Examination of Witnesses (Questions 60
- 79)
TUESDAY 16 OCTOBER 2001
THE RT
HON LORD
IRVINE OF
LAIRG QC AND
SIR HAYDEN
PHILLIPS KCB
60. There is no need to get drawn into the detail
in this session. Let me pass you a copy, this ought to be the
basis on which you can respond.
(Lord Irvine of Lairg) They can obviously insure against
it and pay for it, the question is what they can recover against
the defendant.
61. If you can let us have a considered response[1]
when you have had a chance to look at the note, we need not dwell
on that.
(Lord Irvine of Lairg) It is a very detailed question.
Chairman: Yes, it is. Next, the effect of conditional
fees on medical negligence claims.
Mrs Dean
62. What assessment is being made of the impact
of no win/no fee charging on levels of litigation and their rate
of success in medical negligence claims?
(Lord Irvine of Lairg) The honest answer to that is
that no assessment as such has been made or really could be made.
There is no mechanism. There is no means. I suppose I could go
along to the Law Society and say, will you require all your members
who do medical negligence work to report, and who do it under
conditional fee agreements to report the terms of the conditional
fee agreements and the outcome of these cases or whatever. I do
not know that it is really feasible to expect the Law Society
to do it. I do not think the Government could be expected to gather
that information from the private sector. What I do think is quite
interesting is this, since your question supposes that conditional
fee agreements are being used in the medical negligence area,
although legal aid still remains available in that area that does
suggest strongly to me that even in the area where it was being
said to me at the time of the Access to Justice Bill it was absolutely
outrageous to withdraw legal aid, "if that is what you are
thinking about Lord Chancellor?" I did not withdraw legal
aid in that area, still the other side of the argument is being
shown by the fact that there are conditional fee agreements which
are alive and well and causing lawyers who specialise in this
field to make profit in what is a very, very difficult and expensive
area of litigation, which is why I did not withdraw legal aid,
not least because of the very heavy disbursements that are incurred
in medical negligence cases up front in order to decide whether
you have a case that is worth taking forward in the first place.
63. It probably relates to the Law Society having
concerns about the ambulance chasing by claim management companies.
Are you concerned that we appear to be moving towards a compensation
culture?
(Lord Irvine of Lairg) I am not. I always repudiate
that when it is said. Let us stick with medical negligence, one
of the most emotive cases that used to be put to me about four
and a bit years ago was the brain damaged child, a terribly difficult
case. Think of any really serious medical negligence case, a paraplegic
case, think of a case where somebody becomes a vegetable or somebody
is disabled for life from earnings, well the notion that it is
some kind of compensation culture that is encouraging people who
have a case that they can establish that the medics were negligent
does not carry a vast amount of weight for me. I do accept, I
entirely accept that there are worries for the National Health
Service budget and I entirely agree that trifling cases can be
brought and it is a burden to have to deal with them. I also think
that we ought to promote as much as we can conciliation and mediation
in this area, that is why I promoted a pledge across the whole
of Government, which Government has made in relation to its own
contracts, that we will always be willing to go for alternative
dispute resolution in place of litigation, provided the other
side is willing to do so. That, if you like, is setting an example.
I agree with you that there is a hostility to settlement in the
medical negligence area and I am not going to apportion blame
between the lawyers who act for plaintiffs in these cases and
the lawyers who act for the defendants, the doctors and their
medical associations. The other thing I would say about this is
that the law in this area is very heavily weighted actually in
favour of the doctors and it may well be rightly. We do not want
to have doctors who are ludicrously averse to risk, we do not
want doctors who are not willing to take any step in the patient's
interest for fear of a writ for negligence. The law is weighted
very, very much in favour of a reasonable standard of care so
that if a doctor follows an approved practice which another reasonable
body of medical men would think is a sensible route to follow
in relation to a particular operation the fact that it goes wrong
does not involve negligence on the part of the doctor.
64. Are there any plans to introduce regulation
of claims-management companies?
(Lord Irvine of Lairg) We did have a committee, the
Blackwell Committee, which looked at Claims Assessors, they found
no evidence of abuse. In fact I can tell you what the Blackwell
inquiry said, it found little or no objective evidence that claims
assessors were causing significant concern or problems in settling
personal injury claims. I remember I was quite sceptical about
that at the time and I went back to them but I was told that they
were not recommending any immediate action and so that is where
it rests at the moment. There has been a lot of bad publicity
for Claims Direct, as you obviously know, but as far as I can
see that company is back, more or less, on an even keel. Basically
I do think that people are entitled to know about services that
are available to them, provided the advertising is not misleading.
That, of course, is why the Law Society itself allows lawyers
to advertise their no win/no fee services publicly and the Law
Society actually lends its name to television advertisements for
legal expenses insurers who underwrite personal injury claims.
65. Can I turn to contingency fees, what would
persuade the Government that contingency fees would be acceptable
for court cases in England and Wales?
(Lord Irvine of Lairg) Not acceptable.
66. What would persuade the Government they
were acceptable?
(Lord Irvine of Lairg) You would find it very difficult
to persuade me. I will tell you why, a contingency fee is often
confused with, but is entirely different from, a conditional fee
agreement. It says under a conditional fee agreement a lawyer
must state, "unless I win I will not charge you a fee".
How do you ensure that defendants are not needlessly vexed with
claims if lawyers are going round encouraging people to sue on
that basis. The answer is that the market takes care of that because
a lawyer will very quickly go out of business if he goes on a
no win/no fee basis and does not win more than he loses. Indeed,
as I said earlier in answer to your colleague, trade unions are
a classic example to lawyers on how to run a profitable business,
with the winners effectively subsidising the losers. What a contingency
fee agreement is is an entirely different thing, a contingency
fee agreement, in the American language, is where the lawyer gets
a slice of the action, I take on your case and you and I agree
that if I get £1m for you I get £500,000, so I get half
of the recovery, it is a proportion of the recovery. Whereas,
what a conditional fee agreement is is an uplift on what the lawyer's
fees otherwise would be, it is regulated by the court, because
the court decides whether the uplift is reasonable. At the moment
the insurance companies are, as you would expect, and rightly,
not being shy of challenging the amount of uplift. At the moment
there are attempts between representative bodies to agree a reasonable
amount of uplift in categories of case so that the courts are
not going to be troubled with deciding this kind of thing. I feel,
first of all, that the conditional fee agreement market is working
so well that there is no need to take that further step. Secondly,
I do think that the contingency fee arrangement gives too great
an interest on the part of the lawyer in the outcome, there is
too much at stake for the lawyer. A contingency fee regime puts
unacceptable temptation in the lawyer's way, that is what I think.
Chairman
67. That would be a big step along the way to
a compensation culture?
(Lord Irvine of Lairg) You could certainly say that,
that is a very well taken point, because a lawyer could take,
which I think the question implies, any number of losers and all
he needs is the big one to come home. I get £5m damages for
you and I get £2.5m and I can fund quite a lot of losers
out of that. As the Chairman rightly says that could be the beginning
of a compensation culture.
Chairman: Thank you. Can we turn to judicial
appointments.
Bridget Prentice
68. There appears to be a reduction, Lord Chancellor,
in the number of magistrates this year, I wonder if you have any
views on that? Are there more people resigning rather than being
appointed and is that an abnormal figure?
(Lord Irvine of Lairg) We have about 30,500 magistrates,
they got a nice ringing endorsement out of Lord Justice Auld.
There was a lot of media speculation about their future, the result
is that I made speech after speech saying how highly we value
the lay magistrate. We did conduct research into relative efficiencies
of lay magistrates and stipendiary magistrates, as they used to
be called, District Judges as they are now called, and the future
of the lay magistracy is absolutely secure, as I have said many
times. As I said in answer to an earlier question, when we were
talking about Auld, this aspect of Auld is not necessarily accepted
yet and it will also be controversial, for the reasons that Mr
Winnick gave, but it is a very strong vote of confidence in the
lay magistracy to propose that either way cases should be tried
by a professional judge along with two experienced lay magistrates
who on a question of guilt or innocence on the facts can outvote
the professional judge. I take this opportunity of saying that
magistrates are highly valued, much appreciated and they have
a permanent and, as I see it, a stable future in the justice system.
I am not aware of any abnormal number of resignations nor am I
aware of any reduction in applications. The impression I have
is that people highly value becoming magistrates and becoming
involved in local justice. There were stories that were blown
up out of proportion about a small number of experienced magistrates
who objected, for example, to training under the Human Rights
Act, that got a bit of currency. I have to say in relation to
these magistrates I do not have sympathy for them, it is in a
way—it is a tiny number, a tiny number—a privilege
to have enhanced jurisdiction under the Human Rights Act. It is
a strong decision of Government to trust lay magistrates to decide
Human Rights Act points and the overwhelming majority of magistrates
accepted training and were trained successfully and accepted it
in a good and proper spirit.
69. As an ex-magistrate myself I am grateful
to you and Lord Justice Auld for the high esteem in which you
hold the magistracy.
(Lord Irvine of Lairg) I hope you were not removed?
70. Unfortunately having to do this job seems
to have debarred me. The figures do appear to be down about 5
per cent on last year.
(Lord Irvine of Lairg) I do not have them, if you
give them to me I will certainly look into it.[2]
May I ask, I know I am not allowed to ask you questions, is that
application figures?
71. That is figures of actual magistrates, as
far as I understand it.
(Lord Irvine of Lairg) I am very, very—
72. The appointment figure is slightly down.
(Lord Irvine of Lairg) There is often a trade-off
between the number of sitting days and the number of appointments,
and so on. I have registered my surprise, so I will look at it.
73. Can you expand a little on the pilot schemes
you have been organising for ethnic minority people and whether
you think there may be some encouragement there for new magistrates
to come forward?
(Lord Irvine of Lairg) As you know we have been trying
very, very hard to encourage applicants for the magistracy from
the ethnic minorities, we have held promotional events, and so
on. I do not want to give the impression, by the way, that the
picture is necessarily a bad one, if the ethnic minority population
of this country is, let us say, seven per cent, it is round that,
then in many, many parts of the country seven per cent of the
magistrates are from the ethnic minorities, I do not want to give
a bad impression, however there are certain areas of the country
where the proportion of the population that comes from the ethnic
minorities is much higher where that is not reflected in magistracy.
We are promoting by every available means encouragement to ethnic
minority applicants to apply, and that includes shadowing magistrates,
and so on.
74. There are some other questions on magistracy
I would like to ask you about, if you have the information, that
is the balance between men and women and also the question about
how you get a balance of the local community generally. You used
to use a political definition, I wonder if you still intend to
do that?
(Lord Irvine of Lairg) We do still invite magistrates
to say how they voted at the last election and I completely recognise
that that is a very crude proxy for social balance and it does
also, in fact, cause offence. Successive Royal Commissions have
supported this and all my recent Conservative predecessors wrote
letters to advisory committees conscientiously saying there are
not enough Labour supporters who are magistrates in your area,
your committee must go out and make more strenuous efforts to
attract Labour supporters. Letters from my predecessors Lord Mackay
and the late Lord Hailsham were sent to that effect. What I am
showing you is that this is something that transcends parties.
This all dates from an era where politics were thought to be class
based and how one voted reflected one's class, and the benches
had to be balanced between the classes. It is completely recognised
that that is very, very old hat. I had an inquiry not so long
ago with the objective of trying to find some other measure of
social balance with what has become very, very crude today. That
particular inquiry failed. When I asked about it recently I was
told that there was going to be some formula for producing a social
mix by means that are less offensive. As to the balance between
men and women, I am not aware that there is any particular imbalance.
One of the problems, of course, and, indeed the reason I altered
the age limits was to attract people who had retired or taken
early retirement perhaps when they did not want to. When I became
Lord Chancellor in May 1997 there was a bar effectively at the
age of 55, having just squeezed past that age myself I was not
willing to accept that I was on the scrap heap so I raised the
age group from 55 to 65 and, in fact, that has proved to be a
very, very fertile source of good quality magistrates. Very often,
honestly, men or women are told that they have reached the end
of their working lives and should take their retirement when they
do not really want to. The magistracy has proved to be very popular
in that age group.
75. We look forward to seeing what the new definition
will be.
(Lord Irvine of Lairg) So do I.
76. Can I move you on to another area, you appointed
Sir Colin Campbell earlier this year?
(Lord Irvine of Lairg) Yes.
77. You have appointed ten deputy commissioners.
(Lord Irvine of Lairg) We are in the course of it,
yes.
78. Why do you need ten?
(Lord Irvine of Lairg) Why not nine? I do not have
the figures to hand unfortunately—maybe somebody can find
them for me. What we have to remember is that this is a country
of 55 million people, if you leave aside Scotland, which is an
independent legal system although there are some limited number
of appointments I am responsible for in Scotland. If you add up
the number of high court judges, there are about 100 high court
judges, there are around 600, maybe 650 circuit judges, I do not
know, enormous numbers of recorders, district judges, deputies
and so on, hundreds and hundreds, let's say 500, applications
for silk with, say, 70 people succeeding. The number of people
who apply as distinct from the number of people appointed is very,
very large—I apologise for not having the figures to hand
but I do not think they would particularly assist, I have given
the impression, rightly, it is a huge undertaking. I know myself
the enormous burden of reading the applications for silk alone,
never mind all the other applications, and of course as in any
appointments process people are going to be aggrieved and, quite
frankly, to have a system of this size and scale of appointments
monitored by one person would not be monitoring worth the name.
The view we took is that he needs ten part-time deputies to assist
as well. I will be making in due course an annual report to Parliament,
alongside which Sir Colin Campbell's first report will be published,
and obviously we will review the need for ten deputy commissioners,
but I do not regard the number in relation to the scale of the
judicial appointments process as in any way untoward. We will
have a deputy commissioner, for example, whose particular remit
will be Northern Ireland because of the special circumstances
of Northern Ireland.
(Sir Hayden Phillips) Could I just add, Lord Chancellor,
that it is not a question of looking only at the numbers in post.
What he is examining is this vast applications system and it really
is important.
79. Has he made any recommendations so far which
have made you modify the procedures for appointments or any of
your decisions?
(Lord Irvine of Lairg) Not yet. Nor am I really, as
it were, monitoring him, if you follow me. He will have his report
to make. The thing I want to take this opportunity to say is that
every piece of paper, every application form, every meeting that
a disappointed candidate has with my officials asking for feed-back,
"Why did I fail?", everything is documented in full,
and every piece of paper which is in that system is open to Sir
Colin Campbell and his deputies to study whenever they like. Sir
Colin Campbell himself can come along, can sit in, in all or any—it
is absolutely impossible of course but you have the picture—he
can sit in when applicants for judicial appointments at any level
are being interviewed, he can listen, he can see for himself and
come to a view whether this is a fair system or not. Even when
you get to the most senior appointments of all, at the top of
our system, where meetings take place between me and our heads
of division—that is the main divisions of the high court—and
we have very, very frank discussions about X, Y and Z and whether
they should or should not become high court judges, Sir Colin
Campbell knows that he is welcome to sit in on those meetings
and listen to every word that is spoken. All I am saying is I
really cannot think of a more open system.
1 See p. 18. Back
2
See pp. 18-19. Back
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