Examination of Witnesses (Questions 120-125)
BARONESS ASHTON
OF UPHOLLAND
AND MARK
ORMEROD
1 NOVEMBER 2005
Q120 Dr Whitehead: Presumably your
pilot might have some bearing on this.
Baroness Ashton of Upholland:
I hope so. If people get better quality advice to begin with and
are able to come into the court system feeling more comfortable—because
it is daunting, although the judges do a magnificent job at putting
people at ease—then that will be very beneficial. I think
it is the way we ought to go with this when we can.
Q121 Jeremy Wright: It did occur
to me from what you were saying about the Small Claims Support
Service that it might have the potential to deal with one of the
points that was made by the Association of District Judges to
us, which was that although they did not necessarily think the
presence of lawyers within the claims hearing itself was of particular
benefit in every case, they did think that legal advice before
you got to the claims hearing was extremely valuable and no doubt
helped in narrowing down the issues. You would say the Small Claims
Support Service might have a role in helping people to do that.
The other thing I wanted to ask you about was the equality of
arms point which is being made to us by a number of different
bodies, not all of whom, I accept, are entirely impartial on the
subject. One of the scenarios which occurs to me which may cause
difficulty is that even if legal costs are not recoverable within
a small claims hearing and therefore neither party would be able
to get back the money they have paid for legal advice, if you
have a scenario in which somebody is making a relatively small
value claim against either an insurance company or a holiday company
or something of that nature, the holiday company or the insurance
company may still think it appropriate and indeed vital to have
legal advice and assistance because the value of the claim, although
it may be small in each individual constituency, if it were to
open the floodgates to hundreds and hundreds of claims, would
cost them a great deal of money. In the interests of preventing
a precedent they might think it appropriate to have quite high
value legal advice. Does the Government have any thoughts on how
in a small claims environment you avoid the process being hijacked
by high value legal advice creating a real inequality of arms
problem?
Baroness Ashton of Upholland:
I have seen exactly the situation that you describe, where it
is just the norm that an insurance company or whoever will bring
with them their in-house or their usual barrister. I think there
is a particular onus in a sense on the judge in those circumstances
to make sure that the individual who is not represented is able
to deal with this. I do not think in any court you can always
guarantee that you will get equal quality because, as you will
be aware, people can afford different people and there are different
qualities of members of the legal profession. Therefore, you do
find that that can be the case. We have, fortunately, in this
country a very good system where the judges are very clear about
the way in which they wish to ensure that justice is done and
whether that is in a case where someone chooses to defend themselves,
which of course they are entitled to do in a major case or in
small claims, it is a responsibility of the court to make sure
they do get equality. Whether or not you agree that that is always
the case, I think we have to work on the principle that that does
happen and that justice is dispensed fully. The experience, which
is not huge, that I have gained of watching cases where that could
happen is that it does not follow that because you have got a
high paid barrister you win. It follows that you will have good
legal argument and the judge will have a slightly different conversation,
but the conversation they are having with the other individual
may be of a different type. I am reasonably confident from what
I have seen that we have got that about right.
Q122 David Howarth: Also on this
point about early legal advice being better than late legal representation,
has the point been made to you that, whatever the answer is, to
try to produce a situation where people get early advice does
lead to better settlements because people realise what the situation
is? The answer probably is not the traditional cost rule as found
in the other tracks because what that tends to do is to encourage
people to pile costs in late. It is like a bet where the pot is
getting bigger and they are tempted to try and bet more at that
stage. Obviously we need to find the answer, but I doubt the answer
is the one put forward by the Association of Personal Injury Bodies.
Baroness Ashton of Upholland:
You may well be right in that. Our concern is to make sure that
the quality of advice that people get at the beginning, not only
through the courts, a lot of people go to Citizen Advice Bureaux,
to law centres, to other methods of support, is as good as it
can be. So people set off down this journey and once they have
got to the court process we need to make sure we provide them
with the support in the courtroom they need to do this. That is
a much better solution in my view than any other.
Q123 Mr Khabra: In personal injury
cases worth less than £2,000 or £2,500 detailed and
very expensive reports are produced which may be totally unnecessary.
Do you consider that, in view of the judges' views on this, they
are totally unnecessary? Has your Department considered the use
of a simpler system in personal injury cases worth less than £2,500
whereby a more basic medical report could be presented rather
than a detailed expensive one by experts? My personal view is
that it often happens that the legal cost of the case is much
higher than the value of the claim itself. Would your Department
be prepared to consider a simpler method?
Baroness Ashton of Upholland:
We are very keen, as part of the whole way that we look at streamlining
the systems, to make sure that we keep things as simple and as
cost effective as possible. It is always difficult on personal
injury cases to generalise about why people have spent more money
on one particular report than another. In general terms you are
absolutely right. It seems to me that we are trying to find ways
that the costs of the case in a sense do not exceed what the person
is seeking to claim. There will be exceptions to that. What we
would like to do is make the system as streamlined and simple
as possible and to use the right kind of reports and to make sure
that the courts get the right kind of information. Again, in some
cases there seems to be heaps and heaps of documentation and information,
not all of which you could argue is particularly necessary. With
the way that judges move them around you can tell that they have
a lot of information that is superfluous. Partly that is about
better advice to begin with to individuals about what is needed
and what is relevant rather than sending everything. You have
a good point, if we get the system to be more streamlined and
more straightforward, which is what we are seeking to do, then
the reports themselves could become that and inevitably more cost
effective. Yes, we will be looking at that.
Q124 Chairman: If a case goes out
of the small claims court either on appeal or because it is re-allocated
the claimant loses the cost protection which they have got in
the small claims court and that can mean that a well endowed party
with substantial means can then deter a claimant from taking the
matter further. I know you are consulting on whether this could
be carried forward in the small claims court. Can you say anything
more about that?
Baroness Ashton of Upholland:
We are asking people whether they agree that what we should do
is continue, even though it moves into a different track, to have
the same cost base as the small claims on the grounds of fairness.
That is where people started off, that there is a choice to be
made about moving it into a different track that may be the right
track for all sorts of reasons, but someone could then be confronted
with a cost base that they were not expecting and perhaps they
would have made a different decision. The consultation is asking
whether or not it is better that we stick with the small claims
costs if a case moves out into a different track. I have not had
the results yet otherwise I would share them with you.
Q125 Chairman: You are looking at
that both in relation to appeals and in relation to mere re-allocation,
are you?
Baroness Ashton of Upholland:
Exactly.
Chairman: I think those are all the points
that we wanted to put to you today. We are very grateful for the
time and attention you have given to the matter. Thank you very
much indeed.
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