Professor Rob Merkin

26 JANUARY 2010

  Q34Chairman: Professor Merkin, first of all, can we welcome you to this Special Public Bill Committee on this Bill, on which, if I may say so, you are evidently a very great expert. We are all extremely grateful for the trouble you have taken both in relation to your first paper, but also your supplementary paper in which you deal with some of the points made by others. Now, one of the great advantages of your first paper is that you deal with things, as it were, clause by clause. I am sure the Committee will want to go through these matters very carefully because they are not altogether easy, even for the lawyers, to understand Many of the members of the Committee are not lawyers, so I hope you will be merciful to them in your explanations! I think the first thing would be to ask you if there are any general points which you would like to make about the Bill as a whole?

  Professor Merkin: I think the only general point is that it is actually dealing with two quite different situations and they are intermingled in the Bill, and I think that is possibly why it is not as clear as it might be. One is the situation where somebody is suing an insolvent defendant and you know right at the start that that person is in insolvency and has no money and the insurer is the only source of funding. The second situation is where the defendant is not insolvent and may be insolvent if he cannot meet the judgment or may not be, and the Bill operates in quite a different fashion in that respect because you are then using the Bill as a method of enforcing a judgment against the defendant who was not insolvent at the time, but he may become insolvent as a result of the judgment. I think they need to be kept quite separate, but there is at least one point in the Bill dealing with information where the two issues are not really separated.

  Q35  Chairman: I think that, in some respects, that anticipates the first very general question which I was going to ask just in order to get the ball rolling. Obviously, there are points which are going to arise, and I am amazed at the number of decisions which there have already been on the old Act. I had no idea that it had been so fiercely litigated over the years and certainly I was not aware of most of those decisions. Apart from what you have just mentioned, are there any major defects in the Bill, as you now see it?

  Professor Merkin: I think there are three or four areas that may need looking at. One is the one I just mentioned now which is that, if you are suing somebody who, you are pretty sure, is not going to be able to meet the judgment, it would be nice to know upfront whether it is worth bothering, and there is no mechanism under the Bill for obtaining information in advance of that. It is contrary to the `cards on the table' approach of the CPRs, I think, and certainly on the other side, if the claimant is funded by `after the event' insurance, he has to disclose that under recent decisions, but the defendant does not under the Bill, so I think the balance needs to be redressed in that regard.

  Q36  Chairman: That is the point which you come to, if I am understanding it right, under paragraph 13.4 of your first paper.

  Professor Merkin: Yes, that is right.

  Q37  Chairman: And you deal with at the top of page 13. Is that right? Am I following you?

  Professor Merkin: Yes.

  Q38  Chairman: That is where you say, "Perhaps para 1(1)(b) should be amended to read that there is a right to seek information where TP reasonably believes that the insured will not be able to satisfy any judgment".

  Professor Merkin: That is right.

  Q39  Chairman: Well, that is an important point and we obviously would have to consider whether we should table an amendment to the Bill to deal with that point.

  Professor Merkin: Yes.