Professor Rob Merkin

26 JANUARY 2010

  Q100  Lord Hunt of Wirral: My Lord Chairman, would you agree that, although `cards on the table' is very much the policy which is being pursued once litigation has commenced, where litigation has not yet commenced and where people are considering the risk involved, and of course it is not just the insurers we are talking about, it is the defendants, including the Government through local authorities, MoD, et cetera, am I not right in recalling, because I seem to recollect a court case about this, that there is always a wish on the part of the claimant or the claimant's solicitors to know information and a line has to be drawn somewhere? Although the immediate circumstances in which the change is made or the amendment is put forward may appear to justify it, I think the reason why it does cause controversy is that it may open the doors to a whole series of other areas of information which I think the rules in the past have always been designed to protect, and that is why you have to go to court, for instance, in medical negligence cases to make an application for papers to be disclosed or nursing records, et cetera. Am I not right in thinking that this whole area is like opening Pandora's box because you are never quite sure what information is going to be requested and, if so, by whom and, therefore, we must protect the rights of all the parties involved in accordance with the established procedure, or am I misrecalling the history of this? You, as a professor, will know better than me.

  Professor Merkin: I think you are certainly right, that there is a risk that people could make requests for information which is of no concern to them and which simply imposes a burden upon the defendant. I accept that. However, I think that, if a person has a genuine claim against a defendant and wants to know whether that claim is worth pursuing, I am not sure that that is the thin end of any wedge, in particular.

  Q101  Lord Hunt of Wirral: We had a lengthy debate yesterday on an amendment which was inserting the word "genuine" in the Equality Bill. How do you define what is genuine or not? It is huge and it is another area which we spent an hour yesterday debating, although there are other issues as well.

  Professor Merkin: There is another way of dealing with this which may be not to amend the Bill, but to amend the CPRs because 31.14, which I think is the relevant provision, gives the court a discretion to order the disclosure of information which clarifies it, and you could add to that that there may be insurance information which may be part of that and then the court decides what is to be admitted and what is not.

  Q102  Lord Bach: If you were to amend the Bill, it is possible that that change itself could open a floodgate, could it not, of uninformed enquiries and costs could increase quite hugely for the insurers. You were asked who would not like it and you replied that it would be the insurers, but they would not like it one little bit, would they?

  Professor Merkin: No, but I think that, if you went down the road of amending the CPRs, and there are proceedings in force anyway and, therefore, there are genuine interests, what you need to do is to cut out the vexatious litigant. I am not quite sure, but people actually have a hobby at the moment of claiming on insurance policies for potential defendants, but, if there were not a risk of that, then obviously there would be a problem. Maybe the way to do it is to amend the CPRs so that that particular issue could be dealt with by the Rules Committee. There is, after all, a conflict of precedent authority on this.

Lord Sheikh: Certainly I think Lord Bach was saying last week that we intend to pass this as soon as possible before the General Election.

Lord Goodhart: We very much hope so.

Lord Sheikh: Of course it depends on when the General Election is going to be. The point is that, if we start amending this, we are going to open the floodgates, and I think I would certainly reinforce the point that Lord Hunt made. I think the suggestion would be, if possible, to keep it as it is and amend, as the Professor says in his second recommendation. Otherwise, I think we are going to go on talking, talking and talking, and we have been talking since 1998.

  Q103  Baroness Whitaker: But, my Lord Chairman, was it not the suggestion that the CPRs be amended by a clause in this Bill?

  Professor Merkin: No. You can deal with this in one of two ways. You can deal with it either in the Bill or by the rules of court which empower the court to extend what information they can insist upon being disclosed.

  Q104  Baroness Whitaker: Without primary legislation?

  Professor Merkin: Yes.

  Q105  Chairman: Could we then perhaps leave paragraph 14 on one side until we come to the supplementary paper? So just finally on this paper look at paragraph 15, which supports `first past the post'. Are there any questions on that? Well, we will leave that then and turn to your supplementary report. How is it best that we should deal with it because it considers first Professor Briggs' evidence, which we have read just as we have read your comments on it, and then it deals also with the evidence of Maggie Hemsworth. We are very grateful to you, Professor, for having taken all this trouble. How would it be best to deal with it, or how would the Committee like to deal with Professor Merkin's comments on Professor Briggs? Do we want to deal with the comments one by one, as we have been doing up to now, or can we take them very broadly? Professor Briggs was concerned specifically about the private international law problem which arise, but what is your main point which you want to make in relation to Professor Briggs?

  Professor Merkin: I think I have two points. One is that these issues very rarely arise and it would not be sensible to lose the whole Bill over a very small percentage of cases. The other is that I think the Bill actually deals with them. Issues of choice of law and jurisdiction are complex, but are largely irrelevant, I think, to this Bill. The issue is whether there is an English insolvency procedure, and clause 4 deals with the various forms of insolvency and they are all English procedures, so, if there is a significant link with England in that sense, it should not matter what the jurisdiction issues are and what the choice of law issues are in relation to the policy.

  Q106  Chairman: In general, is there anything which we could put into the Bill which would help to resolve Professor Briggs' problems?

  Professor Merkin: I do not think that any of Professor Briggs' issues actually cause a problem in practice.

  Q107  Chairman: Then there may be problems, which we cannot foresee, which would have to be dealt with by the courts?

  Professor Merkin: Yes, I think that is probably right. I do not see why it matters what the law applicable to the insurance contract is. I do not see why it matters where the case is heard. The issue is about getting the victim's hands on the insurance money and, if there is an English insolvency procedure, that is what the Bill allows, so I do not think that these issues are actually significant.

  Q108  Chairman: Has anybody any questions to ask Professor Merkin about that? No, so turning to Maggie Hemsworth, what is the main point you would like to make in relation to her evidence?

  Professor Merkin: Again, I think the main point I would like to make in relation to Maggie, who is an old friend of mine, is that she raises issues which, for the most part, are dealt with and resolved by the Law Commission in its report. She wishes to reopen the issue of `first past the post', for example, which has been resolved. I think the object of this Bill is to implement what the Law Commission wish to do and I think it would be wrong at this stage to revisit these issues because there are two views that you can take on these issues and the Law Commission has taken a view on each of them.

Chairman: Are there any questions on what Maggie Hemsworth has said and what you have heard from Professor Merkin?

Lord Borrie: I would like to agree with Professor Merkin, otherwise we go right back to the beginning!

  Q109  Chairman: I think that is the general view of the Committee. Well, is there anything more you would like to add in a very general way? I think you have made your views extremely clear. As I said at the start, you are clearly an expert in this branch of the law and we are very, very grateful for your evidence and for all the trouble that you have taken.

  Professor Merkin: All I would say is that I became involved with this project way back in the 1990s when the Law Commission was looking at privity in general and produced a report on privity which said, "There are various exceptions to privity, including the 1930 Act which works very well", and that produced a letter from me, as in those days it was letters rather than emails, saying, "Oh no, it doesn't" and I gave them 20 reasons why it did not work. That, plus other comments, led to the Law Commission looking at the 1930 Act, so I am delighted to see this, although I am sad that it has had to wait for so long. However, the one thing I would say is that between 2002 and today the courts have done a lot of the job of the Law Commission anyway in cases like OT and others, so the issue is not actually as pressing as it was, but I think this Bill is very useful and I do not see any reason why anyone could object to it.

  Q110  Chairman: Well, thank you for expressing those views. I hope that, if this Bill does go through, it will not bring to an end your interest in this subject.

  Professor Merkin: I will send you a copy of the book! Perhaps I should have declared that as a personal interest!