Chamber
Meeting of the Parliament 26 April 2018
26 Apr 2018 · S5 · Meeting of the Parliament
Item of business
Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill: Stage 3
I will speak against amendments 1 and 2. If amendment 2 is agreed to, we will support amendment 2A. I confirm that we will vote for amendments 3 and 4.
At the outset, I declare that I am a practising solicitor—I hold practising certificates with the Law Society of England and Wales and the Law Society of Scotland.
Amendments 1 and 2, in the name of Daniel Johnson, seek to allow pursuers’ solicitors to take an element of the claimant’s damages for future loss when calculating their success fee. At stage 2, the amendment to ring fence damages for future loss and to exclude them when success fees are calculated was unopposed. I believe that the ring fencing of damages for future loss is the right thing to do. When someone has been injured, damages for future loss are paid to put them back in the financial position that they would have been in if they had not been injured and, crucially, to fund the costs of care and support. In such circumstances, a need will have been identified and a sum awarded to cover it. I cannot see that it is right to reduce any element of that and thus potentially prejudice the amount available to the pursuer for their future care and support in order to reward and incentivise pursuers’ solicitors.
In the same item of business
The Deputy Presiding Officer (Christine Grahame)
SNP
The next item of business is consideration of stage 3 amendments to the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill. In dealing with am...
The Deputy Presiding Officer
SNP
I call group 1. Amendment 34, in the name of Margaret Mitchell, is the only amendment in the group.
Margaret Mitchell (Central Scotland) (Con)
Con
For an ordinary member of the public, understanding civil litigation can be a complex and confusing process. The Civil Litigation (Expenses and Group Proceed...
Daniel Johnson (Edinburgh Southern) (Lab)
Lab
I share many of Margaret Mitchell’s concerns, and it is important to note her comment on the proposals in the bill being about increasing access to justice. ...
Liam McArthur (Orkney Islands) (LD)
LD
Like Daniel Johnson, I think that Margaret Mitchell very fairly identified an issue. Access to justice is predicated on there being a level of transparency a...
The Minister for Community Safety and Legal Affairs (Annabelle Ewing)
SNP
I refer members to my entry in the register of interests. Members will note that I am a member of the Law Society of Scotland and that I hold a current pract...
Margaret Mitchell
Con
A number of points have been raised. Daniel Johnson said that the amendment might prohibit settlements at the court door, but there is nothing to prevent a p...
The Deputy Presiding Officer
SNP
The question is, that amendment 34 be agreed to. Are we agreed? Members: No.
The Deputy Presiding Officer
SNP
There will be a division. As this is the first division of the stage, the Parliament is suspended for five minutes. 14:44 Meeting suspended. 14:49 On resum...
The Deputy Presiding Officer
SNP
We will proceed with the division on amendment 34. For Balfour, Jeremy (Lothian) (Con) Ballantyne, Michelle (South Scotland) (Con) Bowman, Bill (North Ea...
The Deputy Presiding Officer
SNP
The result of the division is: For 29, Against 84, Abstentions 0. Amendment 34 disagreed to. Section 4—Power to cap success fees
The Deputy Presiding Officer
SNP
We come to group 2. Amendment 5, in the name of the minister, is grouped with amendments 6 to 8, 13 and 14.
Annabelle Ewing
SNP
Amendments 5 to 8 are technical in nature. We have been working with Her Majesty’s Treasury on the United Kingdom Financial Guidance and Claims Bill, which w...
The Deputy Presiding Officer
SNP
We move to group 3. Amendment 1, in the name of Daniel Johnson, is grouped with amendments 2, 2A, 3 and 4.
Daniel Johnson
Lab
I will speak to amendments 1 to 4 in my name and against Margaret Mitchell’s amendment 2A. I apologise in advance, Presiding Officer, as these are complex a...
Margaret Mitchell
Con
Amendment 2A would amend amendment 2, in the name of Daniel Johnson, the effect of which would be to remove the ring fencing of future loss that was agreed t...
Daniel Johnson
Lab
Does the member recognise that the awarding of additional fees, as she has set out and which she is setting a great deal of store by, is done in only 5 per c...
Margaret Mitchell
Con
We are looking at legislation in which it is clearly set out that those cases are very complex, and the award amounts that we are talking about refer specifi...
Liam McArthur
LD
It is difficult to admit that we got it wrong, but I think that that is exactly what all of us on the committee did at stage 2. There are mitigating circumst...
John Finnie (Highlands and Islands) (Green)
Green
I associate myself with the comments of my colleagues Daniel Johnson and Liam McArthur. I am prepared to say that it is important that we constantly reflect ...
Liam Kerr (North East Scotland) (Con)
Con
I will speak against amendments 1 and 2. If amendment 2 is agreed to, we will support amendment 2A. I confirm that we will vote for amendments 3 and 4. At t...
Daniel Johnson
Lab
Would Mr Kerr not recognise that the proportions that are charged under success fee agreements at the moment can be as high as 60 per cent, as Liam McArthur ...
Liam Kerr
Con
I will come back to that point, but I want to deal with a point that Daniel Johnson made earlier. He criticised the insurance industry for allegedly wishing ...
Annabelle Ewing
SNP
What evidence can the member cite to support that claim? He will be aware that it has been refuted by, for example, the Association of Personal Injury Lawyers.
Liam Kerr
Con
That is quite so but, in committee, we received a variety of evidence that suggested that there was a possibility of that happening and that it had happened ...
Annabelle Ewing
SNP
I rise to support Daniel Johnson’s amendments 1 to 4. The bill as introduced followed Sheriff Principal Taylor’s recommendation that an award for future loss...
Liam Kerr
Con
In those conversations with solicitors firms, did many of them report back that, if the future loss was ring fenced, they would cease to act in personal inju...
Annabelle Ewing
SNP
We have to look at the facts that are before us and listen to the evidence that has been submitted to me as the minister and to the committee. People are tel...
Margaret Mitchell
Con
Does the minister acknowledge that the situation in England and Wales is not analogous with the situation in Scotland, and that we are not comparing apples w...
Annabelle Ewing
SNP
I have already dealt with that point. Notwithstanding the issue about judicial expenses, the architect of the policy south of the border has effectively reca...