Hansard

The committee’s stage 1 report considered that the proposed privative limit of £150,000 is too high. It would constitute a 3,000 per cent increase on the current limit, is five times the limit in Northern Ireland and three times the limit in England and Wales for personal injury claims, and is six times the limit for other claims. The proposed increase has been criticised by the STUC, the Educational Institute of Scotland, the Scottish Police Federation, Clydeside Action on Asbestos, the Association of Personal Injury Lawyers, the Faculty of Advocates and the Law Society of Scotland—to mention just a few. Amendment 23 is supported by the Faculty of Advocates and proposes a limit of £30,000. I will go through how that has been arrived at. The argument is that the figure of £150,000 was based on weak analysis, in the Gill report, of old and limited data—93 cases over a three-year period, which represented less than 1 per cent of cases. The Faculty of Advocates and the Association of Personal Injury Lawyers have conducted two separate and more robust analyses of a total of 1,001 cases over 2011 and 2012. The figures were provided to me by the gentleman whom the cabinet secretary referred to as “the learned dean”, which I hope means that he has some confidence in them. Those analyses demonstrate that a much lower limit would achieve the aims of the Gill review. Indeed, 70 per cent of all personal injury cases settle for £20,000 or less, and 80 per cent for less than £50,000. The two analyses suggest that a limit of £100,000 would leave only 13 per cent of personal injury cases with the Court of Session. If the intention is to retain 20 per cent of cases in the Court of Session, the privative limit needs to be between £30,000 and £50,000. The figure of £30,000 is a compromise that would bring Scotland into line with Northern Ireland. Although the Gill review considered cases worth under £50,000 to be “of low value”, the figure of £30,000 is more than the average annual wage, and having a limit of £30,000 would allow people who are resident in Scotland and who have serious life-limiting injuries to access the Court of Session and to have the benefit of advice by counsel. That would help to ensure equality of arms in more serious cases, because most insurance companies would be in a position to afford to instruct counsel. Furthermore, the proposal would not incur costs to the public purse because most personal injury cases are pursued on a no-win, no-fee basis. I asked representatives from organisations that were arguing for a lower limit for examples of cases in which the proposals in the bill would have disadvantaged clients. I will briefly run through some of those examples to illustrate why victims need the limit to be substantially reduced. We are not talking about victims of crime here, of course; we are talking about victims of injustices such as industrial injury or accidents at work. In May this year, a mother claimed for the loss of her 19-year-old son and was awarded £86,000 by the Court of Session. Comparison with similar cases in the sheriff court suggests that, if the case had been taken there, the award would have been around half of that sum. Also last month, a schoolgirl who was injured when a bus that she was travelling in was blown over was awarded £30,000 by a jury in the Court of Session, which found against the bus company. Again, that was a complex case that was won for her by an experienced advocate. Three cases that were brought to the Court of Session in 2010 against the Ministry of Defence by parents who had lost sons who were servicemen in the Nimrod crash in 2006 resulted in awards of between £90,000 and £100,000. In all likelihood, the parents would have received considerably less in the sheriff court—possibly as little as £15,000 or £25,000. A woodworker who contracted nasopharyngeal cancer due to wood-dust exposure lost several years’ pay and was awarded less than £150,000 by the Court of Session. However, if he had not had specialist representation in what was an extremely unusual case of catastrophic injury, he probably would not have received anything at all. In my view, the privative limit must be substantially lowered, for a number of reasons. The calculations on which the figure of £150,000 is based have been proved to be incorrect by analyses of data from two independent sources. The number of cases that are likely to be retained by the Court of Session will be too low to maintain expertise in that court, or to provide adequate opportunity for training young advocates. The high privative limit would also have consequences for commercial cases. I share some of Roderick Campbell’s concerns in that regard, because the bill does not propose a specialist commercial sheriff court. Businesses would therefore be offered the choice between having cases that are valued at less than £150,000 being heard by a sheriff—who, in many parts of the country, as Mr Campbell has said, might not be a specialist commercial sheriff—or writing into their contracts that any disputes will be heard under English law, where cases above £25,000 can be heard in the High Court. Another factor is the important issue of equal access to justice. Most people earn well under £30,000, and significant levels of personal injury could result in claims for much less than that privative limit. However, rather than just being low-value cases, they may still involve catastrophic injury with life-changing consequences, and they may also be complex and require specialist representation. The bill risks creating greater inequality, so the privative limit must be substantially reduced. I propose a limit of £30,000. However, if, during today’s discussion, it appears that the committee would prefer Alison McInnes’s proposed limit of £50,000, I would be prepared to support that, because I firmly believe that the limit must be reduced. I look forward to hearing the views of committee members.