House of Commons Hansard Debates for 22 Jun 1999 (pt 26)

Mr. John M. Taylor (Solihull): Would it not also be much harder in such cases to define a win?

Mr. Marshall-Andrews: Indeed. I will come to that point.

I am not against conditional fee agreements, because if people come to me or another lawyer and say that they are just above the legal aid framework but have been injured and cannot afford legal fees, I have never had any problem with saying, "Well, now you are destitute, but if the case is won you will be in funds and will be able in due course to pay me; if we don't win, no fee."

There is, however, an enormous problem in the fact that under the conditional fee system we are allowed to uplift--that is the euphemism for hike--fees up to 100 per cent. It will not surprise hon. Members to know that if lawyers have the facility to hike or uplift their fees, they do it. The assessment of risk on which they hike the fees is their own assessment and not subject to outside expertise or adjudication.

8.15 pm

The Policy Studies Institute considered a number of solicitors and a very large number of cases and compared the risk with the uplift. It was in no doubt about its conclusions. It said that there were more low-risk cases than high-risk cases; the weighted number of cases in which the uplift appeared too high was 257, as against 122 in which it appeared low.

You, Mr. Deputy Speaker, would have your wits about you in such circumstances and would be able to analyse with clarity whether the advice that you were getting was accurate; but the more disabled or in need of assistance the plaintiffs--be they children, mental patients or the very poor--the more inarticulate they are likely to be and the less able to analyse whether the uplift is suitable.

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Under conditional fee agreements, it is necessary to take out insurance against having to pay the defendant's costs. It is a wishful thought that the burden of the premium would be borne by the solicitor, but the plain fact is that, as of now, on the research available, it is being borne by the plaintiff. The more disadvantaged the plaintiff, the less likely it is that he or she will be able to afford the premium.

At present the premiums are quite small, averaging about £95, but the only analysis is of small cases; the great preponderance are simple and straightforward liability cases: normally motor accidents. What will happen when the brain-damaged child in an occupier's liability case finds a proper solicitor who is not charging over the top for the uplift and is then asked for the insurance premium? In a case in which the damages--for lifelong disability--are likely to be £1.5 million or £2 million and the costs on either side in six figures, the premium will almost certainly be prohibitive.

The Government's answer to what appears to be a self-evident case for excluding disadvantaged groups from the prohibition on personal injury cases is the hardship fund. A fund is to be created from which it will be possible, in exceptional circumstances, for solicitors to apply for assistance. No criteria have been properly set out on whether the fund will be available in any given case.

It is completely contrary to the principle of such welfare provision that the exception is made only if one can demonstrate to an official that there is exceptional hardship. The amendment is thus entirely reasonable. It preserves legal aid for such cases at nil cost to the Exchequer, as we have already demonstrated. To show the total reasonableness of our approach, it retains legal aid but provides that, even in such cases, legal aid will not be available if the determining officer is satisfied that a suitable conditional fee agreement is available.

The effect will be that, faced with those disadvantaged groups, a solicitor will apply for legal aid as of right. The determining officer will be able to ask that solicitor why a conditional fee agreement is not available and the solicitor will say, "Because of the immense complexity of the matters involved."

Mr. Deputy Speaker: Order. May I gently remind the hon. and learned Gentleman that he should address the Chair?

Mr. Marshall-Andrews: Of course, Mr. Deputy Speaker. The determining officer will then be able to say, "We will provide money from the hardship fund." Thus the right is preserved, and will be removed only if there is a genuine alternative available. That would retain a perfect system.

Mr. Nick Hawkins (Surrey Heath): I speak in support of amendment No. 99, standing in the names of my right hon. and hon. Friends and myself, and also supported by the hon. Member for Torridge and West Devon (Mr. Burnett). I thank the hon. Gentleman and the Minister for their kind congratulations. I am especially pleased that you, Mr. Deputy Speaker, are in the Chair when I speak for the first time as an official Opposition spokesman, given our mutual links with the town of Bedford and our interest in sport, which may be relevant to one of the cases that I wish to cite on this very serious matter.

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I also pay tribute to the hon. and learned Member for Medway (Mr. Marshall-Andrews). On Second Reading, the hon. and learned Gentleman spoke immediately after me and we found much common ground on that occasion, as on this. Both of us have spent much time representing people in court on the same circuit. In his longer and more distinguished legal career, he has frequently taken up causes such as that which he supports tonight. Although amendment No. 99 is in slightly different terms to amendment No. 95, I know that he will acknowledge that it is to much the same effect. Both of us seek to persuade the Government that it is crucial to protect the rights and the needs of the disadvantaged--those in greatest need.

In the past in a debate in a previous Parliament, I was the first hon. Member to use the acronym MINELA--or middle income, not eligible for legal aid. MINELAs are a hard-pressed group. Unfortunately, the Government will create many more MINELAs because many more people will not be eligible for legal aid.

It is a pleasure to me to talk about those with a compelling reason to need legal aid. I pay tribute to many voluntary organisations that have worked with the Law Society and the Bar Council, on whose general management committee I had the honour to serve for several years, in seeking to advance the case of those who will be in need of legal aid in the future, as many people have been in the past. It has been a good campaign, supported by a variety of voluntary groups. The Law Society, in its briefing for the Report stage, mentions support from the Child Poverty Action Group, the Law Centres Federation, Mencap--for whom I was working along with many other hon. Members at an event this afternoon within the precincts of the Palace of Westminster--the Royal Association for Disability and Rehabilitation, or RADAR, the Royal National Institute for Blind People, the Advice Services Alliance, the Consumers Association, Justice, the Legal Action Group, the National Association of Citizens Advice Bureaux, Refuge, the Royal National Institute for Deaf People and the Institute of Legal Executives. That is a powerful coalition supporting the arguments that the hon. and learned Member for Medway and myself are putting tonight to try to persuade the Government, even at the last minute, that there are good reasons to keep legal aid available for those in greatest need where compelling reasons exist.

I recommend the excellent publication The Lawyer to all hon. Members, even if they are not lawyers, because it has highlighted the problems with the Bill sensibly and clearly. It has described cases from the past that show why legal aid should continue to be available in the future. I said that one of those cases involved sport, and it is well known to all hon. Members, being the case of Ben Smoldon, who was just 17 when he tragically broke his neck during a rugby match in 1991. In the case of Smoldon v. Whitworth and Nolan, the principles that affect the control of rugby matches--a game well loved by you, Mr. Deputy Speaker, and me--were set out. That case, of a 17-year-old injured in a rugby match through no fault of his own, was tragic and there was no doubt that legal aid was vital. Ben Smoldon's solicitor, Mr. Lee of Evill and Coleman said

"The Legal Aid Board always supported the case even though it knew there was a chance we wouldn't be successful. The prospects of a win were just not high enough for us to take this on a no win, no fee basis."

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I am sure that the hon. and learned Member for Medway will agree that that is the kind of case in which legal aid is vital.

The next example suggested by The Lawyer is the case of Justice for the Longcare Survivors v. Buckinghamshire County Council. As that case is still pending, I shall not go into any details, but it concerns allegations of child abuse. It is another example of a case in which legal aid for those bringing cases in the civil courts will be vital. Another example is the case of Daniel Burnett suing by his "next friend" in James Potter v. Steven John Duckworth, in which a 17-year-old cyclist was left with severe head injuries after being hit by a car in November 1993. He succeeded in that case in proving the liability of the driver despite completely conflicting statements by witnesses. Daniel Burnett's mother said:

"My son's life has been ruined through no fault of his own. I just can't imagine what we would have done if we hadn't been able to bring this case."

Legal aid was vital in enabling them to do so.

Another case cited was that of Dipesh Parmar v. E Castle. The Lawyer says: