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Civil Liability Bill: House of Commons final stages passed with clear majorities despite concerns

Yesterday the Civil Liability Bill successfully passed through its remaining stages in the House of Commons and now enters ping pong between the Commons and the House of Lords who will consider the amendments made in the lower house before the Bill is expected within a short period to move forward to Royal Assent.

Again, the primary debate yesterday concerned Part 1 of the Bill and whiplash reform. Part 2 in relation to a new process for setting the discount rate has continued to prove more consensual and the Opposition brought forward no amendments in relation to it at Report Stage.

The parliamentary maths

Certain difficulties were foreseen for the government in being able to achieve parliamentary majorities at Report Stage and at Third Reading in a situation where it relies for a majority on the current confidence and supply arrangement with the DUP, and where broader political developments in relation to Brexit were calling the future of that arrangement into doubt. In fact, none of the 3 votes taken yesterday on Labour amendments at Report Stage, nor the vote at Third Reading were close.

At Report Stage the majorities were 47, 45 and 55, as the House voted down the Labour amendments 287-240, 288-243 and 298-243. At Third Reading the government had a majority of 56 as the House passed the Bill on a 294-238 vote.

Behind these results lay three main factors: no Conservative MP voted against the Bill consistent with speeches from Tory members being generally supportive of it; SNP members who number 35 in total did not vote even though their approach might have been to oppose the Bill, and the DUP 9 MPs voted in support of the government in the 2 votes where the largest majorities were achieved (though in the first vote only 2 DUP MPs voted – 1 for the Bill and 1 against and in the second vote no DUP members voted).

It is worth noting that despite their unanimous critical report on this reform, all Tory members of the Justice Committee who voted yesterday including the chair of that committee Bob Neill did so in support of the Bill.

One SNP MP who spoke raised a concern around what he referred to as the 470,000 Scots who worked in England and Wales and who if they sustained an RTA south of the border would be treated less favourably than if injured in Scotland. That type of approach was not though enough in the end to lead to SNP MPs taking a position where they would vote on the Bill and specifically oppose it.

The EVEL process

This was dealt with between Report Stage and Third Reading and lasted a total of 6 minutes. The Bill was recertified as applying to England and Wales only so leading to the position where the House effectively re-constituted itself as the Legislative Grand Committee for England and Wales in which only English and Welsh MPs were entitled to vote.

It was 2 SNP MPs who were the primary speakers during this stage in fact, whose comments were party political rather than in relation to the Bill itself. The Legislative Grand Committee then in fact consented to the Bill without a vote, presumably in anticipation that the key debates and votes were in fact at Report Stage and at Third Reading.

The Labour position

Labour concentrated at Report Stage on two matters, seeking to limit the raising of the Small Claims Track limit for all personal injury claims and for those brought by children and protected parties in particular, as well as a wrecking amendment aimed at removing the tariff from the Bill so that common law damages including use of the Judicial College Guidelines would continue to apply.

When votes on those amendments were lost, Labour opposed the Bill at Third Reading, again unsuccessfully. Their argument advanced through Shadow Justice Secretary Richard Burgon was that the Bill undermined access to justice, tipping the scales of justice against claimants. He foresaw what he called “yet more restrictions on justice in personal injury cases” in the future.

Labour MPs who spoke questioned the level of the proposed tariff claiming that more compensation would be paid for a flight delay of more than 3 hours than for whiplash of up to 3 months.

Labour had also hoped from the Committee Stage to have improved the position of children and protected parties as the government had agreed to do with Vulnerable Road Users by excluding them from the new process and the SCT increases. However, this time it was reported that while further discussions with the minister had taken place, the government position had not changed as the minister later clarified.

The government position

This was again put forward by justice minister Rory Stewart though the Justice Secretary David Gauke was present for part of the debate though did not speak.

Mr Stewart referred to the various concessions and improvements that had been made during the Bill’s passage. He believed the right balance was now being struck with the removal of unnecessary complexity and unnecessary cost from the process, as well getting rid of what he called moral damage and hazard when individuals were deciding whether to make a claim.

As to the level of the tariff, when the Justice Secretary as Lord Chancellor was reflecting on the tariff he would as now required be consulting the Lord Chief Justice, and that was central to the aim to reconcile the tariff with the tradition of the English common law, said Mr Stewart.

The government had looked at the position of children and potentially vulnerable litigants carefully but had decided that their position was already covered by being represented by a competent adult, or if necessary by the Official Solicitor, or failing that he pointed out the judicial discretion to allocate such a case to the costs-bearing Fast Track.

The government saw the decision on the level of the SCT as one for the Civil Procedure Rule Committee to implement on which he noted that judges and lawyers were represented, including the chair of APIL. He noted that Labour when in power had increased the level of the non-injury SCT from £1,000 to £3,000 and then again to £5,000.

The government were waiting for the judiciary to report back in order that action (by government) could be taken in relation to paid McKenzie Friends.

The monitoring of the effect of the reforms on premiums would he said involve an unprecedented level of oversight by the Treasury and the FCA: the government would require insurers to pass on the required information and again would require the Treasury and the FCA to request it.

On the wording of clause 1(3) of the Bill, Mr Stewart made a Pepper v Hart statement - which is a formal means of clarifying a provision to assist future judicial interpretation of the Act - to confirm that it was not the intention to exclude from the operation of the tariff any whiplash claims where in the same accident the claimant also sustained a second injury falling outside the definition of whiplash.

Perhaps with one eye to the natural sympathies of the lawyers in the House including the JSC chair, the minister also said the government had an enormous respect for the work of injury lawyers who he said played an honourable and important part in society in representing the interests of victims.

The Justice Committee on board

That the Conservative members of the JSC were able to support the Bill yesterday can be seen from the line taken by its chair, Bob Neill.

On the tariff, he was pleased to see the commitment to consult with the LCJ, and thought it important that this was “real, thorough and detailed”. He thought the views of the judges had to be taken into account fully by way of consultation in the setting of the level of the tariff and how it should operate.

He thought on other related matters that the regulation of CMCs should be reviewed and strengthened, and that there should be a ban on paid McKenzie Friends as “non-qualified quasi-lawyers who are particularly rife in the claims management sector”.

Other Tory MPs

Contributions included:

Chris Philp saw QOCS as being partly behind the rise in claims volumes allowing “one-way bets” on cases so that claims even of relatively little merit would be brought: claimants could have a go and see what happened.

He also thought that “the British public are being invited to submit fraudulent claims on an industrial scale”.

Mike Wood thought that the problem with the Judicial College Guidelines was that they were based on awards in cases going to court, and did not consider the very large number which settled at an earlier stage when figures tended to be lower. He saw the guidelines as “institutionalising an inflationary element”.

The only note of doubt on the Bill from a Conservative member came from Mary Robinson who despite supporting the Bill said she had met solicitors and law firms locally and had been impressed by them, and who retained some doubts on the fairness of the proposed level of the tariff.

Discount Rate

Speaking on the discount rate, Mr Stewart confirmed that the intention to allow 100% compensation of course remained in place. The government would continue to encourage more use of PPOs and as previously recorded had asked the Master of the Rolls and the Civil Justice Council to consider the area. He noted though that some claimants preferred a lump sum either because they believed they could generate more from investment, or because they wanted to pass on the balance to others in the event of premature death: the minister noted that the latter was not the intention behind the award.

The future

Ping pong and specifically consideration by the House of Lords of Commons amendments is expected to take place shortly. Royal Assent is still considered likely by the start of the Christmas parliamentary recess.

On the discount rate, the new process can be implemented, and a new rate should be in place by the summer.

On whiplash reform, the debate will now move onto the secondary legislation surrounding the tariff and its implementation. Despite a successful progression through both Houses, there are still key areas to be worked out before a full vision of the way forward is visible.

Contact

For more information please contact Simon Denyer, Strategic Legal Development Consultant DD 0161 604 1551 Simon.denyer@dwf.law

By Simon Denyer

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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