Compensation Bill [Lords]

I declare an interest, as I was a personal injury lawyer for 20 years before I became a Member. I worked with trade unions and their members, not in an academic way but hands on, with real cases, helping real victims. I remain a consultant with my law firm, but I have not taken cases since I came to this place. I am a founder member of the Association of Personal Injury Lawyers, a former member of its executive committee and a former Law Society specialist assessor for its panel of personal injury lawyers. My job here is to represent constituents, not lawyers. If I were here to represent lawyers, I would probably welcome clause 1, because it will wave off not just a mere gravy train but a veritable Orient Express of rich cordon bleu sauces for the legal profession. It will create a tsunami of litigation that will flood the courts with cases of such complexity, and in such volume, that Jarndyce v. Jarndyce will look like a small claims debt recovery action in comparison. Clause 1 creates confusion where there is settled law. It will jeopardise safety standards, creating a charter to kill and maim with impunity. It will deprive deserving claimants of their just compensation and will create a two-tier system whereby victims of identical accidents have entirely different outcomes. I chair the Joint Committee on Human Rights, which has expressed criticisms of clause 1. We were not persuaded that the clause accurately reflects the subtleties of the existing law of negligence. It restricts access to legal redress by claimants, including vulnerable groups. We believe that the clause will be applied in a manner that restricts claimants’ access to justice and runs the risk of being in breach of our country’s obligations under articles 2, 3 and 8 of the European convention on human rights. It is claimed that all that clause 1 does is restate the law, but if that is the case, it raises the question: why do it? The common law has developed over the past 75 years in particular, starting perhaps with the Donoghue v. Stevenson principle and ending, most recently, with Tomlinson v. Congleton borough council. There have been many other cases in between. In no way does the clause accurately restate the law. The Lord Chief Justice made it clear to the Constitutional Affairs Committee that"““it is quite impossible to encapsulate the law of negligence in a single sentence.””" Despite the Government’s protestations and the Minister repeating herself until she is blue in the face, clause 1 manifestly fails to reproduce the common law as it presently stands. In reality, the clause is simply a reaction to the popular misconception of the compensation culture, which has been roundly rubbished by everybody who has bothered to look at it. The facts show a decline in claims, not an increase—so why reinforce prejudice? Clause 1 is riddled with ambiguity, uncertainty and a lack of legal precision. It starts off by giving the court discretion about whether to apply it. That in itself will lead to many legal arguments about whether the judge should or should not have exercised his discretion in the first place. It refers to the need for the claimant to identify the taking of precautions—a positive case required from a claimant that was not previously required. This is about expecting a claimant to deliver a positive safety regime for the defendant if they are going to win their case. The clause introduces a whole new concept into common law of ““desirable activity””, which the Bill fails to define. The Minister indicated earlier that she was not prepared to define it through an amendment.