Compensation Bill [Lords]

I remind the House of the interest I declared on Second Reading, which is that I occasionally receive a royalty or two from books I wrote or to which I contributed on these subjects. Like my hon. Friend the Member for North Southwark and Bermondsey (Simon Hughes), I want to raise a point about the drafting of new clause 13 that may have effects that the Government do not intend. I ask them to consider my points before the Bill goes back to the House of Lords. The problem is that the Barker case was about two different issues. The first related to the Fairchild rule, which was a relaxation of the rules of causation in favour of claimants, and whether it would extend to cases where part of the exposure to asbestos had come not from an employer but from a period of self-employment by the claimant. The second issue has caused the most difficulty: whether the apportionment of damages should be made on the basis of the traditional rule of joint and several liability or a new rule of proportionate several liability. The problem in Barker was that three of the Law Lords decided the first issue, the extension of the Fairchild rule, in favour of the claimant, but the second issue—switching to proportionate several liability—in favour of the defendant. More to the point, the Law Lords linked those two decisions; they come as a package deal. I will read from the speech by Baroness Hale of Richmond in the House of Lords, which makes the point very clearly. In paragraph 128, she says:"““One way of explaining Fairchild is that all were in breach of duty and one of them must be guilty, so that it made sense that all should be liable. That rationale does not apply, or certainly not with the same force, if there are other, non-tortious causers in the frame. But if the tortious exposers are only liable in proportion to their own contribution to the claimant’s overall exposure to the risk of harm, then the problem does not arise.””" Why is that a problem? It is a problem because, given that those two issues were decided together as a package deal, if one of them is reversed, that raises the question of what the courts will do about the other. If we simply go back to joint and several liability, overturning the decision of the Law Lords on the issue of apportionment, the danger is that the Law Lords will say, ““In that case, the claimant in Barker can’t win at all. In fact, there is no liability to the claimant in Barker.”” If that happened, that claimant would be in a worse position after the Bill than before it. At present, under the Barker decision, at least they can get some damages if they can find one of the various employers who will pay—who is in a position to pay. However, after the Bill goes through, there will be no liability at all and they will get nothing. The question is whether the drafting of new clause 13 overcomes that problem. I fear that it does not. One argument might be that subsection (2)(a) of new clause 13 states:"““irrespective of whether the victim was also exposed to asbestos—""(i) other than by the responsible person, whether or not in circumstances in which another person has liability in tort””." One could say that that covers the problem and that what is intended is to reverse only the pro-defendant aspect of Barker, not the pro-claimant aspect. The trouble with that interpretation of the new clause is the way in which subsection (1) is written. I hope that the Minister will take this point on board. Subsection (1) states, ““This section applies where”” and then it lists four conditions. The fourth condition is:"““the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a)””." In other words, not by virtue of the exposure mentioned in subsection (2). That means that subsection (1) comes first and one has to decide whether the claimant was liable in tort on the basis of the old law, or the law as the courts put it, not on the basis of the rest of the new clause. That gives rise to a serious problem in relation to what the effect of the new clause will be. There are two points for the Government to clear up. First, what exactly do they intend in relation to Barker? Do they intend to reverse only the aspect of Barker to do with joint and several liability and to leave alone the case’s extension of the Fairchild rule, or do they intend to allow the courts to decide what to do about that other aspect? Secondly, if they do intend that both aspects of Barker should be decided in favour of the claimant, are they confident that the present drafting of the new clause achieves that aim? All I ask them to do is to consider those questions.