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I take note of his suggestion. As I do with all our deliberations, I will report back to the Lord Chancellor on this. I would have thought that his experience of the willingness of your Lordships to make exceptions, one after another after another, will make him think that giving such flexibility in the Bill will only encourage a constant stream of exceptions coming to his door.

We have thought very hard about this. We think that the architecture is right. We think that by going back to the system as it broadly was under the noble

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and learned Lord, Lord Mackay, repairs the damage that was done by the previous Administration-with the best of good will. I will report, and I will even tell the Lord Chancellor that it was an idea of the noble Lord, Lord Pannick, which I am sure will produce the appropriate response from the Lord Chancellor.

Lord Bach: I think we can almost see the response now.

Lord McNally: Amendment 139C, in the name of the noble Lord, Lord Beecham, seeks to amend Clause 45 to require the Lord Chancellor to make regulations to allow the recovery of ATE insurance premiums taken out to cover the risk of paying one's own disbursements within the relevant pre-action protocol period. As I have already made clear, the Government's position on ATE insurance is that it should no longer be recoverable from the losing party. Amendment 139C goes against the Government's reform and we will strongly resist it.

In the same vein, I cannot accept Amendments 136A to 136D, which would retain recoverability of success fees for judicial review, employers' liability claims, professional negligence and clinical negligence. I have touched on some of these issues before and I do not intend to detain noble Lords further by going into the details of each particular area or trying to assess which litigants should be classed as more deserving than others. As I have said, it would be invidious and unfair to set out exceptions for some claimants and not for others, and we do not intend to do so.

I urge the noble Lord not to press the amendments.

Lord Beecham: With my customary reluctance, I beg leave to withdraw the amendment.

Amendment 136A withdrawn.

Amendments 136B to 136D not moved.

Amendment 136E not moved.

Clause 45 : Recovery of insurance premiums by way of costs

Amendment 137

Moved by Lord Lloyd of Berwick

137: Clause 45, page 31, line 38, leave out from "policy" to end of line 33 on page 32

Lord Lloyd of Berwick: My Lords, this amendment is concerned with one aspect of clinical negligence cases: the cost of expert reports. It would not have been necessary if the House had accepted my noble friend Lady Grey-Thompson's amendment last week, but unfortunately it failed by a narrow margin.

Everybody, I think, agrees that the cost of expert reports at least should be recovered in one way or another. The trouble is that the Government set about it in the wrong way. In Committee on 16 January, I put forward some figures to show why. I did not expect that the noble and learned Lord, Lord Wallace of Tankerness, would deal with the figures there and then. However, I have to say that I did expect that I would get something rather better than what I got

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some weeks later, which said simply that the Government did not recognise or accept my assumptions. Nothing then happened for a further period of time, until 1 March, when the Government put forward their own alternative calculations.

On the following day, 2 March, the Government were given a detailed answer which showed that their calculations were simply wrong. On 7 March, the third day of Report stage, I again explained why, but on that occasion the noble and learned Lord, Lord Wallace of Tankerness, did not deal with the figures, any more than he had done on 16 January. Instead, he said that he would place the Government's calculation in the Library of the House. However, he had not done so by the time I had left the House last night, nor when I arrived this morning. I did not in fact see the Government's calculations until early this afternoon.

However, that delay, which I would humbly suggest was unforgivable, at least meant that the Government have now put forward-at my request, I may say-and placed in the Library, not only the Government's own calculation but the response to it, which was prepared by Mr Andrew Parker, a partner in the firm of Beachcroft, to whom I am especially indebted. That response shows that by accepting this amendment the Government would make a saving to the taxpayer of something between £10 million and £19 million.

I suspect that the House will be glad to hear that I will not go into the figures again, since the Government have simply left it too late for further consideration of the figures. The House has accepted the amendment that I tabled last week, on the basis of the figures which I then put forward, there having been no other figures with which to compare them. However, that is not an end of the matter, because the savings that I have indicated will depend on the Government accepting this amendment, the second part of the coupled amendments now before the House, as well as the one that they accepted last week. If the Government are serious about saving money, as they have said so often in Committee and so far on Report, then that is what they ought to do.

The repeal of Section 29 of the Access to Justice Act, which would get rid of recoverable insurance premiums, is one of the two or three main planks on which Part 2 of the Bill rests. What, therefore, is the point of repealing Section 29 and then, in the same breath, making an exception in the case of expert reports, when expert reports are now covered by legal aid as a result of last week's amendment? It simply does not make sense. The only explanation given so far is that the Government want to help those who are above the legal aid limit. But how does that square with the Government's attitude to those many deserving cases, of which we have heard from all sides, who are being denied legal aid even though they are within the legal aid limit? It is in the highest degree ironic that one of the grounds given by the Government for spending the extra £10 million is the need to secure access to justice for those who are above the limit. How much better that money would have been spent elsewhere in the course of this Bill.



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The truth is that the Government simply made the wrong decision. They listened to representations, as a result of which they decided to fund expert reports by way of ATE insurance rather than by way of legal aid. They chose the most expensive course but they now have the chance to mend their ways. It is not too late for them to put the matter right by accepting this amendment. I beg to move.

10 pm

Lord Beecham: My Lords, I strongly support the noble and learned Lord's amendment, which makes every conceivable sense from the financial to the legal and logical. I have to say that I do not at all blame the noble Lord, Lord McNally, or the noble and learned Lord, Lord Wallace, but it is a matter of some concern that those responsible were not courteous enough to ensure that the noble and learned Lord, Lord Lloyd, who, after all, is one of the most distinguished Members of your Lordships' House, should have been supplied with a copy of the document lodged in the Library. Indeed, had I not chanced across it myself today and given him a copy, he might not even at this stage have known of its existence. That is not good enough and I hope that Ministers will have a word with the appropriate members of their staff.

More significantly, the noble and learned Lord makes an unanswerable case for this amendment and I hope that the Minister will be able to say that the Government will respond sensibly. It would assist justice and assist the finances. It seems to me that it would be absurd for the Minister not to accept this amendment.

Lord McNally: My Lords, if there has been any discourtesy to the noble and learned Lord, Lord Lloyd, I absolutely apologise and take responsibility for it. I should like to put that on the record. The noble and learned Lord has described our proposal in the past as expensive and inefficient, and has made much of the difference between his and the Government's figures. As he knows, we have now put our calculations in the Library of the House and I can assure your Lordships that we have given careful consideration to the calculations that the noble and learned Lord has provided. In addition, I have met with the noble and learned Lord, as have my officials, and we have swapped calculations. We have explained that we believe that he is omitting some vital costs from his calculations.

The method we have used is open and transparent. Taking costs to legal aid and to public sector defendants, we believe that the costs to the public purse of the proposals from the noble and learned Lord, Lord Lloyd, to fund expert reports by legal aid is about £17.5 million a year, whereas the cost to the public purse of our proposal for recoverable insurance premiums is between £18.5 million and £19.5 million. The result is likely to be an additional cost of about £1 million to £2 million.

I understand that the noble and learned Lord does not accept our calculations, but we do not accept his. This is a matter on which we have to take a judgment. These additional costs, as he has said, will enable more people to gain access to justice than under his proposals,

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which are limited to those who are financially eligible for legal aid. For this reason, and for reasons that are set out in more detail in the paper in the Library, we believe that the powers in Clause 45 are the best way to support victims of clinical negligence in a relatively inexpensive and fair way. I realise that this is a clash of figures and a clash of judgments, but I am making my judgment and we are willing to defend it in this House. At this hour, I would urge the noble and learned Lord to withdraw his amendment.

Lord Lloyd of Berwick: My Lords, I am afraid that I do not find the answer satisfactory. I will withdraw the amendment, of course, but in the hope that the Government will think again and perhaps, between now and Third Reading, take further and better advice. On that basis, I beg leave to withdraw the amendment.

Amendment 137 withdrawn.

Amendment 138 not moved.

Amendment 139

Moved by Lord Beecham

139: Clause 45, page 31, line 39, at end insert ", (2A) or (2B)"

Lord Beecham: My Lords, we return briefly to the question of environmental cases which we also discussed under the amendments tabled by the noble Lord, Lord Thomas. The distinction between these amendments and the previous amendments are that, in this case, the amendments provide the Lord Chancellor with the opportunity to provide by regulation for the changes that are sought; namely, that in respect of Amendments 139 and 140, disbursements related to ATE insurance would be recoverable and, under Amendment 142BC, that qualified one-way costs-shifting would apply, as it should, to these cases. That was recommended by Lord Justice Jackson and I cannot see why the Government would differ from his view. Therefore, for environmental claims and judicial reviews connected with them, QOCS would apply, as indeed they should. This is an important area of policy and potential litigation. As the noble Lord, Lord Thomas, pointed out fully, it needs to be addressed. As I have said, we prefer this iteration of the remedy, but in one way or another the Government should be seen to move in the direction of facilitating these claims under the conditional fee arrangement scheme. I beg to move.

Lord McNally: My Lords, Amendments 139 and 140 seek to allow the continued recoverability of ATE insurance premiums in environmental claims to cover the costs of expert reports. Environmental claims will generally involve a number of claimants who could contribute towards the costs of any reports. Alternatively, the reports could be funded under a "before the event" insurance policy should claimants have one, or under an "after the event" insurance policy should claimants wish to purchase one. Further, the claimant's solicitors might agree to fund disbursements in exchange, perhaps, for an increased success fee. A variety of means of

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funding disbursements are available in environmental cases without the need for an exception for recoverable insurance premiums.

So far as the other side's costs are concerned, the Government's view, as I explained in Committee, is that a protective costs order ought to provide sufficient costs protection in respect of the other side's costs in environmental judicial review cases, as we set out in our recent consultation. Under a PCO, it will be clear from the outset what costs the claimant will have to pay if the claim is unsuccessful. The order will also ensure that some contribution is made towards the costs of public bodies that have successfully defended the claim. As I said earlier, environmental claims will generally involve a number of claimants and it is right that they should contribute together to costs, at least to some extent. The Government remain convinced that this is the right approach in these cases. We will shortly set out the details of the way forward in the light of our consultation. I hope, therefore, that the noble Lord will withdraw his amendment.

Lord Beecham: I beg leave to withdraw the amendment.

Amendment 139 withdrawn.

Amendments 139A to 141ZC not moved.

Clause 46 : Recovery where body undertakes to meet costs liabilities

Amendment 141A

Moved by Lord McNally

141A: Clause 46, page 32, line 44, leave out "party to proceedings" and insert "person"

Lord McNally: Amendments 141A to 141C relate to the self-insurance element where a body undertakes to meet a member's cost liabilities. They are intended to have a similar effect to government Amendment 135A. I beg to move.

Amendment 141A agreed.

Amendment 141AA not moved.

Amendments 141B and 141C

Moved by Lord McNally

141B: Clause 46, page 32, line 45, leave out from beginning to "before"

141C: Clause 46, page 32, line 46, at end insert "if the undertaking was given specifically in respect of the costs of other parties to proceedings relating to the matter which is the subject of the proceedings in which the costs order is made"

Amendments 141B and 141C agreed.

Amendments 142 and 142A not moved.

Amendments 142B to 142BC not moved.



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Amendment 142C

Moved by Lord Thomas of Gresford

142C: After Clause 53, insert the following new Clause-

"Third party litigation funding

(1) A third party litigation funding agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of it being a third party litigation funding agreement; but any other third party litigation funding agreement shall be unenforceable.

(2) A third party litigation funding agreement is an agreement under which a third party ("the funder") agrees to fund (in whole or in part) the provision of advocacy or litigation services to another person ("the litigant") by a person other than the funder in exchange for remuneration.

(3) For the purposes of subsection (2), "remuneration" includes-

(a) a payment or any other transfer of value representing or calculated by reference to the value of a judgment or settlement; and

(b) an assignment of the proceeds (in whole or in part) of any judgment or settlement.

(4) The following conditions are applicable to a third party litigation funding agreement-

(a) it must be in writing;

(b) it must not relate to-

(i) proceedings which by virtue of section 58A(1) and (2) of the Courts and Legal Services Act 1990 cannot be the subject of an enforceable conditional fee agreement;

(ii) a multi-party action, representative action or any proceedings which are the subject of a group litigation order; or

(iii) any other proceedings of a description prescribed by the Lord Chancellor;

(c) it must comply with such requirements as shall be prescribed by the Lord Chancellor.

(5) Regulations under subsection (4)(c) may-

(a) require any person which enters into a third party funding agreement with a litigant to first obtain a license from a licensing body to be designated by the Lord Chancellor; and

(b) set out conditions to be satisfied in order to obtain such a license.

(6) In this section "advocacy services" and "litigation services" are as defined in section 119 of the Courts and Legal Services Act 1990."

Lord Thomas of Gresford: My Lords, the amendment raises the issue of third party litigation funding. I made a lengthy contribution in Committee which I do not propose to repeat. The basis of the amendment is to bring under government control third party litigation funding. Your Lordships may recall that a voluntary code has been entered into by those who are concerned in third party litigation funding and I suggested in Committee, and I repeat, that it is far better that the Lord Chancellor should take a look at this and bring in something along the lines of what I have suggested in my amendment. I beg to move.

Lord Bach: We agree with the amendments in the name of the noble Lord, Lord Thomas of Gresford.

Lord McNally: My Lords, I have said before that we are grateful to my noble friend for raising this issue. It is a possible problem and a number of noble and learned Lords and lawyers outside have given warning

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signals. At the moment we are looking at how voluntary regulation is working in the area. However, my right honourable friend the Lord Chancellor is very aware of the situation and is keeping it under review. We do not think that statutory regulation through this Bill is either the right place or the right time but we welcome the fact that my noble friend has put this issue on the political radar. Both lawyers and legislators will have to follow the matter closely to see whether we will need to return to it at some future date. In the mean time, I ask my noble friend to withdraw the amendment.

Lord Thomas of Gresford: On this occasion I am grateful to my noble friend for his reply. My purpose was to highlight the insidious advance of third party litigation funding. It is essentially an American concept that has advanced into this country. So far it has reached commercial litigation, with which I have no quarrel. It has also got into family law and I shall be extremely concerned if it were to get into personal injury cases. The fact that the Lord Chancellor now has it on his agenda and will monitor the way in which the voluntary code operates is of great comfort to me and it is on that basis that I beg leave to withdraw the amendment.

Amendment 142C withdrawn.

Amendment 142D

Moved by Lord Thomas of Gresford

142D: After Clause 53, insert the following new Clause-

"Third party offers to settle

It shall be an offence for a third party insurance company to solicit a claimant who has a cause of action for personal injuries against its policy holder, to make an offer to settle that cause of action unless-

(a) it has obtained adequate medical evidence of the personal injury and has disclosed it to the claimant; and

(b) the claimant is advised when the offer is made of his right to obtain legal advice; and

(c) the offer is in full and final settlement of the cause of action."

Lord Thomas of Gresford: This amendment concerns the third party insurance company, which approaches a prospective claimant and offers to settle without there being adequate medical evidence, without the claimant being informed that he has a right to legal advice and without the offer being in full and final settlement of the cause of action. In Committee, I hesitated to suggest that it should be a criminal offence, and suggested that the best way of dealing with the matter should be that such settlements would be void, which would enable a claimant who subsequently discovered that he was in a far worse condition than he had thought to reopen the matter and to claim damages for the injuries that he received. That is a practice that has crept in. It means that people accept settlements without proper advice or evidence of what is wrong with them and without a proper calculation of their losses. It seems to me that a lot of people are vulnerable to that type of approach. That is one side of the problem. The other side is that it encourages people with no basis for a claim at all to make one and accept a sum of money that means that, over a large range of cases,

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the insurance company benefits. That is just as bad as that people should be incited to put forward fraudulent claims.

My noble friend's answer in Committee was that the FSA rules are sufficient to cover the matters of which I complain. That immediately makes me ask who enforces the FSA rules. What control is there over the employee of a third-party insurance company who, quite clandestinely, makes offers of this sort to settle cases that are perfectly valid and which he knows to be valid? So at this stage I put forward the suggestion that it should be a criminal offence for people to engage in this type of behaviour. That may be going a step further. Perhaps my original concept that the alleged settlement obtained should be void was the right way to go. But certainly there is an abuse going on and I expect the Government to do more than to refer to FSA rules when there is no one to enforce them. I beg to move.

Lord Bach: The Minister would be well advised to give serious consideration to the amendment proposed by the noble Lord, Lord Thomas of Gresford. This is not one that he moved in Committee-he has moved it for the first time today. The House knows that he has become an expert in this field of litigation over the months that he has spoken to me about it. He may well be right that it is no good the Government taking a position that looks like it may take some time to develop. It is something that needs to be done and thought about pretty promptly. Therefore, as far as we can, we support the amendment.

Lord McNally: My Lords, I think it was the noble Lord, Lord Martin, who talked about the proper role of the House of Lords. Although the hour is late, my noble friend Lord Thomas has demonstrated one of the benefits of this House in bringing to the Government's attention an area where there already is or could be a malpractice that will have to be dealt with. As he explained, this is a practice where an insurer approaches a claimant directly, usually immediately after a road traffic accident, with a view to settling the claim, where an insurer's own policyholder is at fault in a car accident. As I understand it, claimant representatives refer to this practice as third party capture, whereas defendant representatives call it third party assistance. As I indicated in Committee, I shall continue to refer to this practice as third party contact.

Amendment 142D would make it an offence for an insurer to make such an unsolicited approach to a potential claimant in a personal injury case. The amendment also specifies those requirements which must be met before an insurer may make an offer to settle such a claim. This includes a requirement to obtain adequate medical evidence of injury and to advise the claimant of their right to obtain full legal advice before accepting the offer and making it clear to the claimant that the offer to settle is full and final.

It is unclear what my noble friend means when he says that this practice should be an offence. If he refers to this as being a criminal offence, I do not believe that a criminal sanction is appropriate or proportionate. You would have to prove beyond reasonable doubt that something amounted to an unsolicited approach. As I explained in Committee, the Financial Services

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Authority regulates the insurance industry and requires insurers to treat their customers fairly at all times and that this covers third party claimants.

Third-party contact does not in itself cause detriment to the consumer and may be to their advantage, as a claim can often be resolved quickly. In addition, this practice can allow insurers to reduce the legal costs associated with handling a claim and this in turn reduces costs for all policyholders. However, I am aware of the concerns around the potential risk of conflict of interest and the need for the claimant to have independent legal advice before any settlement is agreed. This matter was looked at by the FSA in its review of third-party contact during 2009-10 and it did not find conclusive evidence that unrepresented third parties could have achieved higher compensation had they obtained independent legal representation.

Following the FSA's review, the Association of British Insurers published a code of practice in June 2010. The code contains specific guidance for insurers on contacting claimants. This limits unsolicited contact. For example, and I quote:

"Insurers will not make unsolicited visits to an unrepresented claimant at their current address, including hospitals".

The code also requires that claimants are informed of their right to seek independent legal advice and other options available for them to resolve their claim.

Most of the issues which this amendment seeks to address in respect of the handling of third-party contact claims are already covered by existing regulation. The FSA rules require that insurers fully inform third party claimants of their legal rights, including to independent legal advice and alternatives to settling directly with the insurer. The Government do not believe it is right or appropriate to introduce further sanctions or regulation in this area, especially when a scheme already exists to monitor insurers' activities. That said, I can reassure my noble friend that if a serious concern arises in the future in this area-and we will keep it under review-we will not hesitate to take this up with the Treasury and with the FSA.

I am therefore grateful to my noble friend for raising this issue with us, but for the reasons that I have mentioned I hope that he will agree to withdraw the amendment.

Lord Thomas of Gresford: My Lords, I am grateful to my noble friend. I am glad that some publicity has been give to this practice which I believe to be fairly widespread and causing a great deal of concern. As long as the Government keep their eye on this area, I shall be satisfied. I beg leave to withdraw the amendment.

Amendment 142D withdrawn.

10.30 pm

Clause 54 : Rules against referral fees

Amendment 142E

Moved by Lord Beecham

142E: Clause 54, page 39, line 24, at end insert-

"( ) A regulated person is not in breach of this section if the body to which the payment is made for the prescribed legal business is a not-for-profit organisation and the payment is in the nature of a service that was provided before 27 July 1999."



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Lord Beecham: My Lords, this amendment deals with referral fees. The Bill provides rules against referral fees and defines the nature of regulated persons, who are effectively prohibited from receiving a payment for referring prescribed legal business to another person. Under Clause 54(4), the legal services in question relate to,

or where,

I do not know quite what is envisaged by the latter provision, but it is clear that the aim is to inhibit the referral of personal injury claims in return for payment. The regulated person, who for these purposes would presumably be acting on behalf of an injured person, would also be in breach of the subsection if he arranged for another person to provide services to the injured party and was paid or had been paid for making the arrangement.

A number of issues arise from this. The first is that the payment need not necessarily be financial; it could also involve, for example, the provision of another service. It might fall within the scope of the clause-I am not sure whether this was intended-if an organisation referred a client to a solicitor and, as part of their service, the solicitor prepared a will for that client or gave legal advice on another matter that was not related to the personal injury or other category that the Lord Chancellor might specify.

The purpose of Amendment 142E is to make it clear that a person would not be in breach of this subsection if the body to which the payment is made-that is, the person referring the client-is a not-for-profit organisation. There are of course organisations, such as charities and the like, which refer their members or others to solicitors and perhaps other professionals, and receive payment in return. In particular, I understand that a number of medical charities do this. I suppose that at one time organisations such as the Automobile Association, or other motoring organisations that are no longer membership organisations in the traditional sense, might have done likewise. Since they are not-for-profit organisations, it does not seem appropriate that this bar should be in place.

The situation is not analogous to that which the noble Lord, Lord Thomas, dealt with in terms of third-party funding, about which he is absolutely right to be exercised. Therefore, it should not be caught within the prohibition that is envisaged here. It could certainly do considerable harm to organisations and, for that matter, limit the benefit to clients of being referred. As I said, they might be referred on the basis of free advice or advice at a reduced cost, which would presumably appeal to the Government-quite rightly since they are talking about reductions in cost.

Therefore, I hope that the noble Lord will look again at this situation, perhaps with a view to coming back to it at Third Reading if he cannot accede to this measure tonight. There are other amendments before us in this group and there is to be a further amendment which will be taken next Tuesday, so we are not quite

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in the position of closing the door yet-not before Third Reading in any event. In these circumstances, I beg to move Amendment 142E.

Lord Hunt of Wirral: My Lords, in speaking to Amendments 146A and 148A, I wish to say how strongly I support in principle the Government's proposal to ban referral fees. I declare my interest as a partner in DAC Beachcroft, the international commercial law firm. My amendments are intended simply to clear up some possible loopholes. Having just heard the comments of the noble Lord, Lord Beecham, I caution how important it is to have a blanket ban because any ban that is implemented has to work. However watertight the ban is-my amendments are intended to help the Government achieve that objective-it is critical that we also remove the incentive for referral and profit share by removing the excessive legal costs from the system. There are many vested interests here and a lot of money is at stake-too much money in my view.

At present, solicitors acting for claimants can still afford to pay out more than half of their fees to a third party whose only role is to buy and sell on the details of an injured person. That cannot be right. Amendment 146A would make a minor change to Clause 54(4) by inserting,

I raised in Committee the spectre of the current wording permitting the payment of a referral fee for some non-injury element of an injury claim, completely bypassing the Government's intentions. I look forward to hearing my noble friend the Minister's comments on that.

Amendment 148A would insert,

into Clause 54(8). I highlighted in Committee this gap in the drafting which could be exploited simply by the way in which payment is routed. Again, I await my noble friend the Minister's answer.

Finally, I would also be very interested to hear whether my noble friend can give this House a commitment about just how much of the excess cost can now be taken out of the system altogether, which is, frankly, a more effective remedy than tightening up the drafting.

Lord Martin of Springburn: My Lords, I wish to speak to Amendment 146 in my name. In doing so, I declare an interest as I have been a member of the Unite union for a long time. I am not having a go at the media on this matter but, often when trade unions are mentioned in the media, reference is made to trade union leaders. Not much is known about the activities of the lay officials and junior officers of a trade union. Tonight we have spoken about asbestos victims. A trade union would probably be the first port of call for a person who felt that they were suffering from the effects of asbestos inhalation. Apart from the serious matter of asbestos inhalation, your Lordships may be aware that even a National Health Service kitchen can be a very dangerous place for workers. They can fall, be scalded or be cut by the knives that they are using.

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After any injury such as that or any other injury relating to a person's work, the first port of call is to the local trade union office, and an investigation is made before the matter is referred to a lawyer. Any of us who has run an office knows that photocopiers, heating, lighting and cleaning all cost money. It means that there should at least be some compensation for the trade union that is prepared to try to help that member before the member goes to a solicitor.

Baroness Deech: My Lords, I declare an interest as chair of the Bar Standards Board, which regulates barristers and prohibits the payment of referral fees, which we regard as immoral-I think that I am not putting it too strongly-and which we disapprove of because they are anti-competitive.

While I have every respect for my noble friend Lord Martin and for the work that the unions do to help their members, the amendment has brought to mind one of the most reprehensible incidents of modern times relating to lawyers and referral fees. I will not give the House too much detail because it is late at night, and the story is probably well known to noble Lords here, especially noble and learned Lords. When very many miners were sick and 23,000 cases were referred on by the union to a solicitors' firm, it ended up with reprimand and with the law firm taking far more money than did the sick miners. The solicitors were paying the union, and in the case that I am thinking of the amount came to about £10 million, because 23,500 cases were referred to one firm.

If a firm of lawyers knows that a number of cases of that order are to be referred to them without the firm making any effort, without it going out into the market and proving how good it is, it is not surprising that things went wrong.

Lord Martin of Springburn: I know it is late in the evening and I thank the noble Baroness, but I am sure she would agree that not every union or every solicitor would conduct their affairs like that. Tomorrow, there will be unions that refer their members to a solicitor, and they will do so in good faith and in the best interests of their members.

Baroness Deech: I am sure that the noble Lord is right, but what I am objecting to is the exchange of money. If you go to the website of the union, you may click through to the page where legal services are offered, click where the page directs you to a law firm, the law firm is named, and then you can continue to click until it says, "For every case referred to this firm, the firm will pay the union a sum of several hundred pounds". If the unions wish to help their members, it would be very easy simply to refer them to a whole number of local firms without money changing hands. There is nothing to stop the good work done by the unions, which I praise. It is the exchange of money that I object to. In the case that I am thinking of, it was actually public funds that went to the solicitors' firm. It illustrates what is wrong with referral fees: the issue is treated as commercial and the law firm can sit back, knowing that cases will flood its way, whether it deserves them or not.



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There have been other reprehensible incidents such as this, with which I will not delay noble Lords, save to mention one other effect. Given that very large sums of money are paid to the union, whichever union it is, by the law firm, and we know that many unions are inclined to support one political party, we end up with money being paid-very indirectly, I grant you-to the political party because the money is coming from the funds that the union has accumulated, and part of those funds come from referral fees.

If the solicitors can afford to pay £200 a time, or whatever it may be, to the union in return for every case, that must logically indicate that the case could have been handled for less money than was charged. I am by no means saying that that is always bad, but there is definitely a risk in referral fees. In particular, there is a severe risk to the interests of justice where a firm knows that thousands of cases can come its way without it making the effort in the market to get them and handle them well. Therefore, with all due respect, I hope that the amendment will not be pursued, as I do not think that it helps the Bill.

10.45 pm

Lord McNally: My Lords, I think that there is broad agreement across the House about the need to ban referral fees in personal injury cases, as we propose in Clauses 54 to 58. However, there is some disagreement about how it should be done, as this debate has shown.

It may be helpful if, in reply, I deal separately with those amendments with which we have some sympathy and those with which we do not. The Government agree with the intention behind Amendments 146A and 148A in the name of my noble friend Lord Hunt of Wirral. I give the House a commitment that we will bring back amendments at Third Reading to address the issues raised by those amendments. However, the Government cannot agree with Amendments 142E and 146. We believe that it is not in the public interest for payments in receipt of referral fees to be allowed in any personal injury cases, regardless of whether the recipient is a solicitor, a charity, a trade union or some other party. If the provision applies to solicitors who pay referral fees, it must also apply to the not-for-profit organisations which deal with them.

The Government intend to ban the payment and receipt of referral fees in all personal injury cases, and we are not persuaded that there should be special treatment for not-for-profit organisations, or for solicitors dealing with trade unions, to exempt them from the ban. However, trade unions will of course still be able to refer cases, without payment, to those best able to pursue them. Nothing in the clauses prevents lawyers providing services free of charge to registered charities.

A number of points were made in the debate. The noble Baroness, Lady Deech, made a powerful case in favour of what we are trying to do on referral fees. She referred to a case, which we all remember, which shows how the best of intentions can be misused when trying to deal with a problem. I say to the noble Lord, Lord Martin, that I certainly advocate the value of

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trade union membership, but that there is a danger of trade unions, charities and others having a sweetheart relationship with a firm of solicitors based on referral fees.

My noble friend Lord Hunt of Wirral asked me how much of the excess litigation costs can be taken out of the system. My right honourable friend the Prime Minister has announced that we will be extending the road traffic accident scheme to cover claims up to £25,000, and to cover employer and public liability cases. As part of that process, the Government intend to make an objective assessment of the existing costs involved in RTA schemes, and we expect fixed recoverable costs of £1,200 to be reduced significantly as a result. The new fees will come in when the Jackson reforms in Part 2 of the Bill and the ban on referral fees are implemented in April 2013. Although I cannot give a precise figure, the aim, as in other parts of the Bill, is to squeeze out of the system excessive costs, which are undoubtedly there.

I hope that, in the light of those responses, the noble Lord will withdraw the amendment.

Lord Beecham: My Lords, I will be withdrawing my amendment. I must disabuse the noble Baroness, Lady Deech, with whom I shared a law course at Oxford, on the question of the political aspect of union funding. Union funds for political purposes, of course, derive from their political funds and not from general income. The noble Lord, who has a long memory of these things, is acknowledging that, for which I am grateful. It is not just a question, however, of fees, as I have indicated. Other services offered to members, whether they be of trade unions or other organisations, would be caught, apparently, by the Bill as it currently stands. I cannot believe that that is really part of the Government's intention. Not all unions have an arrangement of this kind, where a referral fee is paid, but unions do have extensive and expensive legal departments which have to be supported. It does not seem unreasonable that those organisations-and, indeed, other organisations; charitable organisations-should have a scheme. I agree that the noble Baroness has identified a particularly abusive situation which, of course, has been rightly dealt with, but that is very much the exception. Having said that, we will, up to a point, be returning to this matter on the next day of Report in a slightly different context. I beg leave, therefore, to withdraw the amendment.

Amendment 142E withdrawn.

Amendments 143 and 144 not moved.

Consideration on Report adjourned.

London Local Authorities Bill [HL]

Returned from the Commons

The Bill was returned from the Commons agreed to with amendments.

House adjourned at 10.50 pm.


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