§ Baroness of Turner of Camden asked Her Majesty's Government:
§ Whether the proposals in the Lord Chancellor's consultation paper in regard to small personal injury claims could be disadvantageous to employees suffering injuries at work and what steps can be taken to protect their interests.
§ The Lord Chancellor (Lord Mackay of Clashfern)My Lords, I do not believe that these proposals would be disadvantageous to employees suffering injuries at work. On the contrary, I believe that the advantages of speed, simplicity and low cost offered by the small claims forum can benefit all those with small, straightforward claims. It may be worth noting that the Court of Appeal, in its recent judgment in the case of Afzal v. Ford Motor Company, expressed its view that the procedure was suitable for claims of this type.
§ Baroness Turner of CamdenMy Lords, I thank the noble and learned Lord the Lord Chancellor for that response. However, is he aware that industrial injury claims are not of the same order as the kinds of claim normally dealt with in the small claims court? They are much more complex; specialist advice and evidence may be required; health and safety regulations are involved and the employers' insurers will almost certainly be represented. In those circumstances, does the noble and learned Lord believe that the small claims court procedure will result in justice for people who suffer industrial injuries?
§ The Lord ChancellorMy Lords, like many other types of claim, such claims vary in their complexity from case to case. The Court of Appeal, in the judgment to which I referred, clearly expressed the view that claims regarding employers' liability were not unsuited to small claims arbitration as it is presently constituted although, in exceptional cases, the court has power to order the case to proceed to trial. I take it from that that the Court of Appeal thought that, in the ordinary run of case, the small claims court was a suitable way of dealing with the matter. However, there may be an exceptional case within that category which should have a full trial.
§ Lord AcknerMy Lords, is it not a feature of the small claims court that the winning party cannot recover costs? That is no doubt perfectly satisfactory in the simple case, but it may be a source of potential injustice where the plaintiff needs an accident expert, an engineer and possibly medical reports and evidence. If the matter 1428 is contested, it is extremely expensive. If costs cannot be recovered from the insurance company, will not that create an imbalance which can lead to injustice?
§ The Lord ChancellorMy Lords, at the present time the general situation with regard to small claims is that the amount recoverable by way of costs from the other side is limited. The Court of Appeal was dealing with that regime in its judgment. My proposals, published before the Court of Appeal judgment was issued, endeavoured to deal with the point raised by my noble and learned friend Lord Ackner by allowing a degree of cost recovery suitable to the situation. It. is a feature of the small claims regime that the risk of having costs awarded against one is removed. It is that risk which is often a disincentive to making claims in the ordinary court. It is a question of trying to balance those various factors and produce a reasonable result.
§ Lord Campbell of AllowayMy Lords, can my noble and learned friend explain the proposals for access at an early stage to sound legal advice and how it is to be paid for? That is important not only at the initial stage, but also at the stage of settlement.
§ The Lord ChancellorMy Lords, it is possible to obtain legal advice outwith legal representation. One must consider whether or not the proposals are suitable for the simpler types of claim. As I said earlier, there is a great variety in this type of claim as there is in many other types. I am trying to see whether, for the simpler types, a simpler form of litigation is appropriate and whether a degree of legal advice, apart from representation, may be appropriate.