HC Deb 25 July 2000 vol 354 cc177-83WH 11.58 am
Mr. Harry Cohen (Leyton and Wanstead)

First, may I thank Madam Speaker for granting me this debate on access to justice and civil procedure? My focus is on the first section of Law Commission Report 257 on "Damages for Personal Injury, non-Pecuniary Loss". I am particularly interested in the level of damages awarded and in the impact of the Lord Chancellor's civil procedure reforms.

I shall cite my wife Ellen's case as an example. I have cleared it with the Parliamentary Commissioner, Mrs. Filkin, who advised that it is acceptable providing that the case is completed; that it is about restitution of damages, not personal benefit; and that I declare in my speech that my wife has gone through the experience as I describe.

Ellen sought surgery for two implants to her lower jaw. She was referred to Mr. James Evans, a consultant maxillo-surgeon who practises extensively in the private sector and in the NHS, including Whipps Cross hospital in my constituency, University College hospital and other London hospitals. My wife asked whether there were any contraindications to the proposed procedures. Mr. Evans said that there were none, but at the pre-planning stage, he failed to perform a bone scan, which would have shown that her upper and lower jawbones were extremely thin. Consequently, he broke my wife's jaw during the operation. He failed to notify her of that. To try to strengthen her lower jaw, he performed a bone graft without her consent. However, that did not work. He inserted the two implants too deeply, at angles that made them impossible to use as a base for teeth. He gave Ellen none of that information. She suffered post-operative shock, without understanding what was happening to her, and she received no remedial treatment. At the post-operative check-up a week later, she passed out twice in front of Mr. Evans and was placed in a bed for a couple of hours, before being left to drive herself home.

After seven months, Mr. Evans attempted to reveal the implants and my wife underwent a series of barbaric mediaeval procedures at his hands and those of his orthodontist, Mr. Barnett of Loughton. During those procedures, my wife's facial nerve was repeatedly split and dissected until it resembled the tributaries of a major river. Infections were introduced repeatedly, causing her massive pain and facial disfigurement. Her fractured jawbone began to grow abnormally, and had to be corrected with later surgery. She developed a fistula, which fed poison into the rest of her body. That was ignored and led to repeated illness-in time, it would have resulted in toxaemia. The case against Mr. Evans was convincing.

One year after the original operation, Ellen reluctantly sought legal help. Evans phoned her four times threatening to unleash his insurers on her. His solicitors refused to engage for a couple of years, until my wife had gone to the expense and worry of preparing a case. Shortly before the case reached court, Mr. Evans admitted liability on all counts. His solicitors took another year to agree damages, after again going up to the wire of a court hearing. The process lasted four years, during which my wife could not afford reconstructive surgery. Thankfully, Professor Pederson of the Eastman dental hospital and institute saved her from more suffering two years ago, by removing the implants, re-routing the facial nerve and dealing with the bone abnormalities and the fistula. Since then, Ellen has suffered no infections. Her case presents a good example for the two issues that I will raise.

In the meantime, Ellen retired, so her damages did not include loss of earnings. They concerned only the pain and suffering, and the loss of amenity elements. It is important to distinguish between those two aspects. The former—special damages—can result in very large settlements; the latter—general damages—is small potatoes in comparison. However, it was the latter on which the Heil v. Rankin judgment of 23 March 2000 clamped down. That was one of eight test cases on which five top judges adjudicated, including the Lord Chief Justice. First, those judges ignored the Law Commission's recommendations in Report 257, which called for an increase by a factor of at least 1.5—that is, 50 per cent.—but not more than a factor of 2—100 per cent. However, the judgment provided no increase whatever in awards below £10, 000, and only a tapered increase up to one third for the most catastrophic cases. In that respect, the Law Commission's recommendations were thrown in the bin.

The damages award to Mavis Schofield, the widow of Keith Schofield, who died from asbestos-related causes, were raised from £40, 000 to £44, 000; had the Law Commission's recommendations been implemented, she could reasonably have expected a minimum of £60, 000.

Secondly, the judgment discriminates against the medical negligence victims who are less able to bring cases and to get a fair settlement by clamping down on the pain and suffering aspect of damages. It discriminates against those pursuing small claims and against the elderly, the disabled, women, and children and those on low incomes. The class discrimination aspect of the judgment is appalling. In their defence, the judges said that it was for Parliament to intervene if it wanted to, and that is what I am attempting to do.

Thirdly, the judgment was based not on fairness and justified redress for the victim, but on the interests of parties not directly involved in civil actions—the medical insurance companies and the national health service. The judgment says that the court took into account the impact of the level of damages on the level of insurance premiums and on NHS resources. That is bizarre; I thought that a civil case was between the two parties to it, yet the judgment takes account of other factors and other parties. That makes the victims pay; it subsidises consultants' medical insurance premiums and, more seriously, it subsidises bad consultants. The NHS already pays out for bad consultants and their medical insurance companies, and that should change. I am told that it cost my local NHS trust more than £250, 000 to suspend a consultant suspected of wrongdoing. Reform is much needed.

Insurance premiums should include no-claims bonuses for good consultants and extra fees for bad ones. The public wants the medical profession to be more accountable, but unless bad consultants incur the full cost, at least in insurance terms, of their negligence and malpractice, they are unlikely to be identified and dealt with. They should certainly not be subsidised, which the judgment allows.

The judgment protects the consultants and their powerful insurance companies. It is no wonder that Tom Jones of the solicitors Thompsons, who represented one of the clients in the eight test cases, said after the judgment: It beggars belief. What world are these judges living in to make these kinds of awards? Accident victims throughout England and Wales have been short-changed by a shortsighted Court of Appeal. The Court of Appeal has sided with the insurance industry that in 1998 made a trading profit of £1.2 billion. It has put the interests of profit before justice. The judgment is a slap in the face for victims.

Damages in Scotland are significantly higher than in England and Wales, so an asbestos victim in Newcastle is likely to receive tens of thousands of pounds less than a similar person just across the border. Germany and Ireland, whose systems are comparable to ours, have significantly higher damages awards.

It is nonsense to say that the courts would be clogged up if damages had been increased to the level suggested by the Law Commission. Spurious claims would still be unsuccessful. The civil procedure reforms introduced by the Lord Chancellor would kick in and ensure that such claims were dealt with more quickly. A claimant would still have to prove his or her case, and a defendant would still have to refute it or otherwise.

The judgment talked about basing future increases in damages on the retail prices index, but made no provision for annual uprating. The judgment was poor, which is why I draw it to the House's attention. The Justices suggested that Parliament could intervene, and I ask that it rectify the judgment in the ways that I have mentioned.

I give credit to the Lord Chancellor and my hon. Friend the Parliamentary Secretary for their efforts on the civil procedure reforms. The Parliamentary Secretary said that the aim of the reforms, which came into effect in April 1999, was to produce a civil justice system that was quicker, simpler, less costly, more certain and fairer. That aim is laudable, and I strongly support it. However, because of the delays, some claimants could die before they obtain a just settlement. I suspect that some insurance companies play for that. Such delays need to be cleared up.

A couple of reviews have been published since the introduction of reforms. One review, published earlier this year, said that more than 80 per cent. of respondents thought that the courts did not have the resources to process claims sufficiently quickly. Ellen's solicitor said that the court took an inordinate time to pay out her claim because it was understaffed. That needs to be addressed. The review also said that the courts are not appointing joint experts, which was true in Ellen's case. In fact, she did not even know that joint experts existed. It said that the courts do not penalise parties who fail to comply with the new rules. They were not penalised in Ellen's case.

Another review published this month referred to the need for more co-operations between parties, particularly as the court case approaches. That did not happen in my wife's case: the insurance company's solicitors were content to delay until the last minute and were not punished for doing so. The review also mentioned greater case management by judges. Again, that was not evident in my wife's case. I think that a newspaper article said that only about 7 per cent. of judges become involved in case management.

The Parliamentary Secretary of State, Lord Chancellor's Department (Mr. David Lock)

indicated dissent.

Mr. Cohen

I see my hon. Friend the Minister shaking his head. If it is up to the judges, they will not become involved. They need to be chivvied to ensure that the reforms work, because they have an important role in that. The reviews suggested a host of measures to encourage parties to settle their disputes at the earliest possible stage. Again, that did not happen in my wife's case.

The Lord Chancellor has said: Of course the Rules are only part of the story of the reforms—a change in culture will occur, with greater emphasis on the settlement of cases, and less ponderous proceedings. I must retort in the words of my wife's solicitor, who told her that after the reforms were introduced everyone behaved themselves for a couple of months, but now they are back to their old ways.

I support the reforms and their aims. They are terrific, but they need to be implemented. Much more needs to be done to achieve those aims.

12.15 pm
The Parliamentary Secretary, Lord Chancellor's Department (Mr. David Lock)

I congratulate my hon. Friend the Member for Leyton and Wanstead (Mr. Cohen) on securing this debate. He has raised some important issues in relation to damages for personal injury. His wife's case is clearly very distressing, and I would like to express my sincere sympathy to his wife and him. Although he will understand that I cannot comment on individual cases, the graphic tale that he has told shows the problem. The victims of accidents or personal injury should not become victims for a second time as a result of the court process. I am grateful that he has raised the issue.

My hon. Friend eloquently and forcefully raised several important matters that lie within the jurisdiction of my ministerial colleagues in the Department of Health. I undertake to ensure that his speech is drawn to their attention, and I shall ask them to write to him on the points that are within their competence.

The level of damages for personal injuries has traditionally been seen as a matter of common law for the courts to decide, in their independent sphere. The Government have no plans to introduce legislation on levels of damages either for particular classes of case or generally, but I am sure that my hon. Friend's views will be heard here and considered as part of the overall debate outside the House.

The Law Commission Report 257, entitled "Damages for Personal Injury: non-Pecuniary Loss", invited the courts, in the first instance, to express their views on the assessment of damages to be awarded for personal injury and loss of amenity in particular cases. My hon. Friend referred to the Court of Appeal decision in the Heil v. Rankin case in March. The decision increased damages for the top end of the scale by one third, tapering down to awards of £10, 000, below which there would be no increase. I accept that that is less than the Law Commission recommended, but it is more than previously awarded. The court did not ignore the views expressed in the report. Rather, the five Court of Appeal judges, after detailed consideration of the report and its reasoning, and the other submissions made to them, determined the level of increase necessary for general damages to be fair, reasonable and just.

On the impact of the civil procedure rules, I am grateful that my hon. Friend acknowledges that the Government has tackled long-standing problems with a radical approach. I am grateful for his support for the main aims of the reforms. The civil procedure rules include an overriding objective to enable the courts to deal with cases justly. To further that objective, the courts are required actively to manage cases and to ensure that they are dealt with in a way that is proportionate to the complexity and the issues at stake, and with proportionate costs.

Many of the reforms' features are aimed at improving the way in which cases are handled. For example, pre-action protocols for personal injury or clinical disputes claims are intended to encourage the early exchange of information between parties, to bring about settlement of claims without the need for litigation, where possible, and to ensure that parties are better prepared, should litigation be the only way to settle a dispute. Claimants' offers to settle are another innovation aimed at encouraging early settlement. The number of issued cases since the protocols came into force has fallen by about 23 per cent. Anecdotal evidence suggests that the operation of the protocols is causing many more cases to settle at an earlier stage. That is a good outcome, because claimants are being left uncompensated for a much shorter time. I hope that it means also that a smaller proportion of insurance premium moneys are being paid in damages, and less is being spent in getting to the point when damages can be assessed.

Other features of the reforms include the use of single joint experts and the application of sanctions for parties who disobey the rules. I do not know when the case of my hon. Friend's wife started, but it may have been before the civil justice reforms were introduced. If so, the new rules covering the use of joint experts might not have applied. Even if the case had been started after introduction of the reforms, no hard and fast rule says that joint experts must be instructed. In particularly complex cases, it may not be appropriate to do so, but it is a matter for the procedural judges to decide what is appropriate in the light of the circumstances of each case.

The same is true of the application of sanctions for non-compliance with the rules. Sanctions were never intended to be purely punitive, and it was never intended that they should be applied automatically for every minor default. They exist to assist the court, when appropriate, and to act as a deterrent. For example, a delay may be unavoidable or may occur for good reason, or the court and the parties to a case may not be inconvenienced by a short delay; a sanction applied automatically in such circumstances would clearly not constitute justice.

The difference of principle under the new rules is that, in the absence of compelling reasons, the court expects the rules to be followed, and it is expected to manage cases proactively to ensure that that happens—including using sanctions if it is necessary to ensure that the rules are followed. Before the Woolf reforms, many of the rules were observed in the breach. Since the reforms, we expect the rules to be followed; we also expect cases to be managed by the courts with a view to the rules being followed.

Although it is too early to draw definitive conclusions about how the reforms are working, early indications have been positive. Some bodies have already conducted research within their own legal boundaries. For example, the Birmingham solicitors Wragge and Co. commissioned a study seeking the views of the legal heads of the FTSE top 1, 000 companies. Nearly 90 per cent. of respondents were in favour of the reforms. It may be helpful to my hon. Friend if I quote from that report. It stated: The main advantage of the Woolf reforms is potentially faster resolution of disputes with less posturing between lawyers. We are now able to focus on the issues at stake, rather than procedures.

The Wragge report said also that 65 per cent. of respondents thought that faster resolution of claims was the main advantage of the reforms. Other procedures were thought to be beneficial. In 89 per cent. of cases, it was felt that offers to settle by the claimant at any point were beneficial; 74 per cent. of respondents thought that pre-action protocols had assisted their case; 64 per cent. were positive about the interventions and the case management function of judges; and 53 per cent. of those surveyed viewed the appointment of joint experts as an improvement. The MORI poll conducted on behalf of the Centre for Dispute Resolution found that about three quarters of those surveyed thought that the new procedures had a positive effect in improving the culture for settlement.

I must reiterate that it is early days, because the Lord Chancellor's Department has only just commenced its own fundamental evaluation of the programme. Even in the relatively short time since April 1999, when the reforms were introduced, there has been considerable improvement, but a lot remains to be done. I am particularly grateful to the Civil Justice Council, the Law Society and the Bar Council, who are advising on our plans and providing major contributions as our partners in the evaluation process.

My hon. Friend referred to a lack of resources in the courts. The nature of the reforms was expected to increase the administrative work of court staff. For that reason, an extra 60 staff were redeployed to meet that initial need. Some £1 million was allocated to allow for the possibility of overtime or the appointment of temporary staff. More recently, a further £1 million has been allocated to handle the residue of old cases that started under the old rules, but which must be concluded under the new regime. All courts were provided with IT support to meet the April 1999 implementation date. There has been a continuous programme of work to introduce further improvements and enhancements since that time. Plans are also in hand to introduce a new system called Caseman-plus in the summer of next year. That will combine the current case management system with other stand-alone systems that deal with case monitoring and listing, and will eliminate some of the duplication of effort that currently exists.

As part of the service delivery, the Court Service programme, Modernising the Civil Courts, will additionally focus on the needs of the customer and provide better value for money. The programme is one of the key building blocks for implementing strategic change in the Court Service. My hon. Friend suggested that lawyers are perhaps going back to their old ways after a few months. That is not the general view of the Department, the Court Service, or, as far as I am aware, the judges. I pay tribute to the commitment shown especially by district judges, who handle the vast amount of procedural work that is necessary actively to case manage business in the courts. They are committed to the reforms, the success of which is a tribute to their commitment.

I assure my hon. Friend that we will be assiduous in ensuring that the new culture sticks and is not replaced by a sloppy, late or lackadaisical attitude redolent of a pre-Woolf era. The judges have new powers of case management and I am confident that they are exercising them. There are tough sanctions against those who break the rules, and I encourage judges to use them to ensure that cases proceed, as they should. The research evidence to date is encouraging, but we are anxious to ensure that there is no slipping back to the good old bad old days. I am confident that the civil justice reforms are proving their worth. As I said, most of the evidence to date is qualitative and anecdotal, but it shows a high level of satisfaction overall. However, I assure my hon. Friend that we shall remain vigilant to ensure that the principles set out in the reforms and rules are carried through as cases are managed actively in the courts.

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