HL Deb 06 June 2000 vol 613 cc1103-14

6.36 p.m.

The Countess of Mar

rose to ask Her Majesty's Government what is the legal aid expenditure to date, and what is the projected funding, for the multi-party actions by Gulf War veterans and sheep farmers.

The noble Countess said: My Lords, I declare an interest in that I am patron of the Gulf Veterans' Association. In addition, although I believe that I suffer the chronic effects of repeated low-level exposures to organophosphate sheep dip, I do not, and never have had, any personal interest in the ongoing litigation. Like those who have spoken to me about their concerns, I am having some difficulty in understanding what is going on. I am unhappily aware that "there is something rotten in the State of Denmark". I hope that the noble and learned Lord the Lord Chancellor will be tolerant with me and that he will be able to clarify matters.

It is with reluctance that I raise this matter in your Lordships' House tonight. I have large numbers of letters from farmers and Gulf veterans in which the writers state that they ask only for recognition and treatment for their illnesses and that future cases are prevented. It is the culture of denial that has forced them to turn to the law.

I voice the severe reservations held by members of the Gulf veterans, the sheep farming communities and others involved with these cases, about the manner in which the group actions are being managed. There are huge amounts of taxpayers' money involved in legal aid spending. I am sure that the noble and learned Lord the Lord Chancellor will agree that the legal aid moneys should be spent wisely.

I accept that this type of action is expensive. Both these actions are breaking new ground and we are dealing with the cutting edge of scientific knowledge. I understand that the Gulf veterans' case is the first multi-party action to be brought against the Crown since the repeal of Section 10 or the Crown Proceedings Act of 1947. Some of the claimants are entitled to a full legal aid certificate; others will be required to make some contribution towards their costs; and yet others will be privately funded. Claimants who are required to make monthly payments are expressing very real concerns. They have already paid sums amounting to several thousand pounds. There is no clear time span. Rumour has it that their cases may continue for as long as 20 years, although I hope that that is not the case.

Recent events, which I shall explain, have caused them to have second thoughts about continuing with their action. They now find that they are unable to get off the financial treadmill because they will still be responsible for their share of the generic costs—an unknown sum. None of these claimants could be described as wealthy. Most are men and women with young families. They are struggling to work in order to maintain a roof over their heads despite chronic ill health. They can ill afford this additional monthly burden. Not surprisingly, they are worried.

These group actions have an interesting and extraordinarily complex history. As far as I am able to ascertain, the first sheep clip case was started in 1981. Since then, at least 60 firms of solicitors, from small provincial firms through to large, City firms, have been involved with a growing number of claimants. I know of several sheep dip cases that have fallen by the wayside after large amounts of legal aid moneys have been expended, leaving claimants confused and dissatisfied with the system.

The Gulf veterans had begun their actions by late 1994. By mid-1995 the Legal Aid Board had apparently granted a generic legal aid certificate to Donn & Company, a Manchester firm, for the Gulf cases. The Legal Aid Board then asked for tenders for the generic work from firms with certificates prior to March 1995. After an hiatus, the generic certificate was awarded jointly to Dawbarns of Kings Lynn and Wolferstans of Plymouth in January 1995. Those firms were tasked with carrying out research and co-ordinating the legal process. Late in 1996, it was decided that the sheep dip and the Gulf veterans' cases would be run in tandem because of the organophosphate links. At some later stage the decision was taken to split the Gulf cases involving post-traumatic stress disorder from the remaining Gulf issues, and the PTSD generic certificate was transferred to another Manchester firm, Linder-Myers. I shall disregard the PTSD cases.

In April 1998, the Norfolk legal team working on the sheep dip and Gulf cases moved to a London firm—Hodge, Jones & Allen. The generic certificates were transferred with them. By this time, a pilot study to support scientifically and medically the claimed link between the various factors that may have caused ill health in both the sheep farmers and Gulf Veterans had been set up. There had been some inevitable delays in setting up the study—for example, funding, coordinating a group of high-powered medical and scientific specialists, and the unforeseen death of one of those specialists. Then, in March 1999, the decision was taken to concentrate all the sheep dip claims on the High Court, and Master Miller was appointed to oversee them.

We now come to the actions that have caused so much concern. By April 1999 there were rumours that the Norfolk team had left Hodge, Jones & Allen for another legal firm. These rumours were eventually confirmed. For several weeks none of the claimants knew whether the generic certificates were to remain with Hodge, Jones & Allen, whether Wolferstans was still involved, or what was happening to the individual cases. The Gulf Veterans' Association officers had contacted the Legal Aid Board as early as February to express their feelings of disquiet about the way their members' cases were being handled. Initially they dealt with the Cambridge office. At the end of April, they were, exceptionally, granted a meeting—which was originally to last for a quarter of an hour and eventually lasted three and a half hours—at the London headquarters of the Legal Aid Board. The National Gulf Veterans and Families Association was not advised of the changes officially until 9th July 1999, and the Gulf Veterans' Association was never formally advised. The secretary of the latter organisation wrote to Mr Mason at the Cambridge office of the Legal Aid Board on 13th July 1999, again expressing his concern and pointing out the shortcomings of the various courses being pursued by the solicitors and the fact that more than 250 veterans had complained about the way in which their cases were being handled. Nothing seems to have come of those representations.

I have a letter from one of the sheep farmers. He has told me that for some time it has been impossible to get any sense out of the lawyers. The whole issue was behind the "generic contract" wall. He says he found that he was being sent to an inappropriate medical coordinator, chosen by a lawyer without any reference to the expert group, and whose summary evidence was then thrown out by Master Miller. He goes on to say: It looks very much as if it was deliberately handled in a way that would maximise the lawyers' profits while minimising the chances of any case's success". The first advice to the medical and scientific specialists of the changes within Hodge, Jones & Allen was received by one of them at the beginning of July 1999. It rapidly became clear that the new legal team did not understand what it was that the specialists were supposed to be doing. Instructions were confusing and contradictory; there was a failure to grasp simple science and a failure to understand that junior solicitors had neither the mandate nor the understanding to design medical investigations. No arrangements have been made for further essential control group studies which would give authority to the medical findings.

Of enormous concern is the fact that the medical data for the sheep dip cases were sent out to individual clients' lawyers in a corrupted form. The wrong medical results were attributed to the wrong clients. Raw medical data were sent to farmers themselves, without explanation and without medical or scientific approval. Until the Legal Aid Board was asked to intervene, solicitors took upon themselves medical decisions about whether experts could contact clients' physicians. The senior partner of Hodge, Jones & Allen threatened one of the orthopaedic experts.

The next development was that Mr Peter Bright of Wolferstans was instructed to hand over all his generic and individual sheep dip cases—some 500 cases in all—to Hodge, Jones & Allen without any satisfactory explanation.

In the middle of December 1999, Mr Augustus Ullstein, the QC who had been involved with these cases for five years or so, wrote to the senior partner, Mr Patrick Allen, asking what was happening. On 23rd December, Mr Allen informed Mr Ullstein that he was reviewing the whole team, and as he did not see eye to eye with Mr Ullstein he was dismissed from the case. His replacement, Mr Stephen Irwin, QC, was, I understand, totally unfamiliar with all that had occurred previously. Thus the entire working relationship and trust between the carefully chosen experts and counsel was destroyed at the whim of one man with no scientific understanding.

Since then there has been a lack of any consultation with clients or clients' solicitors. Everyone, from individual clients through to the experts, has been in the dark about what progress is being made. Rumour has it that the plaintiffs' evidence is to be simplified and that it is now intended that the valuable scientific evidence gathered so far will not be built upon or even used. If that is the case, I understand that the claimants will be liable for the cost of the work that has been funded by legal aid, said to be £900,000.

As I said, these two group actions are totally different from any previous actions. It is significant that, unlike other successful personal injury group actions that the lawyers cite in their curricula vitae, it would be extremely difficult to take the simplified route whereby the claimant is expected to show that on a particular day at a particular place he or she was exposed to a particular hazard that resulted in a specific harm to him or her. The sheep farmers and the Gulf veterans both recognise that it is essential that the science of causation is proven. Many of those who set out in the hope that they would see justice done are now totally disillusioned. With the passage of years they have seen no progress. What hope have they?

The involvement of government in both these actions is also significant. In the case of the sheep farmers, the Government are not one of the defendants, but the farmers were required, under successive sheep dipping orders issued between 1975 and 1992, to dip their sheep in approved chemicals that included organophosphates once or twice a year. Government were responsible for licensing the products.

I should like to ask the noble and learned Lord the Lord Chancellor one or two questions. What has been the total legal aid bill for all these cases so far and what is the projected expenditure? Does he believe that the taxpayer is getting value for money for the legal aid payments that have been made, particularly in view of the recent corruption of the work of the expert group? If he does, what is it that is of value? If he does not, does he share the concerns of the Gulf veterans and the sheep farmers that I have raised today? Does he have any proposals for restoring the momentum of these actions and getting them firmly back on the rails? Would he agree to a meeting with representatives of all the parties concerned if there is anything that is obscure and which could be cleared up?

Finally, the noble and learned Lord should know that I received a letter dated 3rd May 2000 from Mr Patrick Allen of Hodge, Jones & Allen. I found the contents of this letter disturbing in that they contained at least one thinly veiled threat. I am happy that the noble and learned Lord should see this letter and come to his own conclusion.

6.48 p.m.

Lord Clement-Jones

My Lords, the noble Countess, Lady Mar, raises some important issues. In discussing the ongoing litigation, the first thing to establish is that all of us have at heart the interests of those who have been poisoned by organophosphates and those who are the victims of Gulf War illness.

I declare an interest both as a solicitor and as someone who formerly advised the Association of Personal Injury Lawyers, an association for whose members, activities, expertise and commitment I have a high regard.

Like the noble Countess, my purpose is not to address the facts of the claims against the Ministry of Defence and the manufacturers of organophosphates but to look at the conduct of the legal actions, except in so far as they are subject to confidentiality or where they are sub judice. There are in fact some 300 to 1,000 potential claimants of Gulf War illness and some 30 to 60 potential claimants of organophosphate poisoning against a number of manufacturers. The latter cases—those dealing with organophosphate claims—are much more advanced than the Gulf War cases and it is expected that those cases will come to court perhaps within the next 18 months.

In discussing these facts and the cases it is important to note that they are funded under the legal aid regime applying before the Access to Justice Act was passed. As the noble Countess pointed out, there are not many precedents for this kind of case. There are vibration white finger cases, asbestosis cases, growth hormone CJD cases, haemophiliac cases and Opren MMR but not a large number of cases. They are the only ones that readily spring to mind as past and present examples of other group actions. These group actions are extremely complicated and require great skill in execution and a very large amount of medical and scientific investigation is required.

The Lord Chancellor and his department and the Legal Services Commission are to be congratulated on setting up a special multi-party contract unit in February of last year and a panel of some 18 or so law firms deemed qualified to act in this kind of case. In fact the number of firms on the list could, if anything, be tightened. What is clear, however, is that the multi-party action unit of the Legal Services Commission exercises very close oversight over cases such as those under discussion and as the multi-party contractual arrangements make very clear.

Proposals for research or medical investigations are looked at very carefully. If complaints about the conduct of a case are received, they are heard by representatives of the commission, formerly the Legal Aid Board, and if necessary they insist on a change in representation. That certainly has happened in these cases.

The law firm involved in the present case, Hodge Jones & Allen, is known to be highly competent as a personal injury law firm. It has worked closely with the Legal Services Commission and its predecessor, the Legal Aid Board, and is one of the few firms really well qualified to prosecute multi-party actions. Throughout the two actions in question the commission and the board have agreed on the investigations to be carried out and have granted legal aid to pay for it. Whether the commission will be able to recover those costs depends on the outcome of the action and the judge's ruling on costs at the end of the case.

I shall not attempt here a detailed rebuttal of what the noble Countess, Lady Mar, said, but I can point to a number of areas where her account of matters is partial, to say the least. With regard to the relationship between the National Gulf War Veterans and Families Association and the senior partner of Hodge Jones & Allen, the senior partner of Hodge Jones & Allen addressed by invitation the annual meeting of the National Gulf War Veterans and Families Association on 25th March this year. I cannot say that that does not demonstrate a reasonably close relationship.

The Countess of Mar

My Lords, I am sorry to interrupt the noble Lord. There are two organisations. There is the National Gulf Veterans and Families Association and the Gulf Veterans Association.

Lord Clement-Jones

My Lords, I thank the noble Countess for that intervention. I am very well aware of that, but her case was that the relationship between both associations and the law firm in question was poor. As I understand it, the relationship between the Gulf War Veterans Association and the firm in question is cordial and, if anything, closer with the National Gulf Veterans and Families Association. So the law firm in question has attempted successfully to keep good contact with those associations. In terms of the change of representation in June of last year, that took place in June and was communicated in July. There was no way in which communications to the experts could have been carried out any faster. In terms of the supervision of the cases, the same senior partner of Hodge Jones & Allen has undertaken the supervision of those cases since April 1998. So the supposed break in ability to assess expert evidence is illusory. I suspect that some of the facts on which the noble Countess is relying derive from mischief-making by one of the experts. I am not going to name him, but I think it is fairly clear that that is where some of the mischief arises.

An impression is being given in this case that injustice is being done to the claimants and that poor management is taking place. From my investigation of these cases that does not appear to be the case. With regard to the allegation about the communications in this case, I have seen the regular newsletters that go out to the claimants in these cases. The organophosphates newsletters in particular are regular and very clear. They make it utterly clear where the case now stands. With regard to the allegation regarding the expertise of the counsel available, it is well known that the counsel who has now been chosen by the law firm in question is highly competent. I believe there is little to be gained by casting doubt on his expertise.

Finally, I turn to the question of the veiled threat in the letter from the senior partner—a very serious allegation to make—of the law firm in question. The paragraph to which I assume the noble Countess alludes states: I have discussed your concerns with my leading barrister. We are both very worried that a public debate about these issues will adversely affect the interests of sheep dip farmers in the litigation. Any details raised in this debate will be seized on by the defendants and used if possible to argue that legal aid should be withdrawn from the farmers". I do not believe that is a veiled threat. The noble Countess had already tabled her Unstarred Question by that point, as I understand it, or at least had indicated her intention of doing so.

I hope that to some degree I have helped to redress the balance of the facts in this case. If the facts are in dispute then clearly the Legal Services Commission will take the necessary action under its own powers. If the Lord Chancellor indicates his wish to do so, I am quite sure that the law firm in question would be only too delighted to take the Legal Services Commission through, yet again, the facts of the case and the work that it has done on the case to date.

Strangely enough, at the end of the day my concerns lie not with the conduct of the current cases or the extent of legal aid assistance granted in these cases, or indeed its cost effectiveness, but with the prospects for the future of this kind of case. The funding code by which the Legal Services Commission operates rightly emphasises the public interest as a determining factor in whether legal aid is granted in these cases. That said, however, the eligibility levels for income by which a judgment is made whether or not to fund legal aid are lower than they were for this kind of case before April this year.

The real problem, however, is the fact that the commission seems to believe that it can set hourly rates at an impossibly low level, lower than are now received under the previous regime, and expect to attract good solicitors and barristers to work in this field in the future. I ask this question: what leading counsel of the Lord Chancellor's acquaintance is prepared to work for £80 or so an hour? The skills required in these cases are considerable. Good team management, excellent budgetary control and outstanding litigation expertise are necessary. I fear that the claimant with small means in these large multi-party cases is going to be unable to get redress against the big battalions of business and government in the future. The argument of the Lord Chancellor's Department and the commission is that if these cases are successful firms will recoup their full costs. The fact is, however, that a law firm cannot afford to lose even one case of this type. After all, on winning, a firm is able to receive only its proper costs and no more than that.

As a harbinger of this I cite the recent tobacco case. It was taken on on a speculative basis and the solicitor involved, Martin Day of Leigh Day & Co, has said that the firm cannot afford to fight this type of case any more. I think that that demonstrates that at least we should have some fears for the future.

6.58 p.m.

Lord Kingsland

My Lords, unlike the noble Lord, Lord Clement-Jones, I do not have sufficient intimacy with the facts of this case to pass judgment on the submissions of the noble Countess, Lady Mar. But such is the reputation of the noble Countess in your Lordships' House for probity and for fearless advocacy on behalf of those in distress, that I know the noble and learned Lord the Lord Chancellor will be taking what she has had to say to your Lordships very seriously indeed.

Whatever the ultimate facts about the causal link between the distress in which these large numbers of people have found themselves and its alleged cause, organophosphates, there is no doubt that there are a large number of bewildered people who do not understand the legal processes into which they are, together with the public purse, pouring a great deal of money. At the end of the day, it may be that the problem turns out to be not so much one of bad advice, but rather the inability of lawyers to communicate with their clients about what they are doing on their behalf. That may prove to be a lesson for all lawyers, not only those who are Members of your Lordships' House—including myself—but those outside as well.

This type of case is extremely complex. It also has a particular characteristic in that it requires a great deal of money to be paid up front before a proper assessment can be made of the likelihood of success or failure. Although I was one of the sternest critics of the Access to Justice Bill of the noble and learned Lord the Lord Chancellor, one thing I applauded was his decision to single out for special treatment this kind of dispute.

As the noble Lord, Lord Clement-Jones, has already said, the noble and learned Lord the Lord Chancellor has set up a multi-party panel of solicitors. I believe it comprises 16—

Lord Clement-Jones

My Lords, it comprises 18 lawyers.

Lord Kingsland

My Lords, I am obliged to the noble Lord for that correction. Moreover, a new multi-party unit has been set up within the commission. It is there to supervise the disposition of funds.

In this case, the decision has been taken to instruct a single group of lawyers to deal with the problem of causation. This group of lawyers has moved from one firm to another. In the end, it will be for the newly established commission to decide which group of lawyers in which firm will deal with which case. That is not a decision upon which I am in a position to comment. Only the noble and learned Lord the Lord Chancellor, using the brief that he will receive from the commission, will be able to give a definitive answer to that.

I know that this matter is causing great distress to many people. The noble Countess, Lady Mar, should be warmly congratulated on her efforts in raising it on the Floor of the House. I now look forward to hearing what the noble and learned Lord the Lord Chancellor has to say in response.

7.2 p.m.

The Lord Chancellor

My Lords, multi-party actions are claims brought by several different parties who have been affected by a single incident, like a major transport disaster or a common cause such as an allegedly harmful chemical. It is common for the Legal Aid Board—from 1st April this year, the Legal Services Commission—to fund one test case in the first instance.

Because the defendants in these cases are typically large organisations with substantial resources available to them, there is a great deal at stake in the claims. It is therefore important that public funds are made available to help litigants to put sue such claims before the courts. The Legal Services Commission has special arrangements for handling these complex and costly cases to ensure that they are pursued as efficiently as possible.

In most, individual clients may retain their own solicitors, but the generic work, which includes all the key issues of law and fact in the case, is handled by an expert solicitor drawn by tender from the quality assured panel of legal firms which make up the multiparty action panel. To win a place on the panel, solicitors' firms must show that they have recent experience of co-ordinating or handling generic work and sufficient resources to handle actions of this size.

As has already been said, contracts for the generic work in each multi-party action are managed by the commission's own multi-party action unit. Each contract has a dedicated case manager, a senior solicitor experienced in handling multi-party actions and employed by the commission. The aim of these managers is to ensure that cases are taken forward effectively in the interests of the clients, consistent with the need to protect the public purse. If the unit is dissatisfied with a firm's conduct of a case, it can terminate a contract and may enter into a new contract with another firm. Significant decisions on multi-party actions made by the unit can also be referred to the multi-party action committee, which is made up of representatives of the legal profession and consumer associations and the Legal Services Commission.

Perhaps I may turn now to the two multi-party actions to which the noble Countess has referred. I take it that she favours the grant of public funding for these cases and of course her vigour in publicising the concerns of the Gulf War veterans and sheep farmers is, as has been noted by the noble Lord, Lord Kingsland, well known to this House. The first is an action by a group of ex-servicemen who fought in the Gulf War. They allege that they sustained injuries as a result of exposure to substances, including organophosphates, used, they say, without proper precautions. Some claims concern birth defects said to arise from the fathers' exposure to these substances.

Around 500 legal aid certificates have been issued. The amount spent so far on generic work —that is, work on the issues common to all the certifications—is just under £0.9 million. The action is still at the investigation stage and expert evidence is being assembled. No proceedings have yet been issued. As to the future, it is not the practice to make public projected fundings for actions supported by legal aid lest that information give any forensic advantage to defendants. The generic work is being handled by the firm Hodge Jones & Allen.

The second multi-party action is a claim by farmers and their workers against the manufacturers of' products containing organophosphates used in sheep dips for alleged failure to make the products safe or to give full advice on their safe use. Seventy-two legal aid certificates have been issued so far. To date, a total of £1.1 million has been paid, of which £0.8 million relates to the generic issues. This action is more advanced than the Gulf War case. Full statements of claim and applications for specific disclosure are now being considered. The generic work is again being handled by Hodge Jones & Allen.

Both the Gulf War and the sheep farmers' multi-party actions were originally, as has been noted, handled by Dawburns, a Norfolk firm. That firm was also handling a third multi-party action involving alleged damage caused by a vaccine. The facts of what happened are these. In 1998, the team handling the three multi-party actions moved from Dawburns to the London firm, Hodge Jones & Allen. The contracts for all three cases were transferred to Hodge Jones & Allen, which formed a large team to handle the cases, including the members of the original Dawburns team. In July 1999, however, the team split. The individuals originally from Dawburns decided to move to another firm, Alexander Harris.

It has to be said that both Alexander Harris and Hodge Jones & Allen are experienced personal injury firms who are members of the commission's multiparty action panel and are capable of handling complex multi-party actions. After some discussion in that new state of affairs, Hodge Jones & Allen and Alexander Harris jointly proposed that the Gulf War and sheep farmers' cases should remain with Hodge Jones & Allen and that the vaccine case should transfer to Alexander Harris. The two firms issued a joint statement to inform their clients of the proposals.

At that stage, the Gulf Veterans Association approached the Legal Aid Board to express its disquiet at the upheaval that would follow the splitting up of the team and to raise some complaints about the handling of the case thus far. These were the only representations made to the Legal Aid Board. None was received from the larger representative body, the National Gulf Veterans and Families Association. There is no evidence of which I am aware of any general client dissatisfaction with the handling of the claims either by Hodge Jones & Allen or the by the Legal Aid Board, now the Legal Services Commission.

Of course it is disquieting for clients when there is a split of this kind in a legal team. The Legal Aid Board recognised that there was subjective client loyalty to the original Dawburns team. However, the board's responsibility was to make an objective assessment of how the cases could most effectively be taken forward in the interests of the clients. In agreeing that the Gulf War and sheep farmers' cases should remain with Hodge Jones & Allen, the Legal Aid Board took into account the following factors.

First, the three actions had grown to such an extent that it was doubtful that any one firm could effectively manage all three. Secondly, there was a particularly strong overlap of scientific issues in the Gulf War and sheep dip claims—because both actions related to the use of organophosphates—indicating that a single firm should be responsible for both. Thirdly, imposing a division of the work contrary to the agreed proposals of the two firms might have delayed progress while the firms contested the decision and could have jeopardised future goodwill and co-operation between them. Fourthly, although the resources at Hodge Jones & Allen were initially severely reduced by the move, Patrick Allen of that firm was able in a short period to assemble an impressive team of eight solicitors and scientific and support staff, including Mark Mildred, one of the most experienced multiparty solicitors in the country. Finally, although expertise had been lost from Hodge Jones & Allen, the same would have been true had the work been placed with Alexander Harris, which would have had to replace the support staff and the medical and scientific expertise which had chosen to remain with Hodge Jones & Allen.

I hope that these general explanations reassure your Lordships and the noble Countess that the Legal Aid Board, now the Legal Services Commission, does take account of the interests of clients and the taxpayer at every stage in the handling of multi-party actions. Of course, I cannot possibly comment on the allegations made by the noble Countess, having only just heard them. They are quite worrying allegations to make against professional men and women. If the level of dissatisfaction that she expresses is really there and widely there, that is troubling.

It appears to me that this is a matter for the Legal Services Commission rather than for me. However, I can certainly say from this Dispatch Box that the Legal Services Commission will be more than happy to meet those who are complaining and to evaluate the nature of the complaints. Having listened to the noble Countess, however, I believe that the Legal Services Commission would find it much easier to assist if the complaints were set out in writing, in detail, so that they could be considered in advance. Certainly, the Legal Services Commission will listen with care to all complaints that are made, as it is its objective to ensure that the interests of clients and the beneficiaries of legal aid are advanced.