Financial Services and Markets Bill

Part of the debate – in the House of Lords at 4:45 pm on 30 March 2000.

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Photo of Lord Jenkin of Roding Lord Jenkin of Roding Conservative 4:45, 30 March 2000

Perhaps I may begin by making the representations for which the Minister has just asked. I have been reminding myself of the evidence given to the Joint Select Committee about the scheme by Mr Andreas Whittam Smith, acting as spokesman for the ombudsman. It so happens that Mr Whittam Smith and I had a passage of arms three or four years ago, where I sought the help of the Press Complaints Commission. It would be entirely wrong for me to take up the Committee's time in describing the circumstances.

Before I went to the Press Complaints Commission, I had clearly to agree that it was a complete alternative to suing the newspaper for libel. Once I had initiated a complaint with the Press Complaints Commission, I was, as I understood the matter, precluded from taking my case to the courts. I considered at some length with my legal adviser as to whether that was the right course of action in the circumstances. I was advised that the hassle of the courts would not be worth what I might get out of it.

I then had a long battle with the help of the Press Complaints Commission to get Mr Whittam Smith to issue an apology. I am happy to say that after some months his newspaper published an appropriate apology and that was the end of the matter. I cannot quite understand why it is right that someone who can be quite seriously damaged by a newspaper should have to give the kind of undertaking which complainants to the Press Complaints Commission have to give, whereas someone can go to the ombudsman and, if he does not receive the answer he wants from the ombudsman because under the Bill the ombudsman's decision is not to be regarded as final, he is then free to pursue his complaint in the courts.

It may well be that there are significant differences between the two and, obviously, one must not take the parallel too far. But it has always seemed slightly odd that the complainant, having failed to persuade the provider or authorised person that he has a justified complaint, having then failed to persuade the ombudsman that he has a justified complaint, may then continue to pursue his case through other channels at the cost, it seems, of the authorised person. I certainly believe that the amendment in the name of my noble friend on the Opposition Front Bench is one that requires careful consideration.

On the amendment spoken to by the noble Lord, Lord Taverne, I believe that to be a reasonable provision to retain in the Bill in view of the fairly extreme circumstances that the subsection requires before costs can be awarded against the complainant.

I listened to the noble Lord, Lord Lipsey, with some concern. He fears that this provision will deter genuine claimants. With the greatest respect, I do not recognise the circumstances that he describes. I have never met an authorised person, if I may so describe an insurance broker or some such person, who would even remotely behave in that way. Maybe such people exist, but there needs to be a sanction against the totally unreasonable and vexatious complainant. After all, the courts will act in that way, to the extent of ultimately barring someone from the proceedings in the court. If the Attorney-General is prepared to certify that someone is a vexatious litigant, such a person cannot attend the proceedings.

I am unsure why this limited power to award costs in the circumstances of unreasonable behaviour or unreasonable delay should have a bad effect. Perhaps the noble Lord will take that on board. I believe that the amendment of my noble friend is justified. I would hate to see subsection (4) removed because I believe it is a valuable discipline against unreasonable complainants.