishonest, because the claimant had suppressed a notice of redundancy given to him before the accident so that the substantial loss of earnings claimed would in fact have been sustained had the accident not occurred. It was therefore, of course, irrecoverable from the defendant.

Nevertheless, the claimant had a valid care claim—a different head of claim, untainted by dishonesty, to take the point of the noble and learned Lord, Lord Hope—worth about £4 million. That claim would have covered the cost of his full-time residential care, with carers, for the rest of his life. The nub of this point is that he himself would not suffer injustice if his whole care claim was dismissed because his care would be paid for by the state in any event. The exception in the clause covering the case—that the claimant would suffer substantial injustice—would therefore not bite.

However, it would certainly be wrong for his entire claim to be dismissed. The right course would be to reduce his claim. Obviously, his loss of earnings claim would be dismissed because that would fail in any event, but the court might also decide to reduce other elements of his damages as well—notably his personal award, which is not tied to specific loss, for general damages, pain, suffering and loss of amenity—to mark the dishonesty. However, without the discretion to reduce the claim instead of dismissing it altogether, the outcome would be that the entire claim would be dismissed—all its heads—and in this example that would cost the state a great deal of money that the negligent defender’s insurers ought to be paying.

I suggest that the clear way to resolve this difficulty is for there to be a power in larger cases either to dismiss a claim tainted by fundamental dishonesty or to reduce the award of damages in such a way as the court deems just. Judges have plenty of experience in dealing with dishonest claims. They can tell what is fundamental dishonesty and what is not, and they can tell what is just and what is not. As one might expect, judges generally dislike dishonest claims intensely and can be trusted to deal with them with appropriate toughness. I invite the Government to agree that mandating courts to dismiss small claims, unless to do so would cause the claimant substantial injustice, but leaving judges free to deal appropriately with larger cases, would be a sensible and proportionate way to approach this issue.

I hope that my noble friend might return at Third Reading, after considering this issue along the lines that I have mentioned, with a solution. I should say that I will not press Amendment 128F in respect of subsection (5), because a combination of the amendment in the name of the noble Lord, Lord Faulks, and the amendment moved by my noble friend Lord Hunt would meet the requirements of orders to cost. That said, I invite my noble friend and the Government to consider this further.

Judicial Appointments Commission Regulations 2013

Debate between Lord Marks of Henley-on-Thames and Lord Hope of Craighead

Monday 22nd July 2013 Grand Committee

[Lord Marks of Henley-on-Thames]

My Lords, I wish to make a brief general point about judicial diversity in connection with these regulations. The Committee knows that my noble friend is a forceful advocate of judicial diversity. The Government’s commitment was apparent during the passage of what is now the Crime and Courts Act, and in particular in their promotion of the provisions which find expression in Schedule 13 to that Act. While not wishing to make any judgment about the recent appointment to the position of Lord Chief Justice it is, from the diversity point of view, a shame that the extremely highly thought-of female candidate was not selected. That would have been real and very public progress.

These regulations implement the new systems in ways that are both detailed and welcome, but the imperative is to ensure that we move towards a much more representative judiciary with more women, more ethnic minority judges and judges from a far broader range of social background. These regulations can be no more than a step on the way to achieving that. While they are detailed and welcome provisions, to achieve real change we need a deep and continuing change of culture. That was highlighted in the report of the Advisory Panel on Judicial Diversity, chaired by the noble Baroness, Lady Neuberger and mentioned by my noble friend. I look forward in the future to Government and the judiciary working together to achieve that change.

[Lord Hope of Craighead]

My Lords, I shall make a short point relating to the Supreme Court (Judicial Appointments) Regulations. Before I explain my point, I should declare an interest. I recently retired as deputy president of the Supreme Court. For the past four years I have been a member of the ad hoc commission and thus responsible, along with the president, for a number of appointments, which have included something like a third of the court now sitting as the Supreme Court across the square.

My point relates to diversity in a rather unusual way. As the Minister has explained, one of the aims of redesigning the composition of the selection commission described in Part 3 of these regulations is to meet the recommendation that the commission should no longer be seen to be appointing or selecting for appointment people in their own image. It may be that that was a fair criticism at the time when I was sitting as one of the two judicial members of the panel since the president and I were both men, but I have just retired and I have been succeeded by the noble and learned Baroness, Lady Hale of Richmond. In a way, this follows on from a point just made by the noble Lord that one may regret for diversity reasons the choice of Lord Chief Justice. I make no comment on that, but one great advance that has been made in the Supreme Court is that we now have the noble and learned Baroness, Lady Hale, who is a very vigorous proponent of diversity and is probably best suited of anyone to sit on such a commission.

It is a great misfortune of timing. If she had been in my position when the noble Baroness, Lady Neuberger, came with her members to visit us and to discuss the change, I am sure that the noble Baroness would have seen—it would have been perfectly obvious—that the noble and learned Baroness was there and that we had on our team every component for diversity one could possibly have wished for. As the noble Lord rightly explained, when the draft regulations were discussed with us, it was impossible to make the point that the noble and learned Baroness, Lady Hale, might be my successor because I had not yet resigned and the selection process for my successor had not yet taken place. Therefore, we were very cautious not to make any prediction about who would succeed me. The succession process produced this result only about four weeks ago.

It is a great misfortune of timing has led us to the position where the noble and learned Baroness will now be excluded from participation in the selection process. The regulations are very carefully drafted because the composition of the selection commission in Regulation 11 provides for a senior UK judge to be nominated to take the position which I previously occupied. It is quite clear, if you read Regulation 11(1)(e) with Regulation 14 and Regulation 2, that the senior UK judge can be any senior UK judge other than a judge of the Supreme Court. So it is quite clear it can only be the president who would be the Supreme Court member, and the noble and learned Baroness, Lady Hale, has no prospect of playing any part in the work of the commission.

The way that the appointments have gone in the Supreme Court in recent years means that there will be no fresh vacancy, I think I am right in saying, for two or three years. Now that I have gone, the way is clear for the court to settle down without any real change. However, in two or three, or possibly three or four years’ time, a significant number will retire and fall to be replaced, and the noble and learned Baroness will still be there. The composition of what one might call the next but one Supreme Court will be greatly influenced by the work of this commission. It is a great pity that the reform has taken this form. As I said earlier, I doubt very much whether it would have done before, but I must concede that the Minister is absolutely right to say that the regulations were shown to us. We did the best we could in our discussions to make this point without naming names.

The purpose of my intervention is to express regret at this turn of events and hope that perhaps one day it may be possible to recognise the enormous qualities of the noble and learned Baroness, Lady Hale, and the major contribution she would be able to make to increasing diversity in a way which concerns us all.