Conditional Fee Agreements Order 1998

HL Deb 23 July 1998 vol 592 cc1100-20

7.35 p.m.

The Lord Chancellor (Lord Irvine of Lairg) rose to move, That the draft order laid before the House on 16th July be approved [42nd Report from the Joint Committee].

The noble and learned Lord said: My Lords, the draft Conditional Fee Agreements Order 1998 revokes the Conditional Fee Agreements Order 1995. The 1995 order specified the proceedings in which conditional fee agreements could be made: personal injury cases; insolvency cases; and cases before the European Court of Human Rights. The new draft order increases, to the fullest extent possible under the legislation, the proceedings in which a person may enter into a conditional fee agreement with his or her lawyers. Conditional fee agreements will be lawful in all civil proceedings, except family proceedings.

The Joint Committee on Statutory Instruments has reported the draft order as "making an unexpected use of powers". The committee says that "all proceedings" is not a description of proceedings which can be properly specified under Section 58. I disagree. For the purposes of Section 58(3) and (4) of the Courts and Legal Services Act 1990 the test to be fulfilled is whether or not the proceedings are of a description specified by order. In my opinion the proceedings that can be described can logically range from one specific proceeding to all proceedings. Under the Interpretation Act the singular includes the plural and proceedings of a description can embrace proceedings of all descriptions other than those excepted. In my opinion the order proposed complies with the statute.

The new draft order also specifies, as I am required to do by the primary legislation, the maximum percentage that may be charged as an uplift on the fees. This is set at 100 per cent., as it was before. Your Lordships will know that I am urged by my noble and learned friend Lord Ackner this evening to go further and to set a cap on the success fee by reference to a percentage of the damages recovered. I have to tell the House that I cannot accept his amendment, not least because I believe the course he urges me to take to be ultra vires.

Parliament has plainly provided, in subsections (2) to (5) of Section 58 of the Courts and Legal Services Act 1990, an exhaustive code by which the maximum uplift of normal fees is to be fixed. It is plain from subsections (2) and (5) that any order to be made by the Lord Chancellor shall prescribe the maximum permitted uplift by reference only to a percentage of the fees of the lawyer. There is no power to impose a cap as a percentage of the damages recovered. Therefore, the noble and learned Lord's amendment to my order, if carried, would produce this absurdity: the House would be inviting me to make an order which in law was ultra vires. Obviously I would not do that; and I would lack the authority of the House to make the order that I propose which is intra vires.

I turn now to the merits of the order. Conditional fee agreements will result in a huge expansion of access to justice. Today only the very rich or the very poor can afford to litigate. In future everyone with a really strong civil case will be able to secure his rights free of the fear of ruin if he loses. They will bring the majority of our people into access to justice. The Law Society has announced today that it strongly supports the order I bring before your Lordships this evening.

Conditional fees have been the means by which at least 45,000 personal injury cases have been brought. Many, in all likelihood, would not have been brought but for the existence of conditional fees.

In our consultation paper, Access to Justice with Conditional Fees, the Government sought views on the possibility of extending the availability of conditional fees as widely as possible. The responses we received showed conclusively that most respondents were in favour of extending the availability of conditional fee agreements more widely.

It is clear that people are enthusiastic to use funding arrangements which give them access to the courts and share the risks of litigation with their lawyers.

If successful, a lawyer is paid his normal fees and, as recompense for agreeing to share the risks of litigation and to take no fee in the event of an unsuccessful outcome, the lawyer charges a success fee. This is fixed in advance as a percentage of the normal fees. This cannot be more than 100 per cent. On average, the percentage is less than 50 per cent. Most lawyers have voluntarily agreed to a further restriction by agreeing that the success fee will not exceed 25 per cent. of the damages. This is of particular value in smaller claims.

Conditional fees do not give lawyers a direct interest in the amount of the damages. This can be contrasted with contingency fees, commonly used in America, where the lawyer's direct interest is in the amount of the damages because the fee is set as a proportion of the damages secured. A conditional fee agreement sanctions only an uplift on what the fee would be otherwise.

I also find it strange that complaint is sometimes made that lawyers should not have a financial interest in cases, as if our present system eliminated any interest of this kind. As my noble and learned friend Lord Hoffmann so lucidly pointed out to your Lordships on 9th December 1997, lawyers are paid according to what they do and they decide how much they are going to do. It is therefore in their financial interest to do as much as possible".—[Official Report, 9/12/97; col. 66.] The profession has shown, and will continue to do so, that as professionals they are able to deal properly with any conflict and resolve it without detriment to their clients. It would be extraordinary if the only reason we continued to deny access to our courts through the use of conditional fees is that we cannot trust the lawyers to deal honestly with their clients.

In recent weeks I have spoken to the representatives of several leading insurance companies. I am impressed by the inventiveness and creativity of the industry in seeking to develop new products to meet the demands of clients who may now choose to use conditional fee agreements.

From my discussions with the representatives of the industry, I am confident that newer, even better products will be launched in the coming months, although for obvious reasons of commercial confidentially I cannot go into details at this stage. All of these products will make using conditional fees more attractive.

The Government are also considering making the success fee and the insurance premium recoverable from the unsuccessful defendant. To do so would require primary legislation. My present thinking is that it is reasonable to make those who have been held liable by the court responsible for all the costs the successful party incurs to secure justice, including the insurance premium and the success fee. This would substantially remove the argument that plaintiffs' damages should not be diminished by the amount of the uplifts.

The order demonstrates, if any further demonstration were necessary, the Government's determination to achieve maximum access to our courts. I commend this order to the House. I beg to move.

Moved, That the draft order laid before the House on 16th July be approved.—(The Lord Chancellor.)

7.44 p.m.

Lord Ackner rose to move, as an amendment to the above Motion, to leave out from ("That") to end and insert ("this House calls on Her Majesty's Government to withdraw the draft Conditional Fee Agreements Order 1998 and re-lay it in amended form so that the maximum amount payable under a conditional fee agreement expressed in percentage terms in relation to the amount of any sums which may be recovered shall not exceed 25 per cent.")

The noble and learned Lord said: My Lords, we live in very strange times. From the Statute of Westminster 1275 until a little less than 10 years ago, speculative litigation was contrary to public policy. That was because it was considered that it affected, as it does, the independence of the lawyer so that his advice might be distorted; he might exploit his client and he might engage in practices which were contrary to the interests of justice and thus undermine its integrity.

Section 58 of the Courts and Legal Services Act 1990 changed the situation and made conditional fee arrangements permissible. It was introduced, I am sorry to say, and, I believe, quite unintentionally, on a false prospectus. We were told initially that only 5 per cent. could be added to the costs of the solicitor. Later it was increased to 10 per cent., then to 20 per cent. and then, with great hostility from the Lord Chancellor's own Advisory Committee, it went up to 100 per cent. However, it was intended that it would have no effect on legal aid. As a result we have provision in Section 15(4)(a) of the Legal Aid Act 1988, which provides: A person shall not be refused representation for the purpose of any proceedings on the grounds (however expressed) that it would be more appropriate for him and a legal representative of his to enter into a conditional fee agreement (as defined by Section 58 of the Courts and Legal Services Act 1990)". It is now being proposed that legal aid should cease in money recovery cases and in its place should come the conditional fee. I am deeply concerned, as many others are, about the whole system. I appreciate that it is water under the bridge now as regards the whole question of conditional fees being permitted. But although it is water under the bridge, there is some significance that the section was enacted in the teeth of opposition from seven Law lords, the Master of the Rolls, a former Lord Chancellor, my noble and learned friend Lord Hailsham, a former Attorney General and the noble and learned Lord, Lord Rawlinson of Ewell, and the Law Commission as well.

The history has this relevance. It is incontrovertible that in this new field one should proceed gradually and with caution. It was in 1995 that a statement in Access to Justice. A Fair Way Forward produced, I believe, for the Labour Party conference of that year where conditional fees were dismissed as a gimmick designed to mask the chaotic state of the legal aid scheme and the court service". It went on to say this—and I emphasise it, We regard conditional fees as an experiment to be monitored closely".

The Lord Chancellor's Advisory Committee advised my noble and learned friend's predecessor in 1995 that given the novelty and the potential risk to litigants of this untried scheme, it must be effectively monitored; merely monitoring a sample was not, in the committee's view, sufficient.

Conditional fees were introduced in July 1995 and all that the Lord Chancellor's advisory committee was permitted to do was to commission the Policy Studies Institute to provide a report on a sample. The sample involved only 60 lawyers and 197 cases. The report is entitled, The Price of Success. I refer briefly to one of its conclusions, headed, "Assessment of Risk". It is found on page 86 and it states: The research raises serious questions about the way in which solicitors assess the probability of success of cases. Personal injury claims generally have a very high success rate, yet solicitors in this survey rated a large proportion of cases as having relatively small chances of success. There are a number of possible explanations". Those are referred to. It continues: This is a crucial issue, because it affects the level of fees that the client pays to compensate the solicitor for the risk of not being paid at all. If the public suspects that solicitors are inaccurately estimating the risk, it will undermine their confidence in the whole system. If they believe that solicitors are doing so in order deliberately to inflate the uplift, despite rules on professional conduct, there is a risk that the whole conditional fees system could be brought into disrepute. This would have serious implications for the extension of conditional fees (in other areas)". The various respects in which further inquiries should be made are then set out.

In my noble and learned friend's speech in Cardiff—published after the report and no doubt at a time when my noble and learned friend the Lord Chancellor had had an opportunity to read it—no mention was made of that report. There was this observation: Conditional fees are working well in the personal injury field". Were they? Not from the perspective of the litigant. The average level of uplift was 43 per cent. That is in an area where 90-plus per cent. of the cases are bound to succeed. In 10 per cent. of the cases, the uplift was between 90 per cent. and 100 per cent.

In June 1995, the House had the benefit of a debate on the first of the conditional fee orders in which an important contribution was made by my noble and learned friend the Lord Chancellor—he but being a mere shadow of himself. I had attacked the 100 per cent. because, in the view of his own advisory committee, it was excessive. My noble and learned friend said this: Personal injury cases, as the noble and learned Lord"— that is me— has rightly observed, are a low risk area of litigation from the standpoint of plaintiffs. In the vast majority the plaintiff succeeds in whole or part. In fact I understand that around 95 per cent. settle, to the advantage of plaintiffs, without any court order. In my view the first thoughts of the noble and learned Lord on the Woolsack on this subject were correct. A 10 per cent. or at most 20 per cent.—uplift was sufficient incentive".—[Official Report, 12/6/95; col. 1553.] The noble and learned Lord should have adhered to that. On that basis, the average being paid out in personal injury cases, the subject matter of the institute's report, is double what my noble and learned friend considered was a generous uplift.

I return to the question of monitoring. In a television programme, "File on 4"—again, this would have been well known to my noble and learned friend's department because featured on it was Mr. Hoon, his right-hand man in the Commons—Mr. Hoon observed—I quote from page 11 of the transcript: There was a specific piece of academic research conducted by the PSI into a number of cases, by no means the total, but which concluded that there were no substantial difficulties about the way that the scheme worked and indeed which encouraged us to consider extending conditional fees". There is no indication in that statement that those carrying out the research had any form of reservation or anxiety. That was, in my respectful submission, a classical "spin".

Fortunately, the lady who carried out the research, Miss Yarrow, was also on the programme and, having heard what Mr. Hoon had said, she said: We're concerned that solicitors may not be calculating accurately the risk of success of the case, and it's on that calculation that the whole success fee is based. They seem to be saying that cases are a higher risk than they actually are, and that then means that the client is going to pay more. I think the issues about the way the success fee is calculated have not really been resolved, and more attention needs to be given to this before such a drastic action is taken". That was a reference to replacing legal aid. She then said: And so far we haven't seen any signs from the Lord Chancellor's department that they are addressing this issue. Instead they've tended to concentrate on the positive aspects of our findings". I referred to those earlier.

On 18th February, I tabled a Written Question in these terms, to ask Her Majesty's Government: Whether, since the publication in September 1997 by the Policy Studies Institute of its report, The Price of Success, they have carried out or caused to be carried out any research to determine whether the practice of conditional fees is working; and if not why not".

Back came the answer, signed by the Lord Chancellor: In the five months since the Policy Studies Institute report was published. I have not commissioned further research on the practice of conditional fees. As the noble and learned Lord will know, the Policy Studies Institute report concluded that many of the potential problems identified with conditional fees before they were introduced appear to have been successfully addressed. I accept that further research, at the appropriate time, may be necessary and I plan to seek views on what further research might prove useful in the consultation paper that I plan to issue shortly".—[Official Report, 18/2/98; col. WA 49.] That brings me to a comment made in the paper entitled Access to Justice with Conditional Fees, issued by the National Consumer Council in April 1988, in which it makes the sensible observation: Without knowing the answers to key questions"— those are the questions about what has happened in the CFA agreements, which have been the subject matter of this very inadequate monitoring— it is impossible for us—or anybody else—to make an informed judgment about how well conditional fees are working and therefore whether they are a suitable alternative to legal aid for personal injury claims. At the very least, the LCD should begin immediately to monitor how CFAs are working in personal injury cases. It will be essential to follow selected cases through from beginning to end and therefore monitoring should begin as soon as possible". It is the absence of the monitoring which has emboldened me to suggest that there should be the capping of the proceeds of the court action so that no more than 25 per cent. of the damages which are recovered can be taken by the solicitor. A hundred per cent can produce large sums and there may not be an equivalent sum recovered in court; or there may be a judgment for such a sum but it is reduced because of a finding of contributory negligence.

I have come to your Lordships' House with more than that thin veneer of confidence which I occasionally manage to simulate. I achieve this by going back to the debate on conditional fees in June 1995 to which I made reference. There I find the following observations of my noble and learned friend the Lord Chancellor (he being but a shadow in those days): The next question is whether the noble and learned Lord, if he is insistent on retaining a maximum of 100 per cent., should be imposing a statutory cap on the uplift of, say, 20 to 25 per cent. of the damages recovered. I regard such a cap as an essential protection for the consumer of legal services. Particularly in cases where the damages are low and the fees high, it would be possible to win but to have to pay out literally all the damages recovered in legal costs plus success fee. That would be litigation which would in practice have been conducted—this is how the public would see it—for the benefit of the lawyers alone. The Law Society itself sees the merit of such a cap because it will be recommending to its members a cap of 25 per cent. of the damages recovered. The noble and learned Lord"— that is a reference to the Lord Chancellor— should himself be imposing a 25 per cent. cap as the only sure means of protecting the consumer".—[Official Report, 12/6/95; col. 1554.]

One understands that from time to time one wears a different wig or hat and that may condition one's views on policy. But what startles me is that my noble and learned friend has changed his view on the law, and that should not be the result of changing status.

I go back to the words of my noble and learned friend in the same column: I, however, for my part, do not agree that Section 58 of the Act does no more than permit the noble and learned Lord the Lord Chancellor to prescribe the level of uplift and so does not permit, or impliedly preclude, a cap being imposed on the amount of the uplift. There is no bar, in my view, on his prescribing such a cap. The issue is whether he should do so".

Before my noble and learned friend addressed the House I set out in detail why the Lord Chancellor had the power and how the chairman of his own advisory committee, the noble and learned Lord, Lord Steyn, had firmly disagreed with the Lord Chancellor, as had my Law Lord colleagues in this House when I informally asked their views. I shall be interested to hear how my noble and learned friend justifies this forensic volte face.

Accordingly, I move my Motion. I have been at some pains to deal with the absence of monitoring because I, and I believe others, wish to have an assurance from the Lord Chancellor that he will now institute the necessary detailed monitoring in order to satisfy us that this strange creature, as the former Lord Chief Justice Lord Taylor described the conditional fee, is working fairly. I beg to move.

8.5 p.m.

Lord Hunt of Wirral

My Lords, I support the order and welcome the opportunity to say a few words about conditional fee agreements. I strongly support the words of the noble and learned Lord the Lord Chancellor in opening the debate. He spoke of the need to improve access to justice. That is a wholly laudable aim with which I am sure everyone participating in the debate agrees. I also strongly support the words he has uttered on other occasions about the need to modernise the whole system of justice.

Justice is often far too expensive and inaccessible. We must take steps to remove the obstacles. That is why I have always viewed conditional fee agreements as part of the picture, not the whole picture.

I speak as one who has specialised in defendant litigation for some 30 years. Although I started life as a solicitor for the Transport and General Workers' Union, it took me 10 years to learn the error of my ways. For the past 20 years I have acted only for defendants. The reason I see conditional fee agreements opening access to justice is that, notwithstanding the legal aid scheme, there is a gap.

I wish to make four brief points. First, conditional fee agreements must be only part of the picture. There are other ways to improve access to justice, for example, legal expenses insurance. I greatly welcome the comments of the noble and learned Lord the Lord Chancellor about new products. Insurance companies will come forward with new products, and legal expenses insurance is another example of the innovative nature of insurers in meeting market demand. But as a former Minister I see the heavy hand of the Treasury behind this whole scheme and greatly regret any hint that conditional fee agreements will take the place of a wide range of legal aid opportunities that presently allows access to justice.

I am very nervous about suddenly moving to this new system before it is tried and tested. I can understand the urge to move ahead swiftly but I share many of the reservations expressed by the noble and learned Lord, Lord Ackner. I have enormous respect for the noble and learned Lord, mainly because the decisions that he has handed down to me and my firm have always been favourable. I do not seek to court support. However, I must inform him that once again he has encompassed in his remarks many of the reservations that extend far and wide in the legal profession about the new method of conditional fee agreements. It is so important that we get it right, but it is only one of the opportunities to open up access to justice.

Secondly, a good deal of research still needs to be done. The noble and learned Lord, Lord Ackner, made that very point. I have spent some time studying the research already conducted. The report of the Policy Studies Institute, published as recently as last September by Stella Yarrow, sets out several of the reservations that have been expressed. It states: However, there is also evidence which casts some doubt over the way in which risk is assessed and the uplift calculated. Particularly if conditional fees are to be extended to other areas of civil litigation, these problem areas need to be addressed. This survey has simply given an indication that there seems to be a problem with these two fundamental aspects of the scheme … Any plans to extend conditional fees … need to take into account that there are many unanswered questions". I hope that the noble and learned Lord the Lord Chancellor will take every opportunity to extend the monitoring and research that is taking place into conditional fee agreements.

My third point, which I make as a member of FOIL, the Forum of Insurance Lawyers, is about his indication that he might well be minded to introduce primary legislation at a future stage to allow the success fee and insurance premium to be payable by the defendant. Surely in CFAs this removes from the plaintiff and his solicitor the risk that they are being asked to bear, which risk sharing has always underpinned the concept of CFAs. The defendant is being asked to pay for those cases he has won through a levy on the cases he has lost. It is as simple as that. Surely access to justice requires fairness on both sides of the equation.

FOIL has made a very strong case. Surely if we are to have a system of no fault compensation for plaintiffs we ought to debate that proposal, just as we did following the Pearson Conunission in the 1970s. I am troubled. Christopher Hodges was troubled in the New Law Journal when he said: Is it really right that virtually all risk should be removed from a plaintiff in litigation? The defendant stands to pay out far more than he or she does currently. I hope that the noble and learned Lord the Lord Chancellor will listen carefully to the evidence of FOIL.

My fourth and last point is merely to say that there have been a number of developments in the past 12 months which have greatly increased the cost of litigation, not only to insurance companies but to health authorities, the Government and other defendants. We had the retrospective effect of the changes to the Compensation Recovery Unit last October; we had the decision last week in this House in Wells v. Wells, all hugely increasing the cost of claims. The noble and learned Lord the Lord Chancellor has power to rectify the unjust consequences of Wells v. Wells by laying an order under Section 1 of the Damages Act 1996, which no doubt we will be able to discuss in another debate. To include in this a provision that the costs of the action, including the additional success fee and the insurance premium will now have to be borne by the defendant does seem to weight the scales of justice unfairly.

I have enormous sympathy with the amendment of the noble and learned Lord, Lord Ackner. However, I am a spectator in a much more serious battle of legal opinions and I await the views of the noble and learned Lord the Lord Chancellor. Notwithstanding all that I have said, I strongly accept the principle of conditional fee agreements.

8.14 p.m.

Baroness Oppenheim-Barnes

My Lords, your Lordships will be relieved to hear that I intend to intervene very briefly, overwhelmed as I am by the legal expertise which surrounds me. The noble and learned Lord the Lord Chancellor knows that I am second to none in my admiration for him, for his courage and the way in which he has pressed on with reforms which are overdue and very badly needed.

Having said that, I pay great attention to the fact that he made the point that the amendment in the name of the noble and learned Lord, Lord Ackner, would be ultra vires. We shall have to see to what extent this will govern any decision. I was originally seduced by the amendment in the name of the noble and learned Lord, Lord Ackner, because it seemed so simple. Certainly he very kindly quoted from the National Consumer Council report Access to Justice which was published at the time when I was its chairman.

Many of the fears which have been quoted have been somewhat overdone. There is always a fear of the unknown. At the same time, quite legitimately, as my noble friend Lord Hunt of Wirral, and the noble and learned Lord, Lord Ackner, have said, people are apprehensive when they are faced with something and they do not know how it will work. It is important that the noble and learned Lord the Lord Chancellor tells us what are his views about the future monitoring of the scheme when it is expanded to the extent that it will be, in a welcome way, by this order.

I suspect that the noble and learned Lord is not keen on conditional fees. I get that feeling from what he has said, but it is mere suspicion. I see a number of difficulties. There will be difficulties; there will be hiccups; there will be all sorts of cases coming up where people will point and say, "There you are. Woe is us. We told you it would happen". I am sure that the noble and learned Lord the Lord Chancellor will want to protect his flank to ensure that people are satisfied that adequate monitoring is taking place.

A point that has not yet been raised—I might be wrong—is that very often those who would benefit from being able to bring a conditional case will have to find lawyers who will also think it is going to benefit them. Insurance or no insurance, they are certainly not going to want to take on that sort of case. Will they ever want to take on a case under those circumstances where the other side is being represented by legal aid? Where will they go for their damages if they win their case? That poses a certain restriction.

I have great sympathy with the points that the noble and learned Lord, Lord Ackner, made about the capping of the fees. I can see where the problem arises in relation to the original Act. There is a structure within Section 58 which is said to provide for a determination with regard to the fees, which should not allow a fee of 100 per cent. to be more than that which would be obtained in the damages. That is the point that is being made.

I hope that the noble and learned Lord the Lord Chancellor will be able to reassure us in relation to monitoring. After all, this is new to practically everyone in the legal world. I hope that he will also be able to give an assurance to the noble and learned Lord, Lord Ackner, with regard to the points that he has raised about the limitation of fees.

8.18 p.m.

Lord Hacking

My Lords, in this my first speech from these Benches, I am delighted to support my noble and learned friend—as I am pleased now to be able to address him—for the order that he has put before the House. I support him for the principal reason that he gave to the House, the great need for increase in access to justice. I also support him because, in the three years of their operation, the evidence from the Law Society is that the conditional fee arrangements are, on the whole, working well. I am told by the Law Society that there have been approximately 40,000 cases to date which have used the Society's Accident Line Protect insurance scheme.

I am also told by the Law Society that the fears of the automatic doubling of fees have not been realised. Your Lordships have heard from my noble and learned friend that the evidence is that fees have gone up by an average of no more than 50 per cent. The noble and learned Lord, Lord Ackner, gave a lower percentage of 43 per cent. I am therefore happy to agree that the time has come to expand this scheme.

The noble and learned Lord, Lord Ackner, opposes the scheme and seeks to put an amendment to it. I disagree with the noble and learned Lord for a number of reasons. First, there is a voluntary scheme already in place set up by the Law Society. In my submission, it is better to leave it as a voluntary scheme. Secondly, from my reading of the Act, there is no power for the Lord Chancellor to set up a cap based upon percentage of damages.

Although the noble and learned Lord, Lord Ackner, goaded my noble and learned friend the Lord Chancellor on views that he expressed in a debate in your Lordships' House on 12th June, the noble and learned Lord, Lord Ackner, did not address your Lordships on the basis of his submission that there is a power under the Act. If he examines Section 58(2) and (5) he will not find there a power in the Lord Chancellor to bring—

Lord Ackner

My Lords, I am not sure whether I am being criticised for not replying in some detail to the point about ultra vires in this debate or in the previous debate. In the previous debate, on 12th June 1995, it is set out in considerable detail. I propose to refer to that when I come to reply.

Lord Hacking

My Lords, I leave it there. Under Section 58(2), the conditional fee arrangement is set as a percentage uplift of the amount of the lawyer's fees. If we look at Section 58(5) there is a reference to the same percentage. That percentage is only the percentage, and can only be construed as the percentage, of the uplift of the lawyers' fees.

Even if there were the power to make the order in the form that the noble and learned Lord urges, the linking of lawyers' fees to the amount of damages is moving us towards a contingency fee system which is undesirable. I agree with the views expressed by the noble and learned Lord the Lord Chancellor which were the views that he also expressed in another place before the Home Affairs Select Committee last October. His noble and learned predecessor put it well in the earlier debate in your Lordships' House on 1st November 1994, when he said: It is not easy to suggest a particular cap as being justified by way of general regulation even if I had the power to do so. After all, in the case of a quadriplegic, for example, a cap might allow a huge uplift but in smaller cases it might not. I regard as very important the principle which underlies Section 58: that it is related to the work done. The work that the lawyer does should be basis upon which he or she is paid and not the amount of damages".—[Official Report, 1/11/94; col. 808.] It is impossible to see how the capping system could work in practice; for example, with a defendant or in the case of a structured settlement where moneys are paid by instalment over a period of time. There are practical and legal difficulties facing the noble and learned Lord's amendment. In those circumstances I hope that he will withdraw it.

8.23 p.m.

Lord Thomas of Gresford

My Lords, like motherhood and apple pie, all noble Lords, and certainly all lawyers, will be in favour of the proposition that access to justice should be increased. The issue is whether the conditional fee agreement should be the only route. The noble and learned Lord the Lord Chancellor said that the order is strongly supported by the Law Society. So it is. But conditional fee agreements are supported by the Law Society only as an alternative, and not in substitution for legal aid. I am with the noble Lord, Lord Hunt of Wirral, who said that there should be other routes of access to justice than that proposed by the Government. What one fears by the order is that the Government are closing down those routes and directing everyone into one flow of traffic.

I note that the noble and learned Lord the Lord Chancellor is still against contingency fees. In his evidence to the Home Affairs Select Committee in 1997 he described them as: The most eloquent criticism of contingency fees is that by giving the lawyers a significant slice of the action they run the risk of polluting the fountain of justice at the source. The lawyers have too great an interest in the outcome". The curious thing is that since the noble and learned Lord the Lord Chancellor said those words the Court of Appeal in the Thai Trading case decided that it is possible for contingency fees to be charged. I declare an interest in that I have settled a petition to your Lordships' House in relation to that case, challenging that decision.

The Legal Action Group which exists for the purpose of promoting equal access to justice, and which has some 8,000 members from the legal profession—solicitors and barristers who are engaged in litigation— said about conditional fees: The experience of practitioners operating conditional fees in the personal injury field is that the voluntary 25 per cent. of damages capped on the amount of the success fee comes into play in most cases so that in effect a contingency fee of 25 per cent. is currently being charged". Your Lordships will appreciate that if that cap is reached in every case, it becomes a contingency fee. The interest of the lawyer in settling the case below its value, or perhaps in interfering with the way in which that case is presented to the court, is in conflict with the interests of his client.

The order is now to extend the system to all proceedings. While the uplift is limited—the limitation has grown as the noble and learned Lord, Lord Ackner, said from 5 per cent. to 20 per cent. and now to 100 per cent. uplift on the success fee—the noble and learned Lord the Lord Chancellor is not prepared to extend it to a cap as a percentage of the damages. I wait to hear what the noble and learned Lord the Lord Chancellor says in answer to the point raised by the noble and learned Lord, Lord Ackner, that he appears to have given conflicting views to the House on this issue as to whether it is ultra vires.

In an earlier debate on this subject I urged the noble and learned Lord the Lord Chancellor to hasten slowly—festina lente. No one doubts his courage in pressing on with reforms, as the noble Baroness, Lady Oppenheim-Barnes, said. But it is an area which should await primary legislation and debate. Reforms in this field should not be introduced piecemeal.

Primary legislation is required for a number of reasons. First, the criticism of the Joint Committee on Statutory Instruments, and its reservations that this is an unexpected use of powers under Section 58 of the 1990 Act, should not be lightly dismissed. It is forcing the language to say that all proceedings can now be brought under that head.

That is not such an important matter as others. The proposals to alter the legal aid system have, as I understand it, been delayed until primary legislation can be brought into effect. I should have thought that it would have been sensible for all the matters concerning access to justice to be dealt with in a single Act, covering those fields.

The noble and learned Lord the Lord Chancellor, encouragingly said to your Lordships tonight that it is reasonable to make the uplift and the success fee payable by the defendant, but your Lordships have heard the strong reservations that the noble Lord, Lord Hunt of Wirral, expressed on behalf of the defence side of litigation. The matter is not absolutely straightforward; it should be debated. The various interests should be balanced because there is a public interest on both sides: from the insurance premium payer to the injured litigant. It is not a matter, I respectfully suggest, that can be dealt with lightly.

However, the most important reason why there should be a delay—a hasten slowly to bring in this scheme—is that, as noble Lords have said, there has been limited research in this field. There has been no research as to whether solicitors overestimate the risk in order to justify an excessive uplift of the fees. There may be a doubling of fees now that 100 per cent. uplift is permitted. But the solicitor who is charging the fees, who determines that uplift, has to justify that uplift, assessing the risk himself. Is he doing it properly?

The effect upon the lay clients has not been surveyed. There has been no research into whether clients feel they have had a fair deal as a result of conditional fee agreements. There may have been 40,000 cases, but how many of those have gone to court? How many of them have been successfully completed to the satisfaction of the client? We simply do not know. There is a lack of monitoring of the services available at present in personal injury cases from the insurance industry. It may take four or five years to judge the success of the insurance cover that is provided to the client and from the point of view of the insurance company. If we are now to have conditional fee agreements extended to all other proceedings, it will take a long time to work out the level of premiums that insurance companies will charge and in what type of case. Will those premiums be acceptable to the lay client? Will it be affordable litigation for him?

The answer to those questions—the protection for the consumer—lies in awaiting a comprehensive Bill, primary legislation, which could contain important safeguards. For example, if a solicitor enters into a conditional fee agreement with his client, at present that is entirely between him and his client. The degree of uplift is simply not known. Is it fair and appropriate? Whether the solicitor has assessed the risk properly is not clearly made out to the courts or to the public. A proper proposal for a Bill might be that a conditional fee agreement should be filed in court and be open for inspection by the court as the mitigation is commenced, so that the court can consider, should any problem arise, whether a proper risk has been assessed and whether the uplift charged is appropriate in the particular case.

Secondly, a provision could be made in primary legislation that the solicitor should make a file note of his risk assessment when he first sees the client and considers the problem placed before him. If the proposal that the noble and learned Lord the Lord Chancellor puts forward tonight comes into effect, and I support it—namely, that the uplift and the insurance premium be paid by an unsuccessful defendant—the defendant will want to have his say as to whether the uplift charged has been properly charged, and whether the risk that has been assessed and the insurance premium paid for that assessment, which will fall upon the defendant at the end of the day, was a fair and proper assessment in the first place.

Primary legislation could consider whether the Office for Supervision of Solicitors should have power to investigate the possibilities of malpractice that might arise in a delicate situation where, as the scheme is presently framed, the solicitor has an interest in the outcome of the proceedings.

To those of us who are trained as lawyers, there is something fundamentally wrong in the concept that lawyers should have an interest in the outcome. But if we are to accept that times have moved on, and that there is some advantage to be gained through having a personal stake in proceedings, then at least it should be possible for what the solicitor does to be investigated and for him to be before the Office for Supervision of Solicitors if he does something inappropriate.

I support the amendment of the noble and learned Lord, Lord Ackner. In the last case in which I appeared before the noble and learned Lord in which he gave the lead judgment, I was completely unsuccessful. But I have to tell your Lordships that the other side was completely unsuccessful; and their Lordships took their own view of the case we had presented to them. Neither side won at the end of the day. So I do not have the problems of the noble Lord, Lord Hunt, in supporting the noble and learned Lord, Lord Ackner, in his amendment.

With those comments, I invite your Lordships to accept the amendment that has been moved.

8.36 p.m.

Lord Kingsland

My Lords, so apposite and incisive have been the contributions of noble Lords and noble and learned Lords in this evening's debate that I hardly need do more than bang the drum in admiration.

As the noble and learned Lord, Lord Ackner, reminded the House, the notion that a lawyer should have a financial interest in the outcome of a case is wholly repugnant to our legal tradition, and has been for the past 700 years. Indeed, one of the ornaments of our constitution, with few exceptions, has been the incorruptibility of our legal profession. The introduction of contingency fees for civil matters on such a wide range can be justified only if it brings with it substantial benefits. In my submission, it is for the noble and learned Lord the Lord Chancellor to establish to your Lordships' satisfaction that these benefits are made out.

In that context I have three questions to put to the noble and learned Lord. First, does he believe that there is already hard evidence that the measures he proposes will substantially improve the access to justice of that category of persons he identified in his opening remarks—essentially the middle classes? Secondly, is he confident that the insurance industry is now ready with the right product at the right price on the right timescale to deliver the system that will meet his access to justice objectives? Thirdly, can he be sure that the new temptations that will be presented to the legal profession will be resisted? I shall briefly consider each of those questions.

On the question of access to justice, as short a time ago as 1995, in a document published by the Labour Party called Access to Justice, we read: We regard conditional fees as an experiment to be monitored closely and in the light of the Scottish experience do not expect their introduction to make a significant improvement to access to justice. They are at present little more than a gimmick designed to mask the chaotic state of the legal aid scheme and the Court Service". Noble Lords have heard the exegesis by the noble and learned Lord, Lord Ackner, on the one study that has been made on CFAs, and relating only to CFAs in the context of personal injuries cases. Your Lordships will be aware that the conclusions of the report were couched much more in terms of questions than answers. Are solicitors being too conservative about risks and asking for too high an uplift? What percentage of damages are really being paid disguised as fees? What effect will CFAs have on the inclination to issue proceedings? There are many more questions besides those.

We do not even know the answers to those questions in the context of personal injuries, yet now we are seeking to expand the system to all civil litigation. There is no comparable set of surveys in any other country to give us help.

If your Lordships were the Medicines Committee deciding whether to grant a licence to a new drug, would you really grant a licence on the basis of the evidence in front of you tonight in relation to contingency fees? I believe I know what your Lordships' answer would be.

The second question that I wish to address briefly is that of insurance. I turn to the statement made by the noble and learned Lord the Lord Chancellor, this time in the House of Lords Debate on 9th December 1997, when he stated: The insurance industry is competitive. It is already developing the products that will be needed, including products where there would be no up-front costs and where lawyers could protect themselves from an unlucky run of losing cases by `stop-loss' insurance". The noble and learned Lord then went on to say: The innovative capacity of the industry to match insurance cover to need should not be doubted. The industry has told me that it expects to move sufficiently quickly to develop and launch new products so as to have them available by the time the changes that I propose to conditional fees and legal aid are made".—[Official Report, 9/12/97; col. 45.] We are now on the threshold of those changes. The noble and learned Lord has said a little more tonight about what he thinks the insurance industry might deliver. But we still do not know what the costs are and, above all, we still do not know when the insurance industry will be able to deliver. Until we know the answers to those questions it would, in my submission, be extremely dangerous to take the matter further.

The final set of questions relates to the legal profession itself. I described our legal tradition as one, I am happy to say, of incorruptibility. But there is no doubt that the onset of these CFAs will present new temptations for the legal profession. There will be temptations not to reveal documents which ought to be revealed. There will be temptations to say things to witnesses which ought not to be said. There will be temptations not to disclose things to judges which ought to be disclosed. How are we to be sure that the profession will not be tempted? With respect, I believe that the noble and learned Lord ought to be thinking about, for example, setting down careful and detailed rules about the contents of CFAs; about whether to institute a system whereby in High Court litigation Masters have to review on a regular and spot-check basis a percentage of these agreements; the kind of instructions that ought to be given to taxing masters; and in what circumstances the agreements ought to be subject to compulsory taxation.

Until we have the answers to those questions, it is my submission that it would be unsafe for your Lordships to allow these matters to proceed. The thing that worries me most of all about the noble and learned Lord's approach is the suggestion that somehow the legal profession ought to behave more like businessmen. Indeed, in a previous debate I heard the noble and learned Lord, Lord Hoffmann, subscribe to that proposition. I have to say to your Lordships in all frankness that I do not subscribe to it. The right parallel for our profession is not business, it is the medical profession. I believe that if the noble and learned Lord keeps that in mind he is likely to find his way through the deep undergrowth that lies ahead of him with a great deal more success.

8.45 p.m.

The Lord Chancellor

My Lords, at this hour I shall not address your Lordships at great length, but I shall endeavour to cover the salient points. The noble and learned Lord, Lord Ackner, acknowledges that he is hostile to speculative litigation and that he regards proceedings under conditional fee agreements as speculative litigation. But I have to say he is fighting the battles of long ago, as he himself acknowledged when he said that all this was water under the bridge.

I submit that conditional fee agreements have been proved to work in the personal injuries field. In our extensive consultation, they have been virtually unanimously supported by our consultees. I submit that it is self-evident that they enhance access to justice. It is well known that only the very poor and the very rich can afford to litigate in this country because the risks of losing are too great. Middle England in Britain is left out in the cold and conditional fee agreements will bring it access to justice.

The Law Society supports the extension. So, too, do the National Consumer Council, the Consumers' Association, NACAB, the TUC, many trade unions, Victim Support and other bodies.

Legal aid is not to be removed pro tern. What I am proposing by the order is the extension of availability of conditional fee agreements—therefore, the freedom of the consumer and the potential plaintiff to use them—to the whole field, and removing nothing from legal aid. We are extending opportunities to people without removing any legal aid benefits.

I have indicated that when legislative opportunity arises I propose to make the success fee recoverable from the unsuccessful defendant. Despite the general reservations of the noble Lord, Lord Thomas of Gresford, I note that I had his support in that proposal. Perhaps I may reassure him that if the uplift is thought to be excessive it could be reduced for the benefit of the defendant via the unsuccessful defendant liable to pay it by an officer of the court, a taxing master, to a fair level. But I regard the recovery of the success fee as the answer to the point that uplifts are bad because they are at the expense of plaintiffs whose damages would otherwise be diminished.

I was gratified to learn that the noble Lord, Lord Hunt, favours conditional fees in principle, but he had particular concerns. Nothing that I say is intended to discourage individuals in their own interests from taking out before the event insurance. Of course that would be in their interests. Where I part company from him, however, is where he says that on the plaintiff's side no risk is run if the success fee can be recovered from the unsuccessful defendant in the event that the plaintiff wins. Of course the risk assumed by the plaintiff's solicitor and not the plaintiff himself, and which he continues to run if he loses, is that he recovers no fee. He has done a lot of work for nothing. That is what will ensure that only strong cases go forward. Indeed, it is only strong cases that should go forward. But where a strong case is won, I see no reason why a defendant should not in justice pay the success fee which the plaintiff has had to incur in order to establish a just liability against the defendant.

In the consultation process we are considering much of what has been said about the need for monitoring, and we are giving active thought to it. Meanwhile, we are giving people an opportunity to bring proceedings under conditional fee agreements, extended very widely, if they choose. Monitoring could be achieved either by establishing a monitoring system in agreement with the profession or by commissioning research, which includes consideration of the fairness of uplifts. Essentially, we would seek to establish whether the success fees were commensurate with the risk in much the same way as insurance premiums are intended to reflect the risk to the subject of the cover. However, if we make the success fee recoverable—and I have not concealed that I am minded so to proceed—then the protection for the unsuccessful defendant would lie in the taxation process.

The noble and learned Lord, Lord Ackner, reminded the House of a view that I expressed on a previous occasion. I have considered Section 58 of the statute most carefully and I am now of the view that there is no power under Section 58(3) to (5), for the reasons that my noble friend Lord Hacking conveniently summarised, to impose a statutory cap on the damages. I noted—as did my noble friend Lord Hacking—that the noble and learned Lord did not meet the specific reasons that I gave in support of the view that I now have of the ambit of Section 58.

However, even if I were wrong in that respect and I did have the power—and I do not doubt that the noble and learned Lord, Lord Ackner, will tell me that my first thoughts are always right, however long ago they were expressed, provided that they accord with his current thoughts—I would not be minded to exercise it because I consider that the way through is to make the success fee recoverable from the unsuccessful defendant, so the argument that the plaintiff's damages are diminished by uplifts goes. I think it right in principle that unsuccessful defendants should pay all the costs that the plaintiffs have to incur in order to establish a defendant's liability. For all those reasons, I urge the noble and learned Lord not to press his amendment and indeed to withdraw it.

8.52 p.m.

Lord Ackner

My Lords, I accept that there are many things that I do badly and one of them is to dissemble. I do not hesitate in admitting to my dislike of conditional fees. Indeed, that is certainly the view of the majority of the judiciary. However, to suggest that I am fighting battles long ago when all I do is produce an amendment to the order proposed by my noble and learned friend—in terms that he himself had enthusiastically approved some three years ago—seems to me a little unkind as a suggestion.

My amendment is not a wrecking one. It has the support of the Law Society—

Lord Hacking

My Lords, I should point out to the noble and learned Lord that that is not correct.

Lord Ackner

In that case, my Lords, perhaps I may read out what the brief says: The Society recommended the voluntary cap on damages received but does not disagree in principle that there should be a mandatory cap on the success fee". Perhaps the noble Lord has not read that brief. Further, the Legal Action Group says: Any general extension of conditional fees should be accompanied by a clear commitment by the government to keep their operation under review and to commission further research into the impact of conditional fees. In addition, the voluntary cap on the success fee of 25 per cent of damages should become statutory". I do not know whether the group and the Law Society are also to be accused of fighting battles long ago.

Perhaps I may now deal with a few further matters. I begin with the vires of the Lord Chancellor. I am blamed for not immediately replying to an attack on the vires when, three years ago, the noble and learned Lord, in terms, contradicted his predecessor and said that it was well within his predecessor's power. It was because that was based on a forensic issue, where I assume that change in status does not mean a change in law, that I did not come complete with the full argument this evening. However, as my noble and learned friend the Lord Chancellor has himself given the barest of detail to support his proposition, I should point out that, in the debate on 12th June 1995 on conditional fees (at col. 1551 of Hansard), I said: Your Lordships may remember that in the debate on 1st November my noble and learned friend the Lord Chancellor took the point that he is taking today; namely, that he has no power to make the provision to cap. I respectfully submitted that I and a number of my judicial colleagues with whom I informally discussed the matter did not accept that view. I drew attention inter alia to his wide regulation making power in Section 120(3) of the Act which provides: 'Any such regulations … may contain such incidental, supplemental … provisions or savings as the person making the regulations … considers expedient'. In his letter of 24th March 1995 my noble and learned friend Lord Steyn"— he was the chairman of the Lord Chancellor's advisory committee— informed the Lord Chancellor that the committee did not agree that he had no power to impose such a limit or that to do so would be to attempt to modify his power to set a maximum increase in fees. My noble and learned friend gave his reasons in detail. They were as follows: 'The committee finds that in the Act no expressed or implied restriction on that power such as to prevent its exercise in order to limit the proportion of damages payable to the legal advisers. The Committee recalls your substitution of the words "requirements" for "information" in an earlier draft of the provision at the Committee stage in the House of Lords. You then explained that "requirements" included, and went further than "information" so as to include, for example, the power to prescribe how conditional fee agreements should define success in the action. The Committee does not agree that a limit on the proportion of damages would modify your power to set a maximum uplift. Permission to increase a fee is logically distinct from any limit on the proportion of a particular source from which that increase may be satisfied. Moreover, the argument has no reasonable limit; it could presumably be said to apply even to your own example of a prescription of the way success in the action is to be defined. Such a definition would undoubtedly affect the amount of fees the legal adviser could recover"'. Those were the submissions that I hoped the noble and learned Lord the Lord Chancellor would meet if he were going to withdraw his previous concurrence of what is there set out. But it is of no great consequence because, as the noble Lord, Lord Hooson, said in the earlier debate, If the Lord Chancellor does not have the power, for Heaven's sake he should seek it". He added, I do not believe that there would be any impediment either in this House or the other place in obtaining power". With respect, I do not look upon this as a serious answer to the amendment I have suggested.

I deal now with the contingency fee point. The Green Paper from which the conditional fee agreements have come was itself headed "contingency fees". A conditional fee is a contingency fee; the contingency being the success or failure. Without the capping mechanism, the conditional fee can produce a situation which is far more lethal than the American system which is attacked. Under the American system, you cannot obtain more than 40 per cent. of the proceeds of success, but under the conditional fees without a cap you could burn up the entirety of the amount you succeed in recovering by doubling the fees. In fact, the then Lord Chancellor agreed that this was such a case.

I have few other points to make. The noble Lord, Lord Hacking, says that the cap raises problems with regard to a defendant. It raises no such problem at all. It has no relevance to the position of a defendant because, unless he is counter-claiming, there is no fund that he is recovering, and nothing to be the subject matter of a cap. As regards structured settlements, it is not difficult to make an exception in that particular case.

Finally, I deal with the point about the uplift and the insurance to be payable by the unsuccessful defendant. I cannot find any principle upon which this can be justified. If a plaintiff is short of funds and takes up a big loan to bring his ex hypothesi successful action, can he charge the unsuccessful defendant with the interest he has to pay on that loan? That is certainly not the case on any principle of which I am aware, but the situation is comparable. The person who takes out the conditional fee and the insurance is supporting his action in that way.

The noble and learned Lord the Lord Chancellor has given no assurance—although we have requested it—that there will be any immediate research or monitoring of what is taking place. Yet this order is to move conditional fees right across the civil litigation board, a matter which many of those who have spoken say is unsafe. In that situation I think I would be lacking in responsibility, having raised the point, in not asking for the views of the House.

The Lord Chancellor

My Lords, the original Motion was, That the draft order laid before the House on 16th July be approved, since when an amendment to the Motion has been moved to leave out from ("That") to the end and insert ("this House calls on Her Majesty's Government to withdraw the draft Conditional Fee Agreements Order 1998 and re-lay it in amended form so that the maximum amount payable under a conditional fee agreement expressed in percentage terms in relation to the amount of any sums which may be recovered shall not exceed 25 per cent."). The Question is, That this amendment be agreed to.

9.4 p.m.

On Question, Whether the amendment shall be agreed to?

Their Lordships divided: Contents, 24; Not-Contents, 55.

Division No. 3
CONTENTS
Ackner, L. [Teller.]	Mar and Kellie, E.
Addington, L.	Meston, L.
Carlisle, E.	Minto, E.
Clement-Jones, L.	Renton, L.
Craigavon, V.	Selkirk of Douglas, L.
Darcy de Knayth, B.	Stair, E.
Greenway, L.	Steel of Aikwood, L.
Hooson, L.	Thomas of Gresford, L. [Teller.]
Hunt of Wirral, L.	Thomson of Monifieth, L.
Linklater of Butterstone, B.	Thurso, V.
Mackie of Benshie, L.	Tope, L.
Maddock, B.	Wise, L.

NOT-CONTENTS
Alli, L.	Haskel, L.
Archer of Sandwell, L.	Hayman, B.
Bassam of Brighton, L.	Hilton of Eggardon, B.
Blackstone, B.	Hoyle, L.
Borrie, L.	Hughes of Woodside, L.
Carmichael of Kelvingrove, L.	Hunt of Kings Heath, L.
Carter, L. [Teller.]	Irvine of Lairg, L. [Lord Chancellor.]
Chandos, V.
Cocks of Hartcliffe, L.	Jay of Paddington, B.
Currie of Marylebone, L.	Judd, L.
David, B.	McIntosh of Haringey, L. [Teller.]
Davies of Coity, L.
Davies of Oldham, L.	Mackenzie of Framwellgate, L.
Dean of Beswick, L.	Monkswell, L.
Desai, L.	Pitkeathley, B.
Dixon, L.	Ponsonby of Shulbrede, L.
	Puttnam, L.
Donoughue, L.	Ramsay of Cartvale, B.
Dormand of Easington, L.	Randall of Budeaux, L.
Evans of Parkside, L.	Rendell of Babergh, B.
Falconer of Thoroton, L.	Sewel, L.
Farrington of Ribbleton, B.	Simon, V.
Gordon of Strathblane, L.	Smith of Gilmorehill, B.
Graham of Edmonton, L.	Symons of Vernham Dean, B.
Grenfell, L.	Thomas of Macclesfield, L.
Hacking, L.	Turner of Camden, B.
Hanworth, V.	Watson of Invergowrie, L.
Hardie, L.	Whitty, L.
Hardy of Wath, L.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

The Lord Chancellor

The Question is that the original Motion be agreed to.

On Question, Motion agreed to.