Examination of Witnesses (Questions 89-99)
DAVID FOSKETT
QC AND STEPHEN
WORTHINGTON
13 DECEMBER 2005
Q89 Chairman: Mr Worthington, Mr Foskett,
we are very glad to see you both. You have experience at the bar
in these matters. You probably heard the discussions that were
going on previously about compensation culture. In your own written
evidence you talked about the perception issue. What do you think
the Government should do about perception and the compensation
culture?
David Foskett: The easy answer
to that is it is a matter for the politicians and not for the
lawyer. I do not know what the answer is, other than to say that
it is probably a matter of education generally. I think, from
what I have been able to read and what the Better Regulation Task
Force produced, and so on, it is largely a matter of headlines
that create the perception and quite how one addresses the issue
of headlines I am afraid I do not suppose I have an answer to
and I do not suppose anybody else does. I think perhaps the more
serious issue is whether there are professionals, like teachers
and others, who feel that they are under threat from a perceived
compensation culture and I am not sure that the two of us would
say anything very different from what you have heard from our
colleagues from The Law Society and other organisations today.
I think our collective view would be that if there is a risk-averse
culture out there it is probably caused by things other than a
fear of claims for compensation. You have heard, for example,
one gentleman talk about concerns about prosecution. I think
that is something that found its way into our submissions. Again,
one can only ever talk anecdotally, because of the sorts of conversations
one has with people just quietly from time to time, but undoubtedly
there are, for example, teachers who would be concerned about
possibly risking prosecution if they did not look after some children
properly in their care and a child died. One knows, of course,
that there would be inquests, and things like that, which could
certainly give rise to possible criminal sanctions. In terms of
what one does to deal with it, as I say, in terms of the perception
created by headlines, I simply do not know the answer and I am
not sure anyone does. So far as the other side of things is concerned,
our view, which we hope is not totally complacent, is that the
law does protect those in that position, teachers and others,
and will not find them guilty, as it were, of negligence if the
circumstances do not dictate that finding should be made.
Stephen Worthington: It is a pity
perhaps that when one gets a headline to the effect, for example,
that children cannot play conkers in the playground, one does
not know where it comes from, and then when one hears a headline
to the effect that a particular case has come before the court
the next day's newspaper seems never to tell us that the claim
failed. One sees what, at first sight, appears to be a ridiculous
claim going through the courts; one does not then discover that
actually it failed.
Q90 Chairman: Usually they have not
got a claim, have they, it is simply somebody feels that there
might be one?
Stephen Worthington: Often it
is a headline from a case which has been picked up and run through
the major newspapers, often a snippet from the case, which is
then thrown into relief, and yet, as I say, no indication of what
the final outcome of the trial was.
Q91 David Howarth: Can we return
to this question of Clause 1 of the Bill and just take up the
point that was raised earlier about its relationship with the
Tomlinson case and ask for your view of whether Clause 1 of the
Bill takes us beyond Tomlinson or just leaves us in the same position
in which Tomlinson left us?
David Foskett: As everybody knows,
the draftsman thinks that this reflects the existing law and,
from a superficial reading of it, certainly when I first looked
at it, I thought what difference does that make. I think one has
got to examine it perhaps a little more closely than that. When
we prepared our response I do not think we had checked to see
whether the expression "desirable activity" was one
which had appeared in any of the other cases that had been decided
over the last 10 years or so. I noticed I think in the APIL evidence
that they thought there had been one case in which it was referred
to, but I did a search over three of the major legal databases
this morning and could not find it anywhere. The only point of
that little story is, that means there is a new phrase there which
will require interpretation by the courts and, of course, it will
always be something the lawyers can always produce in arguments
one way or the other about what is desirable, it is true, and
of course the courts will have to decide. I think that the short
answer to the question is, it is not designed to change the law
but it could well have that impact because, for all the reasons
that we have set out in our paper and other people have set out
in theirs, it has such a strong subjective element to it. I am
afraid our general position is "if it ain't broke don't fix
it" and, again, I hope without sounding unduly complacent,
we feel that the present system, as the Better Regulation Task
Force said, sorts out the wheat from the chaff.
Q92 Chairman: Do you think that will
just open the way to cases hinging on whether scouting or paint-balling
are desirable or sufficiently desirable?
David Foskett: I think the short
answer to your question is, yes, it does open the way for that
kind of argument. One has to be frank, that kind of argument is
available now. It does not require a clause in a bill for that
kind of argument, or even, as I think we hint at the end of our
paper, for evidence about what is socially desirable or desirable
from a leisure point of view; it does not prevent evidence of
that being given now, if a judge is prepared to receive it. I
think the way we would advance it simply is the danger of passing
this particular clause is that it may open the way for all sorts
of interpretations which in fact were not intended by those who
are promoting the clause itself.
Q93 David Howarth: Can I just come
back to the point that I put to the previous witnesses, that in
Tomlinson itself Lord Hoffman uses the phrase, and several of
us have used this phrase in the past out of context, the "social
value" of the activity. Would it be better to use that phrase
rather than the new phrase put into Clause 1?
Stephen Worthington: When you
put the question I was reminded of Dr Johnson, what is the difference
between a louse and a flea. I think probably our view is that
neither of the phrases is terribly good and is likely to bring
forward satellite litigation as to the meaning of it. It seems
to me that the whole point of what Lord Hoffman was saying, whatever
wording he used—social utility, social value, desirable
activity—is that the courts will look at all the factors
and take them into account when deciding whether or not there
has been a breach of duty. Richard Langton said that on different
facts in Tomlinson, for example, children playing in a canoe,
the result might have been different and I respectfully agree
with that. The whole point about Tomlinson was that what the House
of Lords was saying was that you do not have to tell an adult
that it is dangerous to dive into shallow water, and therefore
no breach of duty.
Q94 David Howarth: Could I come to
another point in Tomlinson, where Lord Hoffman talks about employees
and the question about them having choice or no choice and the
law there; is there any danger that Clause 1 might change the
law about employees?
Stephen Worthington: It is difficult
to say. Two of the problems with Clause 1 are, first of all, that
it relates only to claims in negligence, not as drafted to claims
in breach of statutory duty. For example, on the facts of Tomlinson
Clause 1 would not apply, because in Tomlinson the claim is brought
under the Occupier's Liability Act 1984, so Clause 1 would not
apply to that case. The second is, and I think probably this goes
to the issue of risk-averseness as well, that, particularly in
the field of employer/employee liability, so much depends upon
health and safety regulations, which have been brought in pursuant
to our obligations under the Treaty of Rome, that the result,
and again I am echoing what other people said a few moments ago,
is that there is a great deal of risk assessment. The moment you start
risk-assessing in order to protect your employees, that is, almost
by definition, going to have an effect on the way in which you
look at things generally. For example, if you are assessing risks
in a playground pursuant to your obligations to your employees,
that is going to have an effect on what you will let the children
do. To that extent, I think that Clause 1 does have an effect
and one has got to look at it from a different point of view.
Q95 Chairman: Possibly, if a child
might be injured in a way that was traumatising to the employee?
Stephen Worthington: Yes. I did
not actually mean it like that really. Suppose, for the sake of
argument, you have risk-assessed the playground and seen that
there is a potential danger which you feel you ought to deal with,
because you are taking risk assessment to its highest level, in
order to protect a teacher, that may mean that then a child cannot
carry out what under the Bill might be a desirable activity.
Q96 Chairman: Going back to a question
which was raised in the earlier session, in your written evidence
you said there is a strong feeling amongst practitioners that,
in the personal injury field, difficult cases are not now being
pursued, I am paraphrasing the words, for the reasons that we
explored earlier. Do you seriously think we could go back to the
old legal aid system in this area?
David Foskett: It is unrealistic
to expect that will ever happen and I do not think we are suggesting
that at all. I think all we were asked to do was to reflect on
the effect that CFAs have had, and, like so many aspects, there
are two sides to this particular coin, there are good features
and bad features, as you have heard already this afternoon.
One of the disadvantages may be that there are some cases which
really ought to be brought perhaps, because they are hovering
on the 50% viability threshold, but which now would not find a
solicitor to pursue it, and that is a matter of view but that
perhaps is undesirable. There are other aspects of the CFA system
which are plainly desirable. They have weeded out some cases which
plainly should never be brought, they also do have some costs
and balances, as again you have heard from various witnesses at
various times, so it is a feel, though it is very difficult to
have a very clearly-defined view.
Q97 Chairman: Do you think that these
are rather rare cases where there is an important point to be
established, or simply deserving individuals, where the negligence
element may be in question?
David Foskett: When I was addressing
you, I was probably thinking of that, the deserving case. One
of the concerns, obviously, is that the less throughput of cases
there is through the courts of course the less opportunity the
courts have to either develop the common law or reign it in, as
the case may be, and that is a serious point. As you will have
seen from the various statistics that we provided you with, and
others have as well, there has been a huge downturn in the number
of cases being heard by the courts and you can see the way the
pie-chart is down over the last 10 years or so.
Stephen Worthington: One of the
problems with the CFAs, I think, is that solicitors have to take
a quick view on the available information. One of the benefits
of the legal aid system was that a solicitor could say to the
Legal Aid Board "I think there might be something in this
case. I think it bears investment of some money while we investigate
it and then I'll be able to give you an opinion as to whether
or not it ought to proceed." That tends not to happen, I
think, in a lot of CFA cases. A view is taken on a fairly sparse
amount of information, in many cases.
Q98 Chairman: For deserving cases,
there is scope for some pro bono involvement?
David Foskett: Yes, around these
margins.
Stephen Worthington: Yes, there
may be, if you can persuade lawyers to do it on that basis.
Q99 Chairman: Turning to the media
issue, ought we to take seriously this concern amongst some quite
well-heeled newspaper corporations that the disproportionate costs
they can face under CFAs are a deterrent to free speech?
David Foskett: Shall I try to
field that; neither of us is a defamation lawyer so I am afraid
that what we say is very much from an amateur viewpoint. I did
have quite a long conversation with a couple of fairly senior
people in the field, so I hope what I am about to say makes a
degree of sense, but if it does not then I hope the transcript
will forgive me. Yes, I think there is a concern, in monitoring
high-profile cases, which I am sure the Committee know about and
probably represents the origin of the question. It is the
case where there is no "after the event" insurance,
as I understand it, and the newspaper loses, that they find themselves
picking up a huge tab at the end of the day, if there has been
a 100% uplift and, of course, the costs involved in defamation
proceedings historically have always been high. The short answer
to your question is that there does seem to be a problem which
has been highlighted with a lot of these cases. I think you heard
from Master Hurst last week about efforts that are being made
at the level of the courts to try to deal with this and that capping,
I think was the expression that was used, as I understand it,
is becoming a rather more frequent requirement now at a fairly
early stage, where there is no "after the event" insurance
involved. There is, I understand, a standard direction now which
requires a specifically-designated Master to consider the issue
of the capping of fees, and indeed I understand that orders are
beginning to be made. Whether that will be a full solution to
the problem I simply do not know and I am not qualified to say,
but at least it shows that the problem has been appreciated and,
as far as I can see, is being addressed.
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