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Lord Goodhart: My Lords, the noble and learned Lord has indeed succeeded in that purpose. I am most grateful to him for having taken the original draft away and looking at it again. It seems to me that these amendments deal with the problem that I raised in Committee.
On Question, amendment agreed to.
The Lord Chancellor moved Amendments Nos. 130 and 131:
On Question, amendments agreed to.
The Lord Chancellor moved Amendment No. 132:
Page 12, line 36, leave out from ("Commission") to end of line 40.
Page 13, line 2, at end insert--
("(7) Nothing in this section applies to information furnished to a person providing services funded as part of the Community Legal Service or the Criminal Defence Service by or on behalf of an individual seeking or receiving such services.").
After Clause 21, insert the following new clause--
(".--(1) The Lord Chancellor may give guidance to the Commission as to the manner in which he considers it should discharge its functions.
(2) The Commission shall take into account any such guidance when considering the manner in which it is to discharge its functions.
(3) Guidance may not be given under this section in relation to individual cases.
(4) The Lord Chancellor shall either--
(a) publish, or
(b) require the Commission to publish,
any guidance given under this section.").
On Question, amendment agreed to.
Clause 23 [Orders and regulations]:
The Lord Chancellor moved Amendment No. 133:
On Question, amendment agreed to.
The Lord Chancellor moved Amendment No. 134:
[Amendment No. 135, as an amendment to Amendment No. 134, not moved.]
On Question, Amendment No. 134 agreed to.
The Lord Chancellor moved Amendments Nos. 136 to 139:
On Question, amendments agreed to.
The Lord Chancellor moved Amendment No. 140:
On Question, amendment agreed to.
Clause 27 [Conditional fee agreements]:
The Lord Chancellor moved Amendment No. 141:
The noble and learned Lord said: My Lords, this group of amendments makes changes to Clause 27 which I undertook to consider further in response to a number of amendments moved in Committee.
In Committee the noble Lord, Lord Kingsland, moved an amendment with the intent of ensuring that there could be no doubt that a conditional fee agreement made between a barrister and solicitor on behalf of a client was lawful and enforceable. As I explained in Committee, the concern arises because barristers do not usually accept instructions directly from the public. A barrister is instructed by a solicitor on behalf of a
The first and third amendment in this group seek to meet that concern by amending the description of a conditional fee agreement so as to avoid referring to "client". The first amendment in this group changes subsection (2)(a) of Clause 27 so that it will read as follows:
The second amendment in this group fulfils the undertaking I gave to the noble Lord, Lord Meston, whom I am pleased to see in his place, to consider the terms of his amendment to ensure that conditional fee agreements may not be allowed in any form of family proceedings. I do not think that I need to say more now than I did in responding to the noble Lord in Committee save to say that it pleased him when I accepted his amendment in principle and hope he will be equally pleased to see that the terms of his amendment have also met with the approval of the parliamentary draftsman.
The fourth amendment in this group reproduces that moved in Committee by the noble Lord, Lord Kingsland. It seeks to increase the discretion given to the Lord Chancellor as to which bodies in addition to the designated judges, the General Council of the Bar and the Law Society he wishes to consult before he makes an order specifying proceedings in which conditional fee agreements may be made. I agree to consider his amendment further because I believe that the provision contained in the proposed Section 58(4) of the Courts and Legal Services Act 1990 inserted by Clause 27 is too restrictive. I am pleased to say to the noble Lord, Lord Kingsland, that I am able to accept the terms of his original amendment too.
I hope that I have managed to meet the concerns of the noble Lords, Lord Goodhart, Lord Meston and Lord Kingsland, with these amendments. I beg to move.
Lord Kingsland: My Lords, I am extremely grateful to the Lord Chancellor for responding to my amendment in the way that he has.
Lord Meston: My Lords, I am likewise grateful to the noble and learned Lord for responding so promptly and completely to the concerns of the family lawyers, who were worried about the terms of the Bill as originally drafted.
Lord Goodhart: My Lords, I, too, am grateful for these amendments.
On Question, amendment agreed to.
Lord Hunt of Wirral moved Amendment No. 142:
The noble Lord said: My Lords, this amendment concerns the question of conditional fee agreements. It seeks to ensure that they will not take the place of already existing insurance cover for legal expenses.
Conditional fee arrangements are of course "after the event" insurance. However, many people have "before the event" insurance but often do not realise that fact. As my noble friend Lord Renton just pointed out to me, my amendment might have been easier to read had "before the event" been in inverted commas. I should be happy to accept that amendment. I stress that the amendment seeks to ensure that conditional fee agreements must not be used--on the original Marshalled List the word "not" was omitted--in substitution for before the event legal expenses insurance cover.
I very much support the principle of conditional fee agreements, but they must be only one of the options to be considered by a claimant. A claimant's solicitor has to look at the wider picture and to recognise that there is a potential conflict of interest because there will undoubtedly be a situation where a claimant's solicitor will secure additional remuneration if a conditional fee agreement is preferred. Yet, as I understand it from recent figures, there are 17 million before the event legal expenses insurance policies in existence. Often people do not realise that. These policies may be attached to domestic, household, car or even credit card insurance policies. I very much hope that there is some way in which we can ensure that where people already have this cover the claimant's solicitor is put under an obligation to see that it is that cover which is used to make sure that the individual is properly protected rather than a conditional fee agreement.
I speak on behalf of a number of solicitors who specialise in this area of insurance, as I have myself in the past. Their organisation is the Forum of Insurance Lawyers (FOIL), the president of which, Martin Bruffell, who is an active practitioner and a partner in the well-known insurance litigation firm of
I hope that the noble and learned Lord the Lord Chancellor will not only sympathise with the purpose behind the amendment but will actively seek ways in which my concerns can be addressed. I beg to move.
Page 14, line 21, after ("power") insert ("of the Lord Chancellor").
Page 14, line 22, at end insert--
("(1A) Before making any remuneration order relating to the payment of remuneration to barristers or solicitors the Lord Chancellor shall consult the General Council of the Bar and the Law Society.
(1B) When making any remuneration order the Lord Chancellor shall have regard to--
(a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies,
(b) the cost to public funds, and
(c) the need to secure value for money.
(1C) In subsections (1A) and (1B) "remuneration order" means an order under section 7(3A), 13(2A) or 14(3A) which relates to the payment by the Commission of remuneration--
(a) for the provision of services by persons or bodies in individual cases, or
(b) by reference to the provision of services by persons or bodies in specified numbers of cases.").
Page 14, line 22, at end insert--
("( ) No directions may be given by the Lord Chancellor to the Commission under this Part in relation to individual cases.
( ) Any directions given by the Lord Chancellor to the Commission under this Part may be varied or revoked.
( ) The Lord Chancellor shall either--
(a) publish, or
(b) require the Commission to publish,
any directions given by him under this Part.").
Page 14, line 23, leave out ("Regulations") and insert ("Orders, regulations and directions of the Lord Chancellor").
Page 14, line 25, after ("2") insert ("or 9 or paragraph 6(3) of Schedule 3").
Page 14, line 26, leave out ("4") and insert ("5").
Page 14, leave out line 36.
Page 15, line 28, leave out from second ("agreement") to ("or") in line 31 and insert ("with a person providing advocacy or litigation services which provides for his fees and expenses,").
"(2) For the purposes of this section and section 58A--
(a) a conditional fee agreement is an agreement with a person providing advocacy or litigation services which provides for his fees and expenses or any part of them to be payable only in specified circumstances."
The revised provision sets out more clearly the firm intention that any lawyer, whether a barrister or solicitor, may offer his services in specified proceedings as provided under Clause 27 and that any agreement made in accordance with Clause 27 and regulations made under it is lawful and enforceable. The third amendment in this group is consequential to the redrafting of Clause 27(2)(a) where the use of the term "client" has now been removed.
6.15 p.m.
Page 15, line 45, after ("agreement") insert--
("( ) it must not be used in substitution for before the event legal expenses insurance cover;").
"It seems to us that [conditional fee agreements] are being encouraged because it allows lawyers to add an extra sum to their bill if they're successful. That way, they get more money for the same job.
We believe it is fraudulent, or even negligent, for a solicitor not to look at all possible funding options before advising a claimant on what route they should take".
I know that Martin Bruffell and his officers in FOIL are raising with the Law Society the whole question of a new professional conduct rule which would apply here.
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