Examination of Witnesses

Legal Aid, Sentencing and Punishment of Offenders bill – in a Public Bill Committee at 4:00 pm on 12 July 2011.

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Linda Lee, Peter Lodder, Deborah Turner, Claire Fazan gave evidence.

Photo of Jim Sheridan Jim Sheridan Labour, Paisley and Renfrewshire North 12:00, 12 July 2011

Thank you very much for coming along. We will now hear oral evidence from the Law Society, the Bar Council, the Family Mediation Council and Leigh Day and Co Solicitors.

For the record, would you please introduce yourselves to the Committee?

Linda Lee: My name is Linda Lee. I am president of the Law Society.

Peter Lodder: My name is Peter Lodder. I am the chairman of the Bar Council.

Claire Fazan: My name is Claire Fazan. I am a partner in the firm of Leigh Day and Co.

Photo of Jim Sheridan Jim Sheridan Labour, Paisley and Renfrewshire North

I am having some difficulty hearing. I do not know if it is the acoustics. If witnesses can speak a bit louder in future, that would be extremely helpful.

Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick strictly to the timings in the programme motion, which the Committee has already agreed. I sincerely hope I do not have to interrupt people in mid-sentence but I will if need be.

Q 7878

Photo of Yvonne Fovargue Yvonne Fovargue Labour, Makerfield

The Bar Council has today issued a report that said the measure is do-it-yourself justice. What impact will there be on courts and the numbers of litigants in person? What about vulnerable people who cannot represent themselves?

Peter Lodder: We have indeed made such a statement because what I hear from young family barristers is the danger of serious damage to the safety net for children, vulnerable people and hard-working families. What I hear from judges in already busy court centres is the significant risk that those people, who will now be forced to conduct their own cases—in other words litigants in person—will clog up the courts and dramatically increase the cost of the system. In our view, this is a serious and worrying prospect, particularly because among the wide group I speak to—not just other members of the Bar but judges, interest groups and members of the public who write because they share our concern for the interest of justice—there is huge scepticism that any savings will result from these cuts. Vulnerable people’s positions are going to be compromised. People are going to be forced into a position where they have to act on their own behalf in alien surroundings under conditions of great stress and we think it will cost more.

Linda Lee: It should not be forgotten that these cost proposals will also impact on middle England. You will see a group of people who have hitherto had access to the courts, denied access because they will not have assistance. Anybody faced with a difficult and complex case to bring will have difficulty dealing with that themselves.

Photo of Jim Sheridan Jim Sheridan Labour, Paisley and Renfrewshire North

Before calling the next Member, I believe we have been joined by the Family Mediation Council. For the record, could you introduce yourself?

Deborah Turner: I am Deborah Turner, Convenor of the Family Mediation Council, which is a council of the professional bodies for family mediators.

Q 79

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

My question is to Peter Lodder primarily, but Linda may be able to help as well. I declare an interest as a criminal legal aid practitioner until the election. It has been suggested by some quarters, including the Labour party, that more savings could be made in the field of criminal legal aid. We come to the Bill after many years of retrenchment in criminal legal aid. What do you say to the proposition that more cuts can be made in that area?

Peter Lodder: Let us look back to the last day of the previous Administration. I am not in the business of putting one party against the other, but on the final day of the previous Administration, criminal advocacy fees were cut by statutory instrument by 4.5% successively over three years—a total of 13.5%. On top of that cut, there are many cuts here, which will see, for example, the fees paid in murder and manslaughter cases being  cut by yet another 25%, so we are talking about nearly 40% worth of cuts over very few years. This is against a background of no rise in fee income for in excess of 15 years, because fees have been frozen over that period. I am not pleading for more money but I am saying that you are cutting us a lot already.

Linda Lee: It is well known that we have put forward a raft of alternative proposals. We invite the Government again to look at those proposals, and perhaps in more depth than previously. We agree that savings have to be made but we think savings can be made without impacting directly on the vulnerable. I think Peter would agree with me that our concern is not really about the lawyers involved in this. A very tiny percentage of solicitors in England and Wales are now involved in legal aid work. We are interested in the impact on clients who need help. I think we can say we are united on that point.

Q 80

Photo of Karl Turner Karl Turner Labour, Kingston upon Hull East

I have to say to the panel that I have had longer to cross-examine witnesses on a simple road traffic offence—someone parking on the zig-zags—than I have to take evidence from you today. I will try to be quick, now I have made that point.

I have some concerns about the definition of domestic violence in the Bill. Could you help me with the impact that that will have from a practitioner’s point of view?

Peter Lodder: We have suggested that the definition used by the Association of Chief Police Officers—clearly an authoritative definition—is the one that should be used. The Government have chosen not to do so. They have chosen what appears to be a narrower definition. Obviously, we do not know exactly what that will mean, save that it must be that fewer people will fall within the definition, and therefore fewer people will be eligible for what little legal aid is left.

The problem is further increased by the fact that now, in the absence of domestic violence, people will not get legal aid. If a client presents at a solicitor’s office on the back of a matrimonial dispute, and is asked whether there is any evidence of domestic violence, and they are aware of the fact that that is the only way that they will get legal aid, there is a strong incentive to say that there is indeed violence.

The problem compounds. If that allegation is made it must be investigated, and that will bring in other authorities, at greater expense. In addition, assuming for the moment that it is a false allegation, although the person making the allegation will get legal aid, the alleged perpetrator will not. In court, someone who may be facing a false allegation will have to defend himself—it will probably be himself—and will risk losing everything: children, liberty, home, you name it. They will have to defend themselves in that circumstance. We do not see how that can possibly advance access to justice.

Linda Lee: I do not need to add anything from a practitioner point of view, but as you well know from the Government’s impact assessment, this will mean not bringing huge numbers of cases, which should properly be brought in to protect—in the majority of cases—women and children. All the proposals have a disproportionate impact on women and children, and this is a particular example.

Q 81

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

It is a pleasure to serve under your chairmanship for the first time, Mr Sheridan.

Mr Lodder, how many barristers travel first-class on the railway?

Peter Lodder: I have no statistics, but I can tell you I do not.

Q 82

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

You have never heard of any travelling first-class and charging it to the taxpayer?

Peter Lodder: No.

Q 83

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

What would you say to the suggestion that £10 million can be saved by limiting all but essential advocates’ travel to court and hotel expenses, and no longer paying for first-class travel?

Peter Lodder: I have already said that I do not know to what extent that is used. I doubt very much that it is.

Q 84

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

That is the suggestion of your neighbour, in her cost savings. What do you say to capping fees?

Peter Lodder: I think it is a slightly unproductive process to invite me to enter into a battle—

Q 85

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

You have just said you were united, so I just want to check the degree of union. What about capping fees at £250,000; do you support that as an idea?

Peter Lodder: Forgive me, I do not want to appear to be arguing with you, and I certainly do not want to appear to be arguing with Linda Lee. The point is that we are united in asserting that the proposals that the Government have set down in the Bill are deeply harmful to justice. If you want to trim around the edge on travel costs and the like you might find it a profitable line of inquiry. Personally, I would not. We know what we agree on, and we agree on the fundamentals.

Q 86

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

I just want to explore the Law Society’s other savings, which they have been trumpeting. As far as I can make out, about £42 million comes from the Bar, which is already under considerable pressure in criminal and family cases. Is that something that you have discussed with the Law Society?

Peter Lodder: I know what they have said. I do not particularly agree, but I am not going to have that spat publicly here.

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

That is £42 million that the Law Society proposes—

Peter Lodder: I do not accept what they said, but I am not in a position to argue it here.

Linda Lee: Perhaps I could help. We have relied on information provided by the Legal Services Commission and I think your question is probably more properly directed at them.

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

It is not. I just wanted to check what the Bar thought of your proposals to trim £42 million from their fees.

Q 87

Photo of Kate Green Kate Green Labour, Stretford and Urmston

I want to ask a question specifically of Claire Fazan from Leigh Day about the impacts that you think the reforms will have on civil litigation on cases such as Trafigura, which, very famously, your firm  pursued. I wonder whether it would be helpful, for the benefit of the Committee, if you explained a little of the background to the case as well.

Claire Fazan: I am sorry. There has been a misunderstanding. I am a clinical negligence specialist. That is my area of expertise. I am afraid that that is the area on which I have come prepared to answer questions.

Q 88

Photo of Kate Green Kate Green Labour, Stretford and Urmston

Is anyone else able to comment on that case, or on the impact of civil litigation generally?

Claire Fazan: I can talk very vaguely about it as a person within the firm but, as I say, I have not come prepared because I understood that this was going to be about clinical negligence, which is my area of expertise. What I can say is that it will make it very difficult indeed for the big group cases to be run where it is expected that costs are going to come out of compensation, and where there is a proposal that there is not going to be any insurance. Beyond that, it is slightly difficult for me to go into any further detail without a bit of further preparation.

Linda Lee: I could answer in general terms. In general terms, these types of litigation are being hit twofold. On the one hand, the availability of public funding will be gone. On the other hand, running cases on a no win, no fee agreement for risky, difficult or complex cases will become increasingly difficult and unlikely to occur. That is our broad position on all types of litigation. That will impact on a whole range of people.

Q 89

Photo of Ben Wallace Ben Wallace Conservative, Wyre and Preston North

I want to try and explore the effects of the impact of the success fee. On Trafigura, my understanding is that the legal costs for that case were £100 million.

Claire Fazan: I am sorry. I have come prepared to deal with clinical negligence.

Q 90

Photo of Ben Wallace Ben Wallace Conservative, Wyre and Preston North

I can tell you the facts, if you want, about the costs, because I would like your view on the success fee, which is relevant both to clinical negligence and other parts of the law.

Claire Fazan: I am happy to talk about success fees in clinical negligence cases.

Photo of Ben Wallace Ben Wallace Conservative, Wyre and Preston North

But the success fee is a more general concept; it is not just confined to clinical negligence. It is about whether you think the success fee is a principle that needs reforming, as Lord Justice Rupert Jackson’s review tried to change. The legal fees for Trafigura were £100 million; the awards were £30 million. In the Naomi Campbell case with The Mirror, her awards for damages were £3,500 and the legal fee award was £1.4 million. In both cases, the success fee made up nearly 50% of the legal costs. What is clear from the example of both cases is that the success fee, as in many other cases of success fee, is not shared with the claimant; it is shared by the lawyers to compensate them for failing cases elsewhere. That is the principle of the success fee as it was changed, the latest in 2003, to compensate them for other failing cases they might have elsewhere and to close the risk.

Photo of Ben Wallace Ben Wallace Conservative, Wyre and Preston North

Mr Turner, you were not here at the beginning of the sitting this morning, so if you listen you may learn something.

Photo of Jim Sheridan Jim Sheridan Labour, Paisley and Renfrewshire North

Ben, carry on. Try and ask a question and get an answer.

Q 91

Photo of Ben Wallace Ben Wallace Conservative, Wyre and Preston North

On the success fee issue, do you think that it is okay for defendants to pay excessive fees to compensate lawyers for non-performing cases they may or may not have against other defendants?

Claire Fazan: I will deal with part of that. The crucial thing in terms of limiting the costs of civil litigation is dealing with litigation behaviour. The concept that has been proposed by many people in the context of these reforms is that there should be fixed success fees that are tied to stages of litigation, and which are designed to impact on litigation behaviour. Therefore, no success fee is payable in a case where during the pre-action protocol period there is an admission of liability. The defendant should not pay anything then. If there is an admission of liability at any stage up until the key trial preparation is being done, which is usually talked about as being about four weeks before trial, there should be a success fee, but not the sort of success fees that people are talking about in the press—100%. There should be a limited, structured, fixed success fee.

It is only when a case is litigated by defendants to trial or to immediately before trial because of delays in dealing with settlement of cases that the 100% success fee comes in. In the field of clinical negligence litigation that is a typical pattern. It is only at the last stage that admissions are made and cases are settled. Very few cases go to trial. They are settled very late in the day, regardless of how they are funded. It is in those cases that are taken in the very late stages or to trial where if a claimant succeeds in proving what would have been the subject of an admission, or is indeed the subject of a late admission, it is entirely proper that they should recover a success fee.

Linda Lee: I agree entirely with Claire. What you have to remember is that it is very dangerous to look at one case and say, “That doesn’t sound right to me,” because you do not know all the circumstances of that case. The answer is that the court judges the circumstances of that case. On request of the paying party, the court can look at the bill, look at the success fee and decide whether or not that was appropriate. If the court feels that it was not appropriate, it marks it down. There is a test to establish whether or not it is a fair fee. The second thing is that you hear only about the cases where the defendant has lost and, as Claire said, they have chosen to pursue that claim to trial. You have to question why in many cases.

Photo of Jim Sheridan Jim Sheridan Labour, Paisley and Renfrewshire North

Very briefly, Ben—and very brief answers as well.

Q 92

Photo of Ben Wallace Ben Wallace Conservative, Wyre and Preston North

I understand that when a defendant loses, he pays compensation. He or she pays for their failure in whatever field. I am talking about the extra bit—the success fee—where that defendant pays for some other failing case elsewhere or to compensate the lawyer for taking on cases in other fields. I understand that the people culpable should pay for the mistake they make and that they should make reparations and so on. It is the extra bit I am concerned about. One of the big law firms described it on its website this morning as a “win bonus” that went to the lawyer. I do not see why that principle is fair.

Linda Lee: The purpose of it is entirely because, as a solicitor, you take on a risk. If I were running a spread of clinical negligence cases, I would look at how much risk the firm could stand. If solicitors are to take on riskier cases, there has to be a fighting fund. Yes, you are right that that was the original principle, but the award is not simply about giving you a fighting fund; it is far more complex than that.

When you set up a conditional fee arrangement, you have to notify the other side that you have entered into it and provide information to the court, as I said, about how you arrived at that figure. You do not simply say, “I’d like 100% please.” You have to explain the risk and the levels of risk. Also, the defendant’s behaviour is looked at. The defendant has an opportunity to settle at earlier stages. They generally have the knowledge and information, and that opportunity. But the proposals in the civil costs part of the Bill say that the defendant should take no risk or responsibility for their behaviour and that instead it should be the injured person who does that because you are talking about not recovering that element from the defendant; you are talking about recovering it from the claimant. So the claimant does not get 100% compensation for the injury they have suffered.

Photo of Jim Sheridan Jim Sheridan Labour, Paisley and Renfrewshire North

We may return to that issue if time allows.

Q 93

Photo of Dave Watts Dave Watts Labour, St Helens North

I think it is generally accepted that the Government’s proposals will reduce the scope and the number of people who will be eligible for legal aid in the future. That will leave a gap in the justice system, which the Government seem to think they can fill through mediation—at least, one of the mechanisms is mediation. First, are there enough mediators around to do this? Secondly, in your view is mediation a substitute for court action?

Linda Lee: I will answer first and then I think Deborah should come in after me. Mediation is a very good tool in any litigator’s armoury. The point about mediation is that it has to be used at the right stage, in the right case, in the right way. You cannot simply say, “It is day three, we will now apply mediation or it doesn’t work.” The most successful mediations, as with the most successful court actions, are where the parties have been properly prepared. The issues have been narrowed down and time is saved so people are ready to settle. I think Deborah will talk about numbers of mediators.

Deborah Turner: I can talk only about family mediation, in which numbers are increasing. There is a potential problem about capacity, there is no point pretending that there is not. The pre-application protocol, which came into force in April requiring privately funded parties to attend an assessment meeting, has meant there is a good deal of training going on at the moment. Numbers are increasing.

Q 94

Photo of Dave Watts Dave Watts Labour, St Helens North

What will happen in cases where they have been referred for mediation and that mediation fails? How do you end the process?

Deborah Turner: On the subject of family mediation, if the mediation fails, it breaks down. Normally what would have happened was that the parties would return to their solicitors, but there is going to be a void and it is a great worry. We are worried it will put undue pressure  on mediators to keep mediations going after they have actually ceased to be sustainable, and also pressure on assessing the unsuitable as suitable in the beginning, because we are very well aware that parties are going to have no where else to go.

Peter Lodder: There is a very important point here. Mediation is available to people who come to it with a desire to mediate. The current situation is that they have to go through that process, but they approach it having been advised and with the support of the advice given, knowing what that process is about. They are much more likely to engage upon that basis. Where they are told that they must go into it and they do not have the support of any structure around them, they go into an alien environment, forced to do something that at least one party will not want to do. That will simply inflame the situation, which then spills out the other side, into litigation. Under these proposals, that litigation will also not be supported, and so you have people—who tend to be at one of the most stressful points in their lives and therefore pretty unlikely to accommodate the needs of the person causing that stress—in face-to-face contact with no one between them and no safely consensual outcome.

Claire Fazan: In my field of clinical negligence, we have a requirement from the court that there is alternative dispute resolution at a particular stage in the case. The vast majority of clinical negligence cases that are settled after the pre-action process, which is before you have actually issued proceedings, are settled through an alternative dispute resolution process, whether formal mediation or another form of mediation between lawyers. That is incredibly useful but it can only be done when all the evidence is available to everybody, which is inevitably at a later stage in the case. It is litigation that leads to mediation or alternative dispute resolution.

Linda Lee: The problem is that there will be nowhere for these people to go, and the cost will be picked up by other agencies downstream. There will also be a social cost and that is unavoidable.

Deborah Turner: May I add that we feel there is a very real danger that those cases which cannot be resolved in family mediation and have nowhere else to go, will end up in court and you will have some very, very stressed-out litigants in person?

Q 95

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

I want to return to the issue of the scope of legal aid. Is it not the case that in other countries with similar legal systems, such as Canada, New Zealand and Australia, there are much lower costs per head of legal aid, the scope is much narrower, and the eligibility for legal aid is much lower. My understanding is that at roughly £10,000 income you do not receive legal aid in those countries. Is the British system not pretty generous in terms of the eligibility for legal aid and the scope that is being proposed under this Bill?

Linda Lee: No.

Q 96

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

Could you comment on those specific countries please?

Linda Lee: Yes, I certainly can. We have made our views on this matter quite public. A lot of the jurisdictions referred to do not use an adversarial system; they use an inquisitorial system.

Q 97

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

I just mentioned three that do use an adversarial system.

Linda Lee: I will come to those, but first I will tackle things one by one. Inquisitorial systems spread the cost elsewhere—

Q 98

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

Excuse me, but I did not ask that question.

Linda Lee: If you are comparing New Zealand, I think that the figure that you have quoted is £8 per head. We know that figure is vastly out of date and the cost is probably at least double that now. But you are talking about a rural population of approximately 4,000 people and you are comparing that with the problems that we have here. If you look at France and you look at the figures that we have—

Q 99

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

I did not mention France. I asked you specifically about the income eligibility in New Zealand and Canada. Could you answer that question?

Linda Lee: What you are looking at are totally different social circumstances and you are not comparing like with like.

Q 100

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

Can you tell me what the income threshold is in those countries?

Linda Lee: I will be happy to provide it in writing after this meeting. I do not have that information now.

Q 101

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

May I put it to you that the Law Society has not actually studied those systems and how they work?

Linda Lee: We have studied those systems and we have provided that information in detail in the past, but we will resupply it to this Committee happily. I also draw your attention to the Foundation for Change document about British Columbia, where similar proposals were enacted and changes were made to legal aid; the document talks about the impact that those proposals have had on the system there. I will send you copies of that document also.

Q 102

Linda Lee: No, I do not, but I am happy to provide it.

Q 103

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

I have looked at the Canadian system and I believe that most of the provinces in Canada have an income threshold of about £10,000 a head.

Linda Lee: And what are the average earnings? And what are the other social circumstances that you are talking about?

Q 104

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

When you look at the British system, where you can get legal aid on incomes up to about £30,000, you see there is a vast difference.

Linda Lee: The threshold of no contribution is income support level; it is a very low level in this country. There are contributions on a sliding scale, going up, and I doubt the figure of £30,000, unless you have a huge family. The fee structure is a complex system. We will be  happy to supply you with information about it and any other information that you want, but you are not comparing like with like and you are not looking at the facts of what you are actually doing here, because you will have an impact here that—it makes no sense. Do not use figures that do not compare. It is a wrong way to justify your position.

Q 105

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

It seems to me that I have put figures to you and you have not put alternative figures for those other countries.

Linda Lee: I do not think that you really expected me to come with the means test for every country in the world to this hearing.

Q 106

Photo of Elizabeth Truss Elizabeth Truss Conservative, South West Norfolk

I would expect, given that those countries are the closest comparators to the British system, that you would have the figures.

Linda Lee: I will provide them.

Q 107

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

I think that we might need some mediation in this Committee before long.

Can I take the witnesses back to clinical negligence, which I am interested in? I declare an interest having practised in family and criminal law for many years, both as a solicitor and a member of the Bar. In particular, I am interested in the removal of a civil aid certificate where clinical negligence has occurred in very serious cases. I know that the Government have rowed back slightly and said that there will be some cover for initial medical reports, which I appreciate are crucial. Overall, what is your view on that? I am asking Ms Fazan to begin with.

Claire Fazan: First, I am not quite clear what the rowing back is. There appears to be a suggestion that there will be some prescribed cases that may fall into exceptional funding, but it is very unclear what the requirement for that will be.

Moving on, let me talk about the profoundly brain-injured children cases, because people have an assumption that it is very easy for somebody who specialises in the field to know the minute that somebody walks into their office that there is a claim that can be won. I wish that was the case. I can only think of one case in 24 years where I have been confident. The reason is that the claimant has to prove the case; the information is in the hands of the health providers, both in terms of documents and witness evidence; and witness evidence is not available until well into litigation, by which time you have had to say what your case is.

Most often, I am faced with unsophisticated people—by which I mean people who are not professionally medically trained—who know they have a baby who, shortly after being born, they have been told is unwell. Imaging shows that the brain is injured, but they do not know why. In order to work out whether that is the result of negligence, I need a midwifery expert and an obstetric expert. To know whether the negligence would have avoided the injury I would need a paediatric neurologist. I may have to organise brain imaging. I will need a neuroradiologist, a foetal-maternal expert and quite  often I will need other people such as geneticists. Only when I have all that information can I say to my clients, “You have a case, which I think has reasonable—not certain—prospects of succeeding”. That is going to be very difficult for families who are devastated and who put all savings and family plans on hold: often they will not have further children because they cannot risk the thought of coping with other children. They are then going to have to find lawyers who will say, “We can take on this case” knowing that at this stage we have no idea whether we can win it. We also have no idea how we are going to fund the cost of these reports. There may be some sort of after-the- event insurance which may pay for it at the end of the day, but how is it going to be paid along the way? Those are big costs for lawyers to carry. We know from the impact assessment that small firms are not going to be around to carry these. They are going to be difficult for any firm to carry in any sort of number. I am afraid the answer is going to be reduced access for justice for the most vulnerable people within our society.

Linda Lee: Clinical negligence litigation plays an important role. In an ideal world this would not be the case, but it does impact on patient safety. With less cases being brought, which we think is fairly apparent from the proposals both to remove legal aid from scope—other than exceptional cases and we do not know what these will be—and the Jackson proposals, which will stop a large number of clinical negligence cases being brought but probably will not impact on smaller-value road traffic claims, one will see a corresponding drop in probity and consideration of problems arising from medical accidents. That is vital to society and to improve patient care.

Peter Lodder: It is important to note that when Lord Justice Jackson produced his report, he envisaged that there would be a legal aid safety net. Conditional fee agreements came in because of the withdrawal of legal aid. If conditional fee agreements are then taken out—or at least reduced to the extent that they are not available to people—and the legal aid that they were there to replace is not itself replaced, there is no provision.

Q 108

Photo of Ben Wallace Ben Wallace Conservative, Wyre and Preston North

I think you said earlier that early disclosure—early sharing—is very important in clinical negligence cases. Would you be supportive of the NHS Litigation Authority being compelled to share reports, etc., much earlier in cases where one could try and resolve things before getting to court or further down the line?

Linda Lee: One of the Jackson proposals was that there should be earlier sharing of evidence. That has improved but it still does not address the basic problem referred to by Claire, which is that causation issues are very complex. That is where you have real difficulty in assessing whether a claim is going to be successful and also the value of the claim.

Claire Fazan: May I give one small example? Often where an adverse incident has occurred—something unexpected has happened and there has been a hospital inquiry—at an early stage I may get a report from the trust, which has carried out an investigation, and it may well say that there were failings in care. The problem is that I have to be able to show that intervention, when they say it should have been intervention, would have been in time to avoid this devastating injury for the  individual and the family. That is not something that is going to be investigated as part of the treatment of my client. It is not necessary for the treatment and so it is an investigation that happens only due to litigation. In litigation we exchange reports very early on. Thanks to cases that have been cited over the years, we now have this sharing of information. Our litigation system for clinical negligence is a very efficient system.

Q 109

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

My first question is to Linda Lee, although the others may want to answer. We consider the Bill, particularly the parts on legal aid, to be essentially a cost-cutting measure without a view to the social costs or access to justice. I think I am right in saying that the Law Society said in evidence that it believes that the cost to the public purse will be higher—in other words, there will be increased costs. Can you explain that?

Linda Lee: It is quite simple. We should have early intervention. Citizens Advice and others have produced figures on actual downstream costs. All the proposals will not make the problem go away. What they will mean is that the problem is not dealt with at an early stage by lawyers—possibly not lawyers; we are possibly talking about not-for-profit agencies—trying to resolve matters. This is not all about solicitors. That early help will not be available, so what happens to those people and to that problem? Do their children end up in care? Are there costs to society? All those problems will happen. We very much feel that you are simply shunting the cost away from the legal aid budget to somewhere else. The cost will be greater. Studies and the Government’s own impact assessment suggest that that will be the case. It is so obvious that I cannot think of what else to say.

Peter Lodder: May I put it into the slightly narrower context of family breakdown? In the midst of a family breakdown, in most cases, there are children. One parent is not going to have custody of those children. Often, when these cases come to court and lawyers are involved, the parent who looks least likely to get custody of the children will be told in no uncertain terms, “You’re not going to get them and, what’s more, fighting it out in the courts is likely to make the situation worse.”

People are not always at their most receptive at times of stress, but they do eventually listen to what is said and many cases are, in fact, settled without the need to go to court. Plenty of evidence supports that—for example, the Council of HM Circuit Judges has given clear evidence on that. If these people are representing themselves, there will be no sensible whisper in their ear. In fact, what they will do is go into court where things will be said—one against the other—that make the situation more, rather than less difficult, and on it goes. The person who feels that they should have custody of the children will not get it and will feel that it is a question of fighting harder and longer. That is what they will do. You will clog up the courts, just as I said earlier and just as many other authorities have said.

Claire Fazan: May I add one other thing to that in the context of clinical negligence? In all the cases in which legal aid certificates have been granted and there has been a pre-action investigation, it is recognised by the Legal Services Commission and I think the MOJ, as well as its being reflected in my practice and that of others, that about 50%—or slightly more—of those  cases are not pursued at the end of the investigation. That is because lawyers are taking a view that it is not a case with reasonable prospects of success. If they fall out of the legal aid scheme, those are precisely the cases that people will be struggling on their own with. They will be clogging up the courts, whereas at the moment they are not.

Peter Lodder: I should have referred to the family justice review, which is being conducted under David Norgrove. It has recently produced an interim report that speaks specifically about the value of legal advice at an early stage to avoid protracted hearings.

Deborah Turner: In the context of family breakdown, I understand that mediations are conducted with the mediator not giving advice. They must not give advice. They can give legal information, but not advice. They are confident that there is the availability of sensible legal advice for their clients. Mediators would feel extremely uneasy about conducting mediations in other circumstances. It is very important for those clients to be able to go and take their legal advice and to know that the decision they come to is sensible and legal.

Q 110

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

May I pursue a point with Deborah Turner? I think that all parties would agree that mediation if possible is better than an adversarial solution. However, in looking at these proposals and the costs involved, do you feel, first, that there are an adequate number of properly trained mediators? Secondly, in dealing with all situations without the back-up of litigation, including where there is an inequality between the parties, do you feel that you might be being set up to fail because so much is being put on to mediators to resolve matters?

Deborah Turner: Family mediators are extremely concerned about these proposals, yes. We can see huge pressures on mediators, not least the expectations of clients who have not had the legal advice that is so vital, as was said earlier. The big risk is that they will come to mediation expecting the mediator to be able to solve all the problems, to tell them what to do, to write it all up. Mediators are not trained to do that, nor should they be.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

One final question, for Claire Fazan principally, about what the landscape is going to be in clinical negligence if all the provisions of this Bill go through. We have heard about the double whammy of removing legal aid from scope and the changes to CFAs. I do not know if you undertake both, but if you had one of the types of cases you talked to us about—for instance, parents coming to you with a catastrophically injured child—how would you advise them if the provisions of this Bill go through, and how do you think your practice will change in the light of that?

Claire Fazan: There is another big question because there were recommendations in Lord Jackson’s report, which could have a major impact on how these reforms may affect this field of work. It involves qualified one-way cost shifting. Until we know what is happening there, it is very difficult to know the answer to your question. As I understood it, his proposal was that, generally, the defendant’s costs would not be paid by a losing claimant except in qualified circumstances. At the beginning of the case, I have to tell my client, “I  don’t know what these qualified circumstances are going to be and whether they’re going to affect you.” The prudent claimant and prudent lawyer will say, “You need to take out after-the-event insurance.” We do not know what the after-the-event insurance market is going to be in this brave new world, whether, in fact, it is going to exist, or whether it is a commercial market that can last.

One answer to your question is partly that I do not know. The second answer is that I will have to take view, based on my case load, of whether this is another case to which I can risk exposing my firm and my staff, or whether I am simply going to have to say, “I’m sorry, I’ve got too much exposure at the moment, you’re going to have to go to somebody else.” The danger is that somebody else will say the same, and so we have an ever-reducing access to justice for these people. It is not through not wanting to help them.

Linda Lee: May I add a small point?

Photo of Jim Sheridan Jim Sheridan Labour, Paisley and Renfrewshire North

Very briefly because other people are indicating that they want to speak.

Linda Lee: My point is about the particular difficulty of clinical negligence. The proposals are for a 10% uplift on general damages, which will pay for the success element from the client, rather than from anywhere else. That will be capped at 25%. There are particular difficulties with clinical negligence, because general damages are uncertain in personal injury cases for the most part but particularly uncertain in clinical negligence, because you are talking about an exacerbation of an injury rather than a pure injury. When you are assessing the risk at the outset and trying to work out how much money your client will get as an uplift, and where the 25% cap will be, it will be impossible. It will be far harder than in a road traffic case. If you look at the Jackson figures, where it is suggested that most claimants will benefit, if you take out the simple road traffic cases, most claimants will not benefit and they will receive less than 100% compensation. It is important that clinical negligence is seen in that context.

Q 111

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

I want to return briefly to mediation, and whether your respective organisations have any proposals for how mediation could be strengthened, enhanced or made more relevant to ensure that more people are diverted from courts, or whether you think that there is precisely the right amount of mediation now and it cannot be increased in any shape or form.

Peter Lodder: Speaking from the perspective of the Bar Council, many, many more barristers now are trained as mediators, and we do see it as a very productive and helpful way of moving forward. You may be surprised to hear that, generally speaking, we do not like litigation, and if you have got to court, something has gone wrong. So any attempt to avoid that outcome is taken, and mediation is a particularly useful way of doing it. But, as I said a short while ago in answer to one of your colleagues, mediation helps only those who really want to do it. You have got to have that mindset and there are people who do not want to compromise. There are people who want to litigate until the absolute end. In those circumstances, frankly it does not matter how keen you are on mediation or how many mediators you train. Those people will pursue their case.

Q 112

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

Is that process of training barristers in mediation complete, or is that an ongoing programme whereby you are seeing more people trained in mediation and therefore they can offer more mediation than is the case currently?

Peter Lodder: Absolutely—it is ongoing. Mediation is undoubtedly a very good way of resolving conflict. By way of simple example, I recently went to Calcutta on behalf of the Bar Council. We have been supporting a mediation scheme there in commercial disputes and mediation is becoming much more widespread. So we absolutely encourage it in all areas of law.

Linda Lee: I just want to add that mediation is not new. I qualified in 1994 and that was about the time when everybody started offering training schemes, because mediation was recognised as being very useful and the Law Society has had accredited mediators for a very long time. So it is an ongoing programme and we all support the concept of mediation and its use in the right place. But there is not a magic formula and I think that Deborah would agree that we cannot make every case settle through mediation. Some cases cannot be settled in that way.

Q 113

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

No, I am asking you whether you have plans, as it seems the Bar Council has, to expand the level of mediation training to be able to deal with more cases through mediation.

Linda Lee: We can cope with as many people who want to train to be mediators as required, because that training system has been in place for a long time. However, it is not the case that we can magically produce a cohort of mediators who will resolve these issues. They will not be resolved in that way.

Q 114

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

So, in your view there is no way in which more mediation could be progressive?

Linda Lee: There are always ways in which there can be more mediation. That depends on the willingness of the parties and also that somebody is willing to pay for the mediation. There is a cost to mediation; it is not free. Probably the limit at the moment on the number of mediators is the amount of mediation that is available to do, but that does not mean that you will resolve more cases by mediation. I think that there is probably an over-supply of mediators for the current level of work. I would be interested to know what Deborah thinks.

Photo of Jim Sheridan Jim Sheridan Labour, Paisley and Renfrewshire North

Order. Could I just mediate now, in the sense that we have very limited time left and we want to move on?

Q 115

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North

I want to return to where we started in Committee, with vulnerable people. The panel of witnesses has made it very clear this afternoon that the Government’s proposals to withdraw legal aid for some of the poorest and most vulnerable people will be quite disastrous for those people, for example the mother who loses her children because she cannot afford to fight for them, or the father who cannot get access to his children for the same reason. What changes should we be making in Committee to this Bill to avoid that disaster?

Peter Lodder: You should restore the proposals to take, for example, family issues out of scope; you should restore a proper definition of domestic violence; you should restore a facility by which people who have  suffered injury through no fault of their own can get representation so that they can have proper compensation; and you should restore a system that means that the compensation they get is the compensation that the court has assessed that they need. Those are the sorts of things that you need to do and we are very happy to provide amendments to help you do that, but the fact is that this Bill gives with one hand and takes away with two.

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North

A direct answer to a direct question. Thank you.

Q 116

Photo of Damian Hinds Damian Hinds Conservative, East Hampshire

I want to return to international benchmarking, because it has been a very important part of the wider debate on this subject. Figures have been cited in Parliament suggesting that there is a huge gap between legal aid costs in this country and those in some other countries, including comparable countries with similar legal traditions. I know that you will probably dispute that and say that it is not a direct like-for-like comparison and so on, but even after you allow for all that, it seems that there is still quite a sizeable gap.

So my question to the panel of witnesses is, “What do you believe are the drivers of that gap?” Linda, earlier you seemed to suggest that, in the case of New Zealand, rurality and a small population were drivers of the difference. Forgive me if I say that that sounds like a counter-intuitive response, because those are usually considered drivers of higher rather than lower per capita costs. So I was wondering whether you stick by that, or whether you think that there might be other drivers in differences of costs between countries?

Linda Lee: I believe that in New Zealand as well there are increased court costs. You are not comparing like-for-like situations. If you want us to do a full analysis on that we are happy to do so, but you are also looking at different levels of criminality, with different percentages of population convicted of crime. I was interrupted when I mentioned France. In this country almost double the amount per 100,000 of people are convicted of crimes as in France. I do not know the social reasons for that but if you drill down into the detail you find considerable differences.

Q 117

Photo of Damian Hinds Damian Hinds Conservative, East Hampshire

If we can just stick with countries that are broadly comparable in terms of the legal traditions, so exclude France for the moment, what do you think are the key drivers of differences in per capita cost of legal aid between countries which, even after you made the adjustments you mentioned, would indicate that this country is still a particularly high-cost country per capita?

Peter Lodder: The countries you are talking about as being similar I assume are Canada, New Zealand and Australia. I do not think anybody would suggest that the social set-up in any of those countries is comparable with this country in terms of the levels of crime, social-deprivation and the needs of society. There are significant differences.

Q 118

Photo of Damian Hinds Damian Hinds Conservative, East Hampshire

What are the main differences?

Peter Lodder: In New Zealand they have a very low population and they do not have, for example, a Moss Side and they do not have serial killers as we do.

Q 119

Photo of Damian Hinds Damian Hinds Conservative, East Hampshire

But how much of the legal aid bill is serial killers and Moss Side?

Peter Lodder: These are aspects that impact on how much you spend. Can I take you to something else? You moved away rather sharply from the comparatives that were being used by the Government with other European countries. One of the reasons why the Government have stopped using those comparators is because the Council of Europe has said that our legal aid costs are average in Europe. Let us compare European countries, as they are more like us than New Zealand. Also, the Legal Action Group in this country—not a lobbyist for lawyers—has said our costs are average for Europe. That is their finding and their research. I have not seen any research which goes into the detail of this to the same degree on the Government’s side in the way the Council of Europe does or the Legal Action Group. [Interruption.]

Photo of Jim Sheridan Jim Sheridan Labour, Paisley and Renfrewshire North

Order. We are close to running out of time, and this issue has had a particularly good hearing. If you could provide an analysis of comparison countries—other European countries—that would be extremely helpful.

Q 120

Photo of Helen Goodman Helen Goodman Shadow Minister (Justice)

I want to go back to the questions about private family law. I would like to ask Deborah Turner in particular a question as she briefly mentioned the fact that in cases of mediation quite frequently one party has more money than another. Do you think that withdrawing legal aid so that people come without the benefit of advice will particularly disadvantage women and children as opposed to men?

Deborah Turner: It is very often the wife who is legally aided and so the answer to your question is yes, there is a big risk.

Q 121

Photo of Helen Goodman Helen Goodman Shadow Minister (Justice)

That being the case, what would the risks be to women and children as opposed to men?

Deborah Turner: The risks are particularly in financial cases. Very often the wife—particularly the wife without her own income—has not had much financial experience. She does not understand how the finances work. It is part of a mediator’s professional duty to make sure that she does understand it, but she very much needs the back-up of sensible legal advice to tell her what is in her best interests, which a mediator cannot do. That is extremely important. A mediator can tell her the legal information, but they cannot advise her as to her best interests.

Q 122

Photo of Helen Goodman Helen Goodman Shadow Minister (Justice)

Do you think the Bill could be amended to ensure that litigants in person, in private family law cases, are not able to cross-examine either children or other adults whom they are alleged to have abused?

Peter Lodder: I do not see how you can do that because who is going to ask the questions? In every case, there are questions to be asked, so that evidence can be contradicted and evidence that suggests that an allegation being made is false can be considered. But if you cannot ask questions of a witness because the only person available is the person who is accused—

Photo of Jim Sheridan Jim Sheridan Labour, Paisley and Renfrewshire North

Order. We have now come to the end of the time allotted for this session. On behalf of the Committee, I thank all the witnesses for coming along. We now move on to oral evidence from the Director of Public Prosecutions.