The Civil Liability Bill seriously undermines the oath sworn by Lord Chancellor David Gauke to defend the independence of the judiciary, claimant lawyers have argued as the bill near the end of its parliamentary journey.
The bill has its report stage and third reading in the House of Commons today, with Labour trying one last time to remove the compensation tariff for whiplash injuries of up to two years, and also to limit the increase in the £1,000 small claims limit for personal injury (PI) claims to £500 a time when justified by reference to the consumer prices index.
The government wants the limit – which is not dealt with in the bill because it can be changed by secondary legislation, but is a central part of the reforms – to go up to £5,000 for road traffic injuries and £2,000 for all other PI claims.
In its briefing to MPs, the Association of Personal Injury Lawyers tried a new tack in its lobbying efforts.
It said: “Upon taking office, the Lord Chancellor has to swear an oath in which he says he will ‘defend the independence of the judiciary’. These clauses in the Civil Liability Bill seriously undermine that oath.
“Instead of defending the independence of the judicial process, the Lord Chancellor is sending a clear message to the judiciary that he no longer trusts the ability of the judiciary and the court system to decide fairly what is due in compensation to injured people.
“Compensation based on years of legal precedent is relegated simply to the award of an amount from an arbitrary tariff.
“It is quite a feat for the government to introduce a bill which undermines judicial independence and precedent, as well as attacking the rights of injured people.”
The amendments are unlikely to pass, with claimant lawyers in reality targeting the secondary legislation that will be made under the bill in the future to
One feature of a higher small claims limit that has not been widely debated in Parliament is the likely impact on county courts.
Last year, the civil executive team – a group in the judiciary that was headed by the now Supreme Court justice Lord Briggs – warned the government that any savings were likely to be outweighed by the significant extra burden litigants in person (LiPs) would put on the small claims court.
One of the other authors of that report, His Honour Judge Nigel Bird – designated civil judge for Greater Manchester – spoke about it at last week’s Motor Accident Solicitors Society conference in Sheffield.
He told delegates that given the large number of LiPs already bringing cases, the issue was what would happen to the volume of cases, especially against a background of fewer courts and unfilled judicial posts.
As to whether the courts would cope, he said: “If the online court develops and takes in PI, and if the portal is adapted to work with litigants in person, and if the number drops, then yes, we’ll cope.
“The reality almost certainly is that the system will cope anyway; if it doesn’t, then something will have to give… The real question is whether that coping is actually good enough.”
He referred to research that showed cases brought by LiPs before a circuit judge were actually shorter than average trials, possibly because they were not arguing the right points.
HHJ Bird continued: “It may be that if the court copes and the numbers dropped, then the access to justice element has failed because there are people who are not being adequately compensated.”
He also suggested that, despite the introduction of tariffs, fewer LiPs might settle. “It seems to me, and I may be wrong, that a LiP is more likely to think that offers are not reasonable and would prefer to have an independent judge deal with the matter than just accept the offer.”