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Baroness Hollis of Heigham: My Lords, only in the same case should it be taken into account or where it is a similar case.
Lord Mackay of Ardbrecknish: My Lords, I believe that the noble Baroness really means "issue" rather than "case"--the same or similar issues. The noble Baroness's amendment introduces "similar issues", whereas the noble Earl's amendment deals only with "same issues". I shall deal with both of those in turn.
I listened carefully, as I always do, to the debate in Committee. I considered very carefully what had been said. I discussed those matters with my officials and legal advisers and I discovered, as the noble Earl has
done, that this is perhaps a rather more complex business than we all considered or thought in Committee.The noble Earl has raised with me the question of estoppel and how that affects the Bill as it stands. The estoppel principle does not apply because of another legal principle. That other legal principle, which in my halting Latin I shall attempt to explain to your Lordships, is that of res inter alios acta alteri nocere non debet, which is usually abbreviated to res inter alios acta. One or two of your Lordships may require a translation and I am happy to try to explain what it means. It can be translated as: a matter carried out between others ought not to harm another person. It means that a person who was not a party to earlier legal proceedings and therefore did not have the opportunity to give his own evidence or to cross-examine witnesses should not be bound by the decision of the court in later proceedings to which he is a party.
I have attempted to put it more simply and more mathematically by saying that, if a case takes place between A and B, the decisions in that case cannot bind a case between A and C or B and C. In this case, A and B are the victim and the compensator and C the Secretary of State. Therefore, it follows that if an appeal tribunal were bound to follow the decision of the court, the res inter alios acta principle would be compromised. The Secretary of State would not have been heard by the court and any evidence he presented to the appeal tribunal could not affect the decision taken by the court. This means that the Secretary of State would be denied the opportunity to comment on matters of direct interest both to him and to the taxpayer.
The Secretary of State cannot join in proceedings between plaintiff and defendant and it would not be appropriate to change the law to allow him to do so because, quite rightly, the benefit recovery process is not invoked until liability has been established and compensation awarded. If the Secretary of State were given the right to be heard, the department and the court would be embarking on a course of action which could later prove pointless if negligence was not proved. Furthermore, additional costs would have been incurred to no good effect.
I should re-emphasise that Clause 12 of the Bill as drafted does not provide a licence for appeal tribunals to ignore decisions of the courts. Subsection (3) provides that the tribunal must take into account any such decision which relates to the same or any similar issue arising in connection with the accident, injury or disease. If the tribunal does decide in favour of the Secretary of State, it will have to justify that decision. Furthermore, as I made clear in Committee when discussing a similar amendment, it is also important to remember that the decision of a medical appeal tribunal can be the subject of an appeal to a social security commissioner, with leave and on a point of law. If the appeal tribunal has reached a decision which could be seen as novel or unusual, it is entirely possible that leave would be granted. I should add that if the appeal tribunal were to refuse leave, it may be sought direct from the commissioner.
The noble Earl asked me about the words "must take into account", which is the phrase in the Bill. That phrase means simply that the tribunals must evaluate evidence and they must give it due weight. As I have explained, if it is felt that they have not done so, there are procedures in place for appeals against that.
The noble Baroness, Lady Hollis, suggested that the evidence to the tribunal may be weaker than the evidence to the previous court. If that evidence were weaker, as I have said and as the Bill provides, the tribunal must take into account what was decided by the other court. Frankly, one would therefore expect the tribunal to give the appropriate weight to the heavier evidence; that is, the evidence given at the other court. That is the position and I hope that I have answered the points raised about the word "must".
I have explained also why it would be undesirable for a medical appeal tribunal to be bound by the decision of a court on the same issue. The effect of Amendment No. 11 would be to go further and bind a medical appeal tribunal not just to the same decision but to a similar issue as well.
Amendment No. 11 would increase the number of cases going before an appeal tribunal in which the Secretary of State's evidence would have no effect on matters of direct interest to him. Furthermore, in rendering ineffective the Secretary of State's evidence in cases similar to that decided by the court, it could also generate considerable argument over whether the issue in question was similar to that decided by the court or not. One might have two different sets of argument. I believe that that would prove a fertile ground for disputes and increase the number of benefit recovery decisions reaching a commissioner. I believe that continuing the existing arrangements in this area is the right approach. The arrangements strike the right balance. Fewer than 100 recovery of benefit appeals are heard in any given year. Many of them are indeed complex cases and frequently involve court decisions.
A typical situation where the appeal tribunal will differ from the courts is one in which compensation has been awarded on the basis that the court decided that the effect of a particular injury should no longer exist after a certain length of time but where the victim, nevertheless, continues to claim benefit in respect of such effects for some time beyond that date. In such a situation the tribunal may decide that the period during which recoverable benefits have been paid is as specified in the certificate from the Secretary of State and not the period for which compensation has been awarded.
As I indicated, not many cases are involved but they are often complex and unusual. However, they do involve this important legal principle which I am advised takes the lead--I am not sure whether "precedent" is the right word; indeed, I am always cautious when I start using semi-legal phraseology--over the principle which the noble Earl posed to me. As I explained, that principle is that if, in the case of this particular issue, the plaintiff and the defendant are in court, the Secretary of State is not there, has no right to be there and no locus.
However, if a decision is reached at that point and it is subsequently decided to go to an appeal tribunal regarding what is on the certificate, then, in that case, the Secretary of State is a party and it would be the Secretary of State and "A" or the Secretary of State and "B" who would be involved. That is the point of the legal principle which says that that case, which is not the same as the original one because it is not between the same two parties, does not have to take into account or have to abide by the decisions of the other court. With that explanation of what I accept is a legal point, I hope that your Lordships will see the justice of my cause and that the amendment will be withdrawn.
Lord McCarthy: My Lords, before the Minister sits down I would like to raise one further point. The noble Lord introduced the principle of what I might call "third party immunity". However, if I follow the Minister correctly, all the examples put forward have been drawn from this field. My noble friend Lady Hollis asked the Minister whether he could give other examples. Surely such a principle ought to be operating in tax law, in health and safety matters, and so on. If that is the case, can the Minister give further examples?
Lord Mackay of Ardbrecknish: My Lords, it does operate. Indeed, I discussed a similar matter with my officials this morning. As I said, I am always reluctant to get too closely involved in such cases. However, we discussed an interesting criminal case in which the Crown could prosecute and where, perhaps, the case does not go any further or where a not guilty verdict is reached but where the person involved could then sue the person who was the accused. That could actually become a civil case where another decision could be made.
There is another similar case, the details of which I do not have with me. It took place in the late 1940s and was subsequently superseded by a change in statute law to allow for a different circumstance to apply. However, I can assure the noble Lord, Lord McCarthy, that the maxim of res inter alios acta is one of very great duration. It appears in both Roman and canon law and was indeed invoked in common law as early as the reign of Edward II. It prevails to this day as an important point of principle. The noble Baroness may laugh at that if she wishes, but, as I understand it, the importance of English common law is that it does have a very long and distinguished history. We must therefore be careful before we turn it over. However, the Secretary of State, who has some interest as, indeed, does the taxpayer, in such issues, is not a party to the original decision between the defendant and the plaintiff. Therefore, as I said, he has no locus to be there and I do not believe that either I or your Lordships would want him to be there because it would complicate the issue. This could be a subsequent decision which may be made in a dispute between one of the parties and the Secretary of State. In that case, this common law principle is the one which I believe we should abide by.
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