Examination of Witnesses (Question Numbers
1-19)
MR DES
HUDSON, MR
DAVID MARSHALL,
MR ANDREW
RITCHIE QC, MR
TIMOTHY PETTS
AND MR
TIM EVANS
19 JANUARY 2010
Q1 Chairman: Good afternoon, gentlemen.
It would be helpful for the record if we could go along the row
and you identify yourselves.
Mr Hudson: I am
Desmond Hudson, Chief Executive of the Law Society.
Mr Marshall: I am David Marshall,
I am a partner in a private practice firm of solicitors and I
am on the Civil Justice Committee of the Law Society.
Mr Ritchie: I am Andrew Ritchie
QC; I am representing the Bar Council and Personal Injury Bar
Association.
Mr Evans: Timothy Evans, barrister,
Maitland Chambers, representing the Bar Council.
Mr Petts: Timothy Petts, barrister,
also representing the Bar Council.
Chairman: Thank you very much. We are
grateful to you for bringing us your evidence and anything you
feel, after the session, that we ought to have picked up and have
not from what was in your mind or you said, do not hesitate to
get in touch with us afterwards. The purpose of this exercise
is to look at the Draft Civil Law Reform Bill and to identify—not
necessarily to resolve, but simply to identify—issues which
could be better resolved by further consultation before a final
Bill is produced and which the House itself may have views on
and may want to come to conclusions about. Indeed, some of these
issues I do not think we would presume to conclude on behalf of
members in general; some of them are quite sensitive on almost
emotive issues. We will start with damages under the Fatal Accident
Act 1976. There are a number of questions that arise from that,
one in particular that Dr Palmer wishes to pursue.
Q2 Dr Palmer: The Law Commission
recommended a new category of claimant cover. I will give you
the full quote, although you are probably familiar with it: "Any
person being wholly or partly maintained by the deceased immediately
before the death or who would, but for the death, have been so
maintained at a time beginning after the death". The Draft
Bill simply reads: "Any person who is being maintained by
the deceased immediately before the death". What is your
view of this more restrictive reading?
Mr Ritchie: May I lead on that,
Dr Palmer. We are troubled by the word "immediately"
for this practical reason. If a man is injured in a road traffic
accident and is in hospital for six months and, as a result, does
not gain his usual income and hence is not supporting A, B or
C, it is possible that the words "immediately before the
death" could be interpreted in a way to exclude persons who
would otherwise be dependent, were being maintained before the
accident but not before the death. I think that needs to be looked
at bit more carefully and I suggest that Parliament considers
the words "immediately before the accident" or "immediately
before the death" and resolve that.
Q3 Dr Palmer: That is an interesting
response; I think it is not quite what we had in mind but it is
a valid point as well. Do you have a view on persons who had a
reasonable expectation of being maintained at a time beginning
after the death?
Mr Ritchie: These are persons
who do not all into any of the other categories which pre-exist
and those categories broadly are marriage, blood ties or stable
relationship (co-hab relationship), so we are talking about people
outside those categories.
Q4 Dr Palmer: It also excludes children
and IVF embryos.
Mr Ritchie: Yes. It seems to me
that if the evidence that can be brought before the court is that
such a person would, on the balance of probabilities, have been
supported by the deceased, then there is no reason for Parliament
to want to exclude such a person.
Q5 Dr Palmer: Can you give us some
examples of who you have in mind?
Mr Ritchie: I suppose it is the
unborn child of the wife of the deceased.
Q6 Dr Palmer: We are advised that
that is already covered. Any child in utero or following
IVF would be covered by the existing list.
Mr Ritchie: Because of the blood
ties.
Q7 Dr Palmer: Yes.
Mr Ritchie: So a child to be born
would be covered under "child".
Q8 Dr Palmer: That is right, yes.
The Ministry of Justice's argument, which we are seeking to probe,
is that we are creating a vague category without really knowing
who we mean and we will encourage all kinds of speculative claims,
all of which will actually lose.
Mr Ritchie: These are claims by
mates, mates who might have been supported (by "mates"
I mean friends who might have been supported) who would come forward
and say, "Well, we'd always agreed that in a couple of years'
time we would live together as friends, go to football matches
together and have a non co-habitee relationship", although
they are living in the same house. That is the sort of category
that one might imagine.
Mr Marshall: Or possibly younger
people who are not blood children who live within the family,
for example, and the deceased may well have maintained them but
they were not naturally his children.
Q9 Chairman: Nephews and nieces,
for example.
Mr Marshall: Yes, and other family
members. It may be we would have to think about specific categories
that would be of assistance to that.
Dr Palmer: Yes, because I think the current
proposal would allow the people who were being maintained by the
deceased; what we are looking for is whether there is a group
we should worry about which was not being maintained but had a
reasonable expectation of it.
Q10 Chairman: Another category the
Law Commission had in mind that the Government has rejected is
the court considering the facts of an engagement when assessing
damages on the basis that if you got involved in that, it would
lead to unnecessary intrusion into the bereaved's personal life.
Do you agree or should the Law Commission's view have prevailed?
Mr Ritchie: On behalf of the Bar
Council, I am reasonably comfortable ignoring the engagement because
you already have the marriage ties, the blood ties—quite
broad up and down—and the stable co-habiting relationship
of two years. This category would be less than a stable co-habiting
relationship for two years but with an engagement. What is the
problem, because if you already have the new category you are
introducing—which is maintained immediately before—then
engagement does not add anything, does it?
Q11 Chairman: If you had been engaged
to someone with the prospect of living with that person, are you
saying they are covered by the maintenance prospect anyway?
Mr Ritchie: Yes.
Q12 Mrs James: The Government rejected
the Law Commission proposal that the court could consider the
fact of an engagement when assessing damages. Do you agree? Is
this an inevitable aspect of our adversarial court system?
Mr Ritchie: I do not think the
engagement adds anything to the category that is being suggested.
I think the categories are sufficient and the new category is
also sufficient. Shall we take the relationship where the future
husband has a largish earning potential and the future wife is
intending pretty soon to start a family and the future husband
has not yet moved in with the future wife, despite the engagement,
so there is no immediate support.
Q13 Chairman: They might take a traditional
view of these matters.
Mr Ritchie: I am just taking an
example. There are many others, but I take that one because it
may be familiar with some around here.
Q14 Mrs James: They may consider
it an unnecessary intrusion.
Mr Ritchie: This is a category
where there is no immediate maintenance going on but because of
the engagement there is a likelihood of maintenance in the future
in those circumstances and the worry is whether that category
is going to be excluded because they are not yet married. You
can see some force in that. Where is the intrusion? What would
be said is, "Here's my ring; here are a couple of relatives
who know we were engaged. I have proven that we were engaged and
hence there is a foreseeable dependency that was going to arise."
The difficulty with that is Parliament under this Bill is also
bringing in later in the Bill and exclusion based on that fact
that there is a prospect of re-marriage or a fact of re-marriage
or co-habiting with somebody else so you would have, in effect,
investigations in between the death and the trial of whether this
engaged person had started a new relationship and, if so, whether
the damages would be removed as a result of starting a new relationship.
I think that is where the intrusion would come. You would entitle
them to damages due to engagement and then you take them away
because they started a new relationship. It is a slightly bizarre
position.
Mr Hudson: From the Law Society's
perspective, we would endorse all of the points made. I think
that last one is an interesting one because if there is any credibility
in the argument of intrusion, it must be in those sorts of circumstances.
Q15 Chairman: The insurance company's
lawyer would be trying to claim that this was spurious because,
although there may have been an engagement, she has now got engaged
to somebody else.
Mr Hudson: Precisely, and therefore
the natural expectation one would have that the engagement would
lead to a marriage and therefore financial dependency, et cetera,
could be overturned. You could see that as being potentially a
very hard fought argument and it clearly would involve sensitive
private issues.
Mr Ritchie: There is more to be
said on the later question in the sections about remarriage and
co-habiting taking away damages.
Q16 Chairman: Would you like to say
something about that now?
Mr Ritchie: Is it convenient to
address that now?
Q17 Chairman: Yes.
Mr Ritchie: I have one further
point on eligibility; may I just make that before we go to the
next one, Chairman?
Mr Hudson: I too want to make
a point on eligibility briefly.
Mr Ritchie: On eligibility—which
was the first issue that has been raised—I am troubled by
the cats' home point because the word "person" has been
used—"person being maintained"—and there
is no definition of person. I give money to Amnesty International
each year so they are dependent on me to a certain extent. They
are a legal person and they would be entitled to make a dependency
claim under the new criteria as a legal person. You may wish to
define "person" as a human being rather than the cats'
home or Amnesty International.
Q18 Chairman: That is presumably
an unintended consequence that you foresee from the drafting.
Mr Ritchie: Exactly. You might
say that you do intend for charities to be able to claim under
this Act because they are dependent, but you might not. I think
that should be thought about.
Q19 Mrs James: It is quite easy to
insert that definition.
Mr Ritchie: Exactly, the definition
of a person—two legs or whatever—rather than a cats'
home.
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