Response by Sir Henry Brooke to the Ministry
of Justice's Civil Law Reform Bill Consultation Paper
Before I respond, I would like to start by saying
how much I deplore the fact that it has taken such an immensely
long time for the Law Commission's recommendations on reforming
the law of damages to come before Parliament in the form of a
draft Bill. As a common lawyer who had had much practical experience
of personal injuries law (unlike most Chairmen of the Commission)
I remember Lord Mackay impressing on me how much importance he
paid to the then current law reform project on damages when he
persuaded me to become Chairman of the Commission in November
1992. Most of the proposals in this draft Bill were obvious candidates
for reform at that time, over 17 years ago. I hope that at
a time when Parliament is intent on burnishing its image and re-establishing
its credibility with the public, it will take effective steps
to ensure that comparable delays in enacting worthwhile measures
of law reform never occur again.
To some extent we have all been here before.
During my chairmanship (January 1993-Decmber 1995) I was in close
dialogue with Parliamentarians of all parties in both Houses,
and we succeeded in seeing 13 Law Commission law reform proposals
enacted in 14 months. Parliament then went back to its old
ways, and I greatly welcome this opportunity for pre-legislative
scrutiny as a harbinger of much better things in future. I remember
getting myself invited in two successive years to a session with
the Home Affairs Committee of the House of Commons, when I succeeded
in persuading them, I think, that making the law fairer and more
simple in mundane matters of significant importance to their constituents
was every bit as important to their constituents as many of the
policy-driven legislative proposals which consume so much parliamentary
time. I was able to demonstrate historically that Law Commission
Bills, having been so expertly prepared, took up very little Parliamentary
time at all.
I now respond to the Questionnaire.
Do you have any comments on the draft clauses
of the Bill relating to the law of damages?
1. Fatal Accidents
I agree with the proposals in clauses 1-4 of
the draft Bill. It is difficult to do complete justice in all
cases involving cohabitants, but a line must be drawn somewhere,
and I know no reason to alter the "two year" requirement,
although this may do injustice in some cases where there is a
loving, committed relationship of cohabitation lasting just less
than two years and the surviving partner has no claim under the
Act.
As to bereavement damages, it is high time the
law was altered to give a claim to the surviving "two-year"
cohabitant of the deceased. More than 80% of the respondents to
the Law Commission's consultation paper supported this change
in the law, and great unhappiness and hardship have been caused
unnecessarily because Parliament has not acted sooner on the Law
Commission's 1999 recommendation. In recent years such claimants
have been driven to invoke Article 8 of the European Convention
of Human Rights to establish their entitlement to bereavement
damages, and arguments of this kind, to put right an obvious injustice
in statute law, simply add to the costs of litigation every time
the issue has to be argued. I had recent experience of such a
case, where the young mother of the deceased's child was outraged
that the law did not permit her to recover any bereavement damages
unless she tried to go by the Human Rights Act route.
I remember at the time being surprised by the
Law Commission's recommendation that siblings should recover bereavement
damages in all cases (their award being equal to the awards to
spouses etc and minor children), subject to an overall statutory
inflation-adjustable cap of £30,000 on the total award.
On the other hand, where there is no other candidate for bereavement
damages, substantial injustice may be done if a sibling who is
devastated by the deceased's death (perhaps because they lived
together, as unmarried siblings often do) has no claim under the
Act, as the Government proposes. I hope this point will be carefully
scrutinised before the Bill becomes law.
2. Gratuitous Care
I agree with these proposals. The Law Commission
received powerful submissions from "the vast majority of
its respondents" to the effect that the House of Lords' ruling
in Hunt v Severs, however logical it may have been, should
be reversed. Its report was published in November 1999, and it
is scandalous that this injustice has been allowed to continue
for a further 10 years before a correcting Bill is put before
Parliament.
3. Aggravated damages etc
It is clearly sensible to include the tidying-up
provisions of Clause 9. I regret the fact that the Government
is not willing to take this opportunity to tidy up the law in
relation to exemplary damages, which was a law reform project
commenced in my time. Instead, a lot of litigants' money will
have to be spent before the Supreme Court at last has an opportunity
to straighten out those parts of the decision in Rookes v Barnard
which have rightly not been followed by the courts in comparable
common law countries.
Do you agree with the impact assessment on the
proposed reforms relating to the law of damages at Annex C?
No comment.
Do you have any comments on the draft clauses
of the Bill relating to the setting of pre—and post-judgment
interest?
Long experience in the courts makes me very
suspicious of any provision which gives the Lord Chancellor an
apparently unfettered power to specify interest rates at a time
of his choosing. The rate of interest on judgment debts was fixed
at 8% in 1993 and has not been altered since. The Law Commission
was critical of this continued failure to take action in 2004 and
interest rates have plunged further since then.
A similar story is told when one considers the
fate of the arrangements for specifying the appropriate discount
rate to be adopted for the accelerated receipt of future payments
in personal injury cases. In my time the Law Commission recommended
that instead of the point being expensively argued in every case,
the Lord Chancellor, who was then head of the judiciary, should
fix by order the appropriate discount rate from time to time.
This was clearly a judicial act. His powers in this respect were
retained by him at the time of the enactment of the Constitutional
Reform Act 2005, so that what was intended to be a judicial act
now became determined by the executive. It is universally accepted
that with interest rates as low as they are now the discount rate
of 2.5% is doing very significant hardship to grievously injured
people (because their compensatory damages will all be used up
a considerable time before their death) but the Lord Chancellor
has taken no steps to correct this. Indeed, I am aware of a recent
decision in the courts of Guernsey where a court, not governed
by the Lord Chancellor's order under the Damages Act, considered
on the evidence (which included the evidence of the former Government
Actuary) that a 1% discount rate was more appropriate, thereby
substantially increasing the plaintiff's damages for future care.
The Law Commission said in its report:
"3.25 There is a need to balance two
objectives. On the one hand, the rate should reflect the commercial
reality of borrowing and investing. On the other hand, litigants
want a single clear rate, which they can discover easily and which
does not change too often. It is important that the rate should
be more flexible than the judgment rate (which has not changed
for a decade). However, the rate should be less flexible that
the bank rate itself, which changes at unpredictable times, so
that parties and their representatives may not be alerted to what
the current rate is.
3.26 This suggests a rate that changes on
a set date each year. The rate should be clearly publicised on
the Court Service website, on posters in court offices and in
the legal press so that lawyers and litigants are aware of what
it is."
I do not know why the Government did not follow
the Commission's advice that the appropriate rate should be reset
annually. I fear it may be driven by administrative convenience.
I hope that Parliament will probe the Government's reasons in
this respect, because otherwise there is a strong likelihood that
interest rates awarded by the courts will again get seriously
out of kilter with interest rates in the world outside the courts.
Subject to this, I agree with the proposals
in this part of the draft Bill.
In particular, do you have any views on how the
concept of additional damages pursuant to the 2004 Directive
should be expressed in terms appropriate to Scots law?
No comment.
Do you agree with the impact assessment on the
proposed reforms relating to the l the setting of pre—and
post-judgment interest at Annex D?
No comment.
Do you have any comments on the draft clauses
of the Bill relating to the distribution of estates of deceased
persons?
No.
Do you agree with the impact assessment on the
proposed reforms relating to the law of succession at Annex C?
No comment.
Do you have any comments on the draft clauses
of the Bill relating to rights of appeal?
I am a little uneasy about there being no recourse
at all to the High Court if an Inn refuses a student admission
to the Inn on grounds, for example of bad character. After all
his/her whole future career will evolve around this decision,
and there may be human rights implications if he/she is completely
barred from access to a court. I sat as Visitor to one of the
Inns nearly 20 years ago in a case where a man had had a
serious criminal record when he was about 20 and served terms
of detention and imprisonment. 20 years later he received
glowing references from the law faculty of the reputable university
at which he had been studying as a mature student, so much so
that his professor was willing to travel 200 miles to London
to give evidence at the hearing.
I directed the Inn to reconsider the case on
the basis that the Consolidated Regulations then contained a blanket
ban on admission to the Bar in such a case, not allowing for any
discretion to be exercised, which I considered to be unlawful.
In the event the Inn was willing to admit him and the Regulations
were changed.
I certainly would not wish to see the High Court
flooded with unmeritorious applications, but I do think there
ought to be some opportunity for recourse to the High Court in
a case which raises an important point of principle. If the avenue
of appeal is to be comprehensively blocked at the level of the
Qualifications Committee of the Bar Standards Board, they may
be seen to have a tendency to wish to uphold the letter of their
regulations. Perhaps the Committee should have a right (which
should be final) to grant permission to appeal to the High Court
in an appropriate case.
Apart from this, the proposed changes are long
overdue, and I support them.
Do you agree with the impact assessment on the
proposed reforms relating to rights of appeal at Annex C?
No Comment.
ABOUT ME
My name is the Rt Hon Sir Henry Brooke. I am
responding to this consultation paper as a retired Lord Justice
of Appeal and a former Chairman of the Law Commission. My address
is Fountain Court, Temple, London EC4Y 9DH. I would like you to
acknowledge receipt of my response.
25 January 2010
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