My Lords, I beg to move. This amendment follows very closely the wording of the draft Bill of the noble Lord, Lord Lester of Herne Hill, concerning a similar clause. I am confident that it
will at least pass the test of being a clause that ought to be on the face of the Bill and that it does not contravene the rule we are applying to ourselves that we should not legislate for case management. The purpose of moving this amendment is to complement the stiffer or changed test that we have discussed in relation to Clause 1; this same purpose was served when an identical amendment was moved in the House of Commons. In that sense the test itself will not serve the purpose that we all seek unless it can be applied early in the proceedings. If it is obvious that the claim being made cannot meet the test, the action can be struck out. In my view, with which I think the Government agree, an effective strike-out procedure is necessary to ensure that trivial and vexatious claims are struck out at the earliest possible opportunity.
We seek to put this procedure into the Bill because in this legislation we are seeking to make the law as clear as it possibly can be for the ordinary citizen. We seek to encourage those who are not legally qualified with the assurance that if there is utter merit in their position, they will be able to resist an action brought against them by having recourse to a strike-out procedure at an early stage of their engagement in legal proceedings. The amendment therefore seeks to add a strike-out provision to Clause 1 by means of a new clause that would imposes a duty on the court to strike out an action if it does not satisfy the serious harm test in Clause 1. It would allow the court to do that either of its own accord or on the application of a party. I note from the annexes and the letter dated 10 December 2012 that the Government themselves seek to create a series of opportunities in which a case can be struck out on the application of a party, or at a later stage in the process by the court of its own accord. To that degree, we are not entirely in sync, but we are in agreement.
When this point was raised in the House of Commons, the Minister said that the Government’s position was that they did not consider a provision for strike-out to be necessary. I anticipate that the Minister will respond that it is the intention of the Government to revisit the normal rules, in particular Rule 3.4, which is the rule that is referred to in the noble Lord’s letter. It is our firm belief on these Benches that this of itself will not and cannot be guaranteed to be sufficient. Putting this provision in the Bill will not in any way undermine the ability of the rule to be applied, but there is a distinct difference between what the Minister and the Government seek and what we on these Benches seek. The existing rule says that the court may strike out the claim. This provision would require the court to strike out the claim.
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For the most part we have adopted the analysis, workings and suggestions of others and have applied them to the Bill on the basis that they will send a strong message and provide significant reassurance to those people who we seek to reassure by the revision of this legislation. Before sitting down, I would remind the Minister of a conversation in which Members on our Benches argued with him. I am glad that we seem at least to have contributed to the Government’s change
of mind; namely, that the use of the county courts may be part of the answer to this problem. If some of the work we have commissioned bears fruit, and we can expose that work to the Committee, we may seek to amend the Bill at a later stage. Perhaps this is an issue that we can discuss as we have a little time between the beginning and the end of the Committee stage. We should look at whether we can make common cause on this issue, given that we have been told that the present Lord Chancellor favours this sort of development too.