My Lords, I am moved to move this amendment, inserting the words,
“which consists of or includes a claim”,
so that Clause 49 would read,
“proceedings on a claim which consists of or includes a claim for damages in respect of personal injury”,
because immediately after Committee, when we had a very good debate on what is now Clause 49, a number of people on all sides of the House expressed to me concern that quite often a claim for personal injury is accompanied by another claim, such as a claim for credit hire, that is often found to be bogus, made up, exaggerated or just plucked out of the air. Also, so far as whiplash injuries were concerned, a number of colleagues were concerned about the allegation that we had become the whiplash capital of the world, and wanted to create a deterrent to someone who had damaged their vehicle through a shunt or an accident, had recovered the repairs to their vehicle but then, as a result of a text message or some other marketing effort, decided to bring a claim for whiplash. It was put to me that thousands of such claims were being made that really were promoted by claims management companies without any substantial reason for the claim being made in the first place.
So I have tried here to extend the remit of the sanction for fundamental dishonesty to cover not only injury claims but claims presented where the injury itself is used as a means by which a dishonest claim—for example, a claim for credit hire—is made. I do this by aligning the wording in Clause 49 with that in, for example, Rule 44.13 of the Civil Procedure Rules 1998, which spells out the scope and intention of qualified one-way cost shifting. I hope that noble Lords will understand that I do not really need to repeat in detail the Civil Procedure Rules; suffice to say that I am aligning the amendment in accordance with that rule. Its wording is also aligned with Section 11 of the Limitation Act 1980. Again, for the record, I say that it is Section 11.
The amendment would capture vehicle repair costs paid before a dishonest injury claim was presented, but I believe that its greater impact would be in the arena of credit hire claims where genuine injury claims are frequently used as a means to present a dishonest, either fabricated or exaggerated, claim for hire. I could cite a whole series of relevant cases but I am not sure that noble Lords wish me to go into too much detail. There are a number of them where claims management companies, one in particular, presented 36 claims, 35 of which subsequently proved to be completely fabricated and, when challenged, were withdrawn. One claim was pursued but dismissed at first instance. As a result of that dismissal there was an appeal to the Court of Appeal, which said, “I think there should be a retrial”. The retrial began but, after evidence-in-chief, the claim was suddenly withdrawn so no claim for damages was maintained. Of course one can only speculate about why it was withdrawn. I refer to the case of Basharat Hussain v Adil Hussain v AVIVA UK Insurance Ltd, a reported case that is an example of exactly what I am hoping this amendment will stop—fabricated claims associated with an injury claim being made. I am sure that there would be all sorts of
problems, but I hope that my noble friend will agree at least to give this a little further thought so that we can ensure that Section 49 is effective.
9.45 pm
I shall also speak to my Amendment 130, on a matter where there is a government amendment already. This applies to Clause 49(5). Section 51 of the Senior Courts Act 1981 states that:
“Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in … the civil division of the Court of Appeal”,
or any court, are in the discretion of the court. Based on the original draft of Clause 49(5), it would not appear that it was the intention to remove the discretion as to the costs order to be made. The proposed amendment tabled by my noble friend the Minister conflates the order and the assessment, but it is unlikely that the assessment of costs will take place at the same time as the costs order is made. Therefore, surely it should be clear that, first, the court retains a discretion as to the costs order made; and, secondly, that the costs still need to be assessed separately. Once the costs have been assessed, if an order is made in the defendant’s favour, then the sum recorded in accordance with subsection (4) as to the amount the court would have awarded in damages is deducted from the assessed sum.
I hope that my noble friend the Minister will regard this amendment as necessary to ensure that what he intends to do is properly reflected in the statute. So far as Amendment 128 is concerned, I beg to move.