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Lord Renton: That is saying something.

Lord Campbell of Alloway: And that is saying something. But your Lordships will appreciate that I have not had the privilege of hearing all of them.

I accept that one's prejudice, of which I am proud and which I shall always retain, must not cloud one's judgment. All other noble Lords who have spoken are quite used to the position of having to put aside one's own prejudice and approach the problem totally objectively. I listened with attention to everything said by your Lordships today. I listened to the argument of my noble and learned friend the Lord Chancellor, supported by the noble and learned Lord, Lord Nicholls, to which I shall come in a moment, and to every other speech in your Lordships' House. I agree with all that has been said by all noble Lords save for my noble and learned friend the Lord Chancellor and the noble and learned Lord, Lord Nicholls.

One question puzzles me, but obviously I must have got it wrong somewhere. Somehow this question of vires was introduced. But what on earth that has to do with this debate I am totally unable to understand. If my noble and learned friend the Lord Chancellor had the vires he would not use it anyway, so what is the object of arguing whether or not he has it? Perhaps I missed the main point but, at least for the moment, I am rather foxed about its relevance.

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With regard to the way in which the noble and learned Lord, Lord Nicholls, dealt with the matter, I accept that one has to approach the matter as to how to implement Section 58, which is established in primary legislation. The question is whether the way proposed by my noble and learned friend the Lord Chancellor or the way proposed by the very advisory committee he set up is the better way of doing it. Limiting it to PI, insolvency and the European Commission of Human Rights and the European Court of Human Rights is one thing, but to use it as a fulcrum to develop this without the question of control, which was referred to by the noble and learned Lord, Lord Lowry, is objectionable.

In any event, when the noble and learned Lord, Lord Nicholls, says, as he did, that competition between the high street solicitors will resolve the question of the 100 per cent., I ask, "Will it, my Lords?" Does the noble and learned Lord know a number of solicitors in the high street who will not take legal aid at the moment because they do not get enough out of it? Competition on this basis on the high street solicitors is so much pie in the practical sky. There is no question about that. And we are not concerned in this area with the examples of wills or conveyancing, to which the noble and learned Lord referred.

There is really nothing more that I wish to add to the merits of the argument. But it seems that the amendments to these Motions to approve the draft order and regulations are entirely well-founded. These drafts as they stand should be withdrawn and relaid in a form which reflects the recommendations of the advisory committee. These amendments moved by the noble and learned Lord, Lord Ackner, although in form amendments to the Motion, are in substance a reasoned rejection of the draft order and regulations laid. If that is so, then so be it and let them be rejected, if we have to divide on the matter.

The distinction between an amendment to a Motion and a reasoned rejection is too fine to be drawn by your Lordships. This is no exercise in confrontation and brinkmanship. We are only concerned with what is the better way of implementing Section 58 of the Act. It is entirely appropriate that if such be our opinion we should reject the method proposed by my noble and learned friend the Lord Chancellor in favour of the proposal by his own independent advisory committee. In this situation parliamentary prudence plays no part and party political affiliations do not have any direct bearing. As my noble friend Lord Peyton urged, this is a matter where, if it is the opinion of your Lordships, how can we do otherwise in this unusual situation than to reject the order and the regulations as laid? It is unusual because there is disagreement. It does not happen as a rule when subsidiary legislation comes before your Lordships, but there is disagreement between the noble and learned Lord the Lord Chancellor and his advisory committee.

The negotiations are bogged down in stalemate. If this amendment to the Motion is carried on a Division, no doubt that logjam or stalemate can be re-opened and resolved by some acceptable compromise. After all, it is ordained by statute, as some kind of parliamentary safeguard, that we either accept or reject the Motion as

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it stands. If in our honest opinion, having considered all that has been said, we feel today that it should be rejected, then reject it we should. In any such situation I shall support the amendment proposed by the noble and learned Lord, Lord Ackner.

5.3 p.m.

Lord Cocks of Hartcliffe: My Lords, when I saw the list of speakers for this debate I felt that I had to check once again with the Clerks of the House as to whether it was in order for a layman to speak. Fortunately, I have had that reassurance so I shall add a few words. The noble and learned Lord, Lord Nicholls, spoke about bringing competition into the profession. I am happy to be able to tell him that I have already told the House about my appointment card for Chelsea and Westminster Hospital, which has on the back an advertisement by a solicitor seeking custom in personal injury cases. He may or may not think that this is appropriate.

Throughout this debate and in the literature, which I have tried to read conscientiously, there has been a great argument about uplift and whether it should be 10 per cent., 20 per cent., 50 per cent. or 100 per cent. Nowhere have I seen any mention at all about the amount which is being uplifted. The question of fees being charged by some members of the legal profession I have mentioned before. I am astonished that a debate of this nature can take place with no reference to it whatsoever.

I shall not weary the House at length on this. I have mentioned before the Written Answer I had from the noble and learned Lord, the Lord Chancellor, on 10th October 1994 about Dr. Jawad Hashim. The answer states that Mr. Colin Ross-Munro had already drawn £671,111 and Mr. Hugo Page, £438,523. It concludes,

    "Final costs will not be known until final bills have been submitted and the bills have been taxed".—[Official Report, 10/10/94; col. WA 94.]

The noble Lord, Lord Mishcon, made some rather censorious remarks about taxing masters and suggested that they might never have conducted proceedings in court. But, in my very limited experience, taxing masters have been vindicated. I refer to the appeal proceedings on 1st December 1993, when the noble and learned Lord, Lord Templeman, speaking about the challenge to a taxing master's decision, said to the appellants,

    "The amount of fees you and your leader were claiming for a four day case would have hired three very competent headmasters for a year".

He went on to say—

Lord Mishcon: My Lords, I wonder whether, with his usual courtesy, the noble Lord will give way. I want to make it clear that I said that I venerated taxing masters. Quite apart from that, I said that, if they were being asked to adjudicate as to the chances of success of an action, I felt that that was a field in which they had had little or no experience.

Lord Cocks of Hartcliffe: My Lords, I am very much obliged to the noble Lord. But, inexperienced though this particular taxing master was, the noble and

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learned Lords, Lord Templeman, Lord Keith of Kinkel and Lord Goff, all found in his favour. The noble and learned Lord, Lord Templeman, said,

    "These fees would have been unheard of even three or four years ago. The whole thing has come across from America and it has just gone up and up and up".

I believe that a noble and learned Lord made that point earlier on.

Such reticence on the part of the legal profession about their own money does not extend to other people's money. Only yesterday we were told by the Sunday Times that Mr. Mears was calling in his presidential manifesto for a £100 levy to make up the cost of the appeals and the damages compensation fund which they run. He goes so far as to suggest that £100 should be added to conveyancing bills. Clearly, the electorate to which he was appealing was not that of the usual house purchaser.

In the Mail on Sunday there was a report about lawyers' calls for cash for victims, saying that the Bar Council was,

    "against the proposals in the Criminal Injuries Compensation Bill".

There is a quotation from Mr. Robert Latham, who sits on several victim support committees. He said,

    "We urge you to show two fingers to this new scheme".

This is where a layman is at a disadvantage because the phrase "two fingers" is clearly some sort of legal technical phrase with which I am not familiar.

The serious point is that it seems to me, with the greatest respect, that these debates are conducted in a vacuum. There are some unfortunate children who suffer from what is called SCID, which is severe, combined immune deficiency. It means that they must be kept free of any possible source of infection. Their early life is lived in a bubble where their victuals are passed into them. It seems to me that some of the debates about legal matters held in this House and in another place are conducted without any relationship to the world outside.

I shall try briefly to make a little clearer what I mean. The scheme we are talking about today extends to personal injuries. There appeared in The Times an extremely interesting article by Michael Baum, who is an eminent cancer specialist at the Royal Marsden Hospital. The article was called, "Does Screening Really Work?". He pointed out,

    "Something like 80 per cent. of men dying of other unrelated diseases in their eighties will be found to have prostate cancer at post mortem".

The tenor of his remarks was that there are many cancers which are never discovered unless there is a post mortem because they do not develop to a stage where they can be diagnosed. He said that it is possible that testing can be overdone.

That was reinforced in The Times on Saturday 10th June in an article by the health correspondent, Jeremy Laurance, who wrote that fear of litigation makes smear-test staff over-cautious. Dr. Angela Raffle claimed:

    "Staff live in fear of being blamed for failing to prevent cases of invasive cancer. The desire to avoid over-diagnosis, which in the past kept the detection rates low, has now been outweighed by the need to avoid any possibility of being held responsible for missing a case".

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The report goes on to state that 5,500 women were referred for further investigation and treatment,

    "for a disease that would never have troubled them and are being left with problems that include lasting worries about cancer, difficulties in obtaining life insurance and worries concerning the effect of their treatment on their subsequent reproductive ability".

I shall not weary the House with more details of that, but we are talking about people in the caring professions now who are becoming worried about the increasing tide of litigation. We have to think forward to people who are contemplating what to do with their life. If the situation deteriorates very much further, people will be reluctant to enter the caring professions. I believe that such considerations should have equal prominence when we are discussing these other matters.

5.11 p.m.

Lord Coleraine: My Lords, I spoke in the debate on 1st November which was initiated by the noble and learned Lord, Lord Ackner, and I have come here today to renew the support that I offered then to my noble and learned friend on the Woolsack. I do not propose to go over old ground again, except to the extent that it is made necessary by the amendments in the name of the noble and learned Lord, Lord Ackner, which raise again two issues about which he spoke in November. I suggest that neither amendment should command our support.

First, the noble and learned Lord asks the House to agree that the maximum costs uplift should be 20 per cent., not 100 per cent. As my noble and learned friend on the Woolsack suggested—it seems a long time ago now—fixing that low figure would deprive the injured plaintiff, with only about a 50:50 chance of success, of the opportunity to proceed with the benefit of a conditional fee agreement. Those 50:50 cases are cases where there is a good chance of success but at the same time a real possibility of failure. Those are cases which deserve support.

Judge Michael Cook, in an article in The Times of 6th June which I expect many of your Lordships read, makes particularly hard-hitting points about the amount of uplift. He writes:

    "The Lord Chancellor originally proposed a maximum uplift of 10 per cent., but the Law Society argued that this would require solicitors to win ten out of 11 cases merely to break even".

The judge is a serious commentator, but he is wrong. As I understand the position, the actual objection to the 10 per cent. uplift was simply that the cases to which it might apply were cases in which there was almost no chance of the plaintiff losing—in other words, the scheme (if so limited) would simply not reach many of those plaintiffs who need conditional fee agreements.

The article goes on:

    "When an increase to 20 per cent.—reducing the odds for breaking even to five wins out of six—still did not satisfy the Law Society, the Lord Chancellor weighed in with a massive 100 per cent. uplift. The Law Society welcomed the proposal and revealed that 92 per cent. of personal injury claims, to which conditional fees are to apply, succeed. A 100 per cent. uplift had been secured for an eight per cent. risk".

That tendentious argument is, with all respect to the judge, more than a little misleading. The regulations cannot reasonably be read as permitting the maximum

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uplift for open and shut cases, but that is what the passage is implying and what the noble Lord, Lord Irvine of Lairg, seems to think when he says that the maximum uplift will not be confined to 50:50 cases, and it is what the noble and learned Lord, Lord Lowry, also thinks. However, the maximum uplift will and should be applied in only those cases where there is a good chance of success but also a real chance of failure—the 50:50 cases. All that Judge Cook's meagre statistic shows is that 50:50 cases may be relatively few in number, but nothing can be made of that in relation to the amendments tabled by the noble and learned Lord, Lord Ackner, or in relation to the comments of the noble and learned Lord, Lord Taylor of Gosforth, about the low take-up in Scotland. It may be that there are not all that many people who require such assistance in 50:50 cases, but that is not a reason why they should not have it.

As to the amendment requiring that there should be a cap on fees, I would consider the compulsory imposition of a cap at best unnecessary but at worst in some respects operating against the interests of litigants. Indeed, I do not find myself in entire agreement with the Law Society, whose brief advises me that the Law Society will recommend to practitioners that,

    "A cap should normally be included in agreements".

There are obviously cases where a solicitor would recognise that the offer of a cap was appropriate to his client's financial and other circumstances. The noble and learned Lord, Lord Ackner, referred in November and today to the example of the damages in an otherwise successful claim being so reduced by a finding of contributory negligence that the uplift left the plaintiff out of pocket. It is on that sort of basis that he recommends the compulsory cap. But under the draft regulations, any solicitor offering a cap would be able also to offer an agreement without a cap, and it stands to reason that the uplift without the cap would probably be smaller than the uplift with the cap. The noble and learned Lord would remove from the plaintiff the element of choice, and leave him only the cap and the higher uplift. I consider that the imposition of a compulsory cap would be a retrograde step to take in this matter, and so I oppose it. It is inherent in litigation that even a successful plaintiff may be out of pocket at the end of the day. I have not heard either side of the profession—barristers or solicitors—recommend that when that happens the lawyers should forgo their fees in an effort to make things right for their plaintiff client. What is important is that there should be choice, and informed choice, and that honest proposals should be put by the lawyer to the client.

That leads me finally to say a word in relation to the amendments about a point which John Mark Taylor, the Parliamentary Secretary, brought out in the Commons in the debate on 15th May. It is a most important point which it is easy to overlook. There will be an undenied and binding legal duty imposed on a solicitor, in preparing and advising on a conditional fee agreement, to give the right and proper advice to his client; otherwise the agreement will be struck down at the end of the day as an agreement entered into by the client

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under the undue influence of the solicitor. In the last resort, that is what is going to make the regulations and the order work.

We should be looking to the future now. I am sorry that the noble and learned Lord, Lord Ackner, is still fighting the battles of 1990. I remind the House that the order and the regulations have been passed by another place. I commend to the House the Motions in the name of my noble and learned friend the Lord Chancellor and I hope—

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