 Welcome to the Justice Committee's 27th meeting of 2017. There are no apologies. Agenda item 1 is civil litigation, expenses and group proceedings, Scotland Bill and it's our second evidence session on this bill. I refer members to paper 1, which is a note by the Clarkson paper 2, which is a spice paper. It's my pleasure to welcome to the committee Ronnie Conway, who is the coordinator of the Association of Personal Injury Lawyers, Brian Castle, Regional Coordinator Scotland of Motor Accident Solicitor Society and Patrick Maguire, partner with Thomson's Solicitor. I thank all the witnesses for the written submissions. That's extremely helpful for the committee. We'll move straight to questions starting with John Finnie. Good morning, panel, and thank you for your submissions. I wonder if you're able to outline whether damage-based agreements have any advantages over no-fee arrangements, please. I'm happy to begin answering that question. I think, Mr Finnie, the reality is that the terms particularly in this bill are entirely interchangeable. What the bill does is legalise, because until now professional rules and other lies have prevented solicitors entering into the type of arrangement whereby, in the event of success, a specific percentage of damages could be taken as a fee at the end of that successful case. Until now, there had been a very specific form of speculative fee agreement that a solicitor could enter. That's centred around being able to charge a percentage increase in damages. That bill had simply sought to make things simpler for practitioners, but most importantly, for victims of accident injury and disease, in order that they can have a very clear picture in their mind when they decide if they are going to take a claim forward and which solicitor they choose to engage in that process. I think that it's about simplicity, clarity and, for that, I think that it is a good and welcome addition to the law. Yes, I'd maybe pick up on that as well. At the moment where a client engages with a solicitor on a written speculative fee agreement, there's no clear understanding on the client's part how much they're going to be charged at the end of the day, because a solicitor under the rules as they stand at the moment can charge up to 100 per cent of judicial expenses at the recover at the moment. Even a solicitor at the outset of a case can't tell a client what the judicial expenses are likely to be. In terms of certainty, a client can readily understand under a damages-based agreement that there is a percentage. As Paddy said, I think that it just makes things simpler so far as they go. The proposals here in terms of Taylor are to cap those success fees or to cap a DBA so that they're not going to take an inordinate amount of damages from clients. I suppose that clients will like the idea that if a solicitor is fighting their corner and can charge a fee based on the actual recovery, they've got an interest in fighting for the best deal for the client there. Mr Finlay, I agree with what has been said by my colleagues up until now. Taylor looked at the fact that there are some of the larger firms of solicitors who have a parallel type claims management company and that clients were already offered a damages-based agreement. In the main, Taylor found that the clients were perfectly happy with it. The existing rules on speculative fees are by Zantine, incapable of being understood, seems to me, by members of the public. I have to say that I don't have any factual basis for saying that there has been abuse, but at present they are open to abuse. It seems to me that this bill is a substantial improvement on the current position. In a damages-based agreement where to be introduced, where would that leave the no-win, no-fee arrangement? A damages-based agreement, Mr Finlay, is just a form of no-win, no-fee agreement. It's one that simply has clarity so that the basic building blocks are the same, that the solicitor will act and will only charge a fee in the event of success. It's simply what happens in the event of success that under this bill the success fee will be at a fixed and clear from the outset percentage. Whereas at the moment, as colleagues have described, there's a very strange and I agree with Mr Conwy's view by Zantine approach in terms of fees uplift. It's just a matter of clarifying. No-win, no-fee is simply a generic term in damages-based agreements as a form of that. The bill actually still allows, as I think Hamish Goodall explained last week, solicitors to engage in the old-fashioned speculative fee agreements if they so choose. I would be surprised if any do, but the bill allows that still to happen. Is there confusion about the terminology or is it perhaps the lack of clarity on my part here? To the layperson, it doesn't necessarily seem straightforward. The terminology and the bill? I think members of the public view, for them, the issue is no-win, no-fee. I feel like that's the common parlance that they expect to be able to go to a solicitor to engage that solicitor and to be only charged a fee in the event of success. That is what currently happens, but the rules that govern what a solicitor can charge is not clear in the main. There is an unlevel playing field because claims companies and certain organisations of solicitors who are allied to claims companies can engage in the type of arrangement that is being envisaged for all under the bill, the damage-based agreement that you are talking about, Mr Finlay, that at the moment is only a very limited number of organisations can say in the event of success that the fee will be x per cent, most solicitors cannot do that. All the bill does is allow everyone to operate in the same way and a way that is entirely clear to the public. To take your point, that is exactly what the public expects and needs in any event. They want to know that there will be no charge in the event of the case being unsuccessful and they want to know, I think, what that charge will clearly be in the event of success. The bill sweeps away the confusion and the market will balance out and determine that. Mr Finlay, I wonder if part of the answer relates to the regulations that are still to be made and are subject to affirmative procedure. Taylor looked closely. I should declare an interest that I was part of the Taylor reference group, although I did not write a single word. Mr Share Principal Taylor is the only begetter of the Taylor review. However, he looked that there are provisions within his recommendations about just precisely what Mr Maguire said about clarity for members of the public, so that there will be a fixed format of agreement that members of the public will have access to. I suspect that, within a very short period of time, the kind of speculative fee agreements that we have been speaking of up until now will wither on the vine. The points that John Finlay was raising and that you have clarified, Mr Maguire, is that no win, no fee can come in various forms. It is a generic term and the bill sets out precisely a formula for this. Had we still to hear from Mr, did I interrupt you, Mr Castle? No, no, no. A supplementary. Excuse my voice. Mr Castle, you spoke with approbation about the solicitor having an interest in the outcome financially. Is that really a good thing in that, historically, the solicitor has been in representing the client, of course, but independent from the interests of their client and able to provide independent advice and had duties to the court itself. Now, I accept that the train may well have left the station on this subject, but I just wonder if the solicitors having a financial interest of the kind you describe, which you appeared to speak of approvingly, is actually a good thing under any circumstance. Thank you, Mr Stevenson. I think I'm talking on behalf of the client and when we were talking in the context of looking at damages-based agreements and the potential benefit to a client, then I think the client does or would see that as a good thing if the solicitor was fighting the corner and had an interest to do well and secure full and proper compensation for the client. Traditionally, you're right, and the laws that it stands prevent solicitors at the moment from directly entering into a contingency fee agreement with the client. The rule was there because of the concerns traditionally. Now, Sheriff Principal Taylor looked at that and took account of his review about those concerns, but I think on balance had recommended that actually for the sake of clarity and certainty at the outset of an agreement and a client entering into an agreement with a solicitor, they knew at the outset what the terms of that agreement were going to be in terms of a charging regime. Would you therefore, and there may be others above you, see it as important that the professional standards regime, not a matter for this Parliament, should be updated to make very clear where the boundaries and respective responsibilities are in this new regime of Parliament passes this legislation? Absolutely, and that has to be important and remains important that, yes, aside, a solicitor will have duties to the court, and, aside from looking at personal interest, that has to be reflected in the rules going forward, absolutely. Tiffany? Just two very good questions on my panel. Are any of you aware, at present, of examples where clients have been required to pay two separate fees from an award of damages, one to a claims management company and one to their solicitor? I am not aware of any. Likewise, I wouldn't. Not to my personal knowledge. Okay, thank you. Finally, then, in these particular provisions, there's much use phrase access to justice, will they enhance access to justice? For my part, I have absolutely no doubt that the provisions of this bill collectively will enhance access to justice, and that includes the provisions that we may come on to in group litigation, but particularly in part two of the bill and qualified one-way cost-shifting. That entire purpose in terms of the principle Taylor's recommendations was to enhance access to justice. I think that we've all expressed some concerns about the drafting and how that could be improved, but assuming that the principle Taylor's recommendations are reflected fully in the bill, there's no doubt whatsoever in my mind that this will improve access to justice, and most importantly, or as of equal importance, it will do that, which principle Taylor also said was his prime focus, and as I see the mischief of this bill, it's to redress that imbalance in the relationship, the asymmetrical relationship that Prince Sheriff principle Taylor spoke about, as currently between pursuers of personal injury claims and the extremely large, extremely powerful, extremely wealthy insurers who count their profits in billions of pounds. Can I say that April strongly supports the aims of this bill and has been waiting on this kind of legislation since the Taylor report in 2013? Can I say that the most widely cited article in World Jurisprudence is one by Mark Galantair in 1974, who wrote why the haves come out ahead in litigation. His critical point is that litigants can be divided into two categories. On the one side you've got the one-shotter and on the other side you've got the repeat player. If my car is re-rended by someone else, I am a one-shotter. If I have to get involved in litigation or dispute with a person who has banged into me, I'm not dealing with a one-shotter, I'm dealing with a repeat player. It doesn't just cover personal injury type cases, it covers landlord and tenants, private utilities, et cetera, against individuals. The repeat players have got distinct advantages. They are resource rich. They have easy, well-established conduits to blue-chip lawyers. They can decide what cases to settle. They can decide what cases to take to the Supreme Court. We know from this place that in the Asbestos Wars they are perfectly capable of doing that. Critically, and this is the point about this legislation, they have no real financial or emotional involvement in the dispute. Can I just say that you will be covering this in more depth and you've taken quite a long time to explain that. Of course it is a complex issue and the one-shotters can come in various forms and that's what we're teasing out and hope to in this evidence session. Before we leave this session, can I ask perhaps a little bit more about the possibility of two separate success fees from an award of damages. You all said that you aren't aware of it, but it wouldn't be impossible for it to happen under the terms of the bill. Would that be correct? That's where a claims management company might charge a fee and then if they referred it to a solicitor, they may also charge a fee. It's not something I've considered in terms of the specific language of the bill and apologies for that. I think given what has been said and as we know the fact that there requires to be a secondary legislation under part 1 that that's something that may need to be addressed then, but to answer your specific question it's not something I've considered. Any other views from Mr Kathleen? I think that you're correct. I think that there would be a possibility. Of course, April's hope is that claims management companies will be on the vine. There's no real need for them. They are a dating agency that nobody needs and once this clarity is introduced into the system people should go straight to the solicitor who will charge a single fee. Is that something that needs to be looked at in the bill? I think that she's mirroring my colleagues' views. I think that's something for secondary legislation. If there is a concern that that's a possibility then I think that that can be addressed in the secondary legislation relating to fee charging. Okay, we'll move on. Thank you, convener. Good morning. Yes, I wonder if... I wonder if I could just ask following on from my colleague about his line of questioning but more to do with the pursuers side of things. Pursuers who suffered significant injury I wonder what your thoughts are on how they could be to manage their future care needs if some of their damages award goes to paying solicitor's success fees? You're looking, I think, at section 6 of the proposed bill and again, Taylor adopted an evidence-based approach to this. The position is that in so far as cases... May I just refer to section 6 if you don't mind? Of course. If you're talking about care costs you're really talking about cases which are probably worth over £2 million or so. The expectation, I would have to say, is that once the new damages act comes into play the expectation would be that in cases against institutions such as the NHS or the Motor Insurance Bureau or indeed regulated insurance companies the expectation would be that periodical allowances would be put in place. In that event there is no... Taylor excluded the possibility of any success fee being calculated on the future amount. I would have to say that the norm will be in cases over £1 million as in section 6 that there will be no calculation of a future success fee. Subsection 6.6 says that the legislation has got to envisage two possibilities. First of all, there is an adjudication so the court resolves matters. Where it's a choice between a lump sum payment and periodical allowance then the judge is going to have to be satisfied that the future element will be paid as a lump sum. In cases where damages are obtained by settlement an independent actuary will have to be instructed by the pursuers lawyer and he will have to certify in the actuary's view that the future element will be paid as a lump sum rather than in periodical payments. The expectation once the periodical payment legislation comes in is that there will be periodical payments rather than lump sum. If all that falls by the wayside and we end up with a lump sum Taylor's suggestion is that the amount of success fee is a once and for all 2.5 per cent over £500,000. The example that he uses in the report is where there is a future loss element and the amount that is recovered is £1 million. It's 20 per cent for the first £100,000 and 10 per cent for the next £400,000. All the amount after that is at 2.5 per cent. From a practitioner's perspective that additional amount is involved and the most disputatious element of the litigation. There are constant disputes about life expectancy in particular about amounts of care and levels of care. I agree with Taylor that a single lump sum, a single success fee of 2.5 per cent over £500,000 supplies sufficient incentive to keep going without overrewarding the lawyers. Can I just ask you how you feel about the argument that Scotland should follow England and Wales in protecting the future loss element of a claim from forming part of the success-fee calculation? Maybe I can come in on that. Taylor looked at this in some detail. He looked at the possibility of looking or restricting a success fee to pass damages only. I think that he thought against that and thought that the better position would be to allow solicitors to charge a limited success fee on future damages. I think that the rationale largely for that was, one, as my colleague has said, that when you're looking at a future damages claim and continued care costs, that's really where the bulk of the work goes in in these big value cases. They are hotly disputed and the vast majority of a solicitor's time looking at these types of cases would be focused on calculating and putting forward the future element. He did not want to discourage solicitors not doing that work or not doing that work properly. The secondary point that Taylor had recognised was that anecdotally there was a suggestion that if you were going to permit solicitors to charge a fee only on past losses, there was potentially an incentive to drag a case out for as long as possible so that more of the compensation would be treated then as past losses. That's clearly not in the best interests of the client in doing that. You want to achieve and you want the framework, the bill and the framework of legislation to encourage to get to full and appropriate compensation but as quickly as possible. If I could add there, the overall purpose here is to achieve a fair balance with appropriate safeguards for the victim. Sheriff Taylor spent a great deal of time looking at that and the recommendations as were contained in his report and as are now reflected in the bill. Subject, of course, to section 4 that requires that secondary legislation to set the parameters of the sliding scale of fees that both colleagues have spoken about. I think that it does strike that balance appropriately whereby slisters will be paid fairly for the extremely hard work that is put into these extremely trying and difficult high-value cases. In a way that the victim is properly protected, I think that the bill just strikes that balance correctly. That's the thing. There is also a difference from England and Wales that there are 25 per cent of damages and Sheriff Taylor's recommendations are far less. Everything that happens in England and Wales does not necessarily mean that it should find its way up here. I think that the bill strikes the right balance. I take it from what everyone has been saying that you would dispute the fact that the success fee calculation rewards the solicitor to an extent not justified by the amount of work carried out, which is what my colleague was saying. Yes, I would dispute that. I think that the balance is correct. You think that the balance is correct. Can I ask you then, too, about the additional fee available in the current legal expenses system and whether you feel that it sufficiently rewards solicitors when dealing with exceptionally complex cases? The additional fee regime... The recommendation on Taylor is that it is retained. I do have to say from practical experience that it depends on the particular golf course that you are playing on as to how the judge deals with applications for additional fees. Perhaps give us an idea of the level of what that might be because I haven't a clue what might that be, the additional fee? The additional fee relates to judicial expenses only. There is a separate number of heads, the kind of value... First of all, I am speaking from memory here, Ms Mackay, so value to the client, complexity, novelty of issues determined, number of documents, et cetera. If you want an additional fee, you've got to say that it goes above and beyond the normal run-of-the-mill type litigation. I think that Taylor and Balans came to the conclusion that it's the best system that we have. As I say, it does appear to me that there is not a great deal of consistency throughout Scotland applied to the application of additional fees, but I'm not really sure how that can be addressed. It does strike me looking at the recommendations and so far as the auditors are concerned, I notice that the auditor of the Court of Session is to be obliged under the new regime to issue guidance as to how matters of expenses are to be dealt with. It may be that the additional fee regime might be something that would benefit from guidance from the auditor of the Court of Session. It sounds as if it might. Is that not to odds with a damage-based system that has an additional fee? I don't think that it's necessarily at odds with the system, because, as Mr Cohen said, the simple fact is that Sheriff Principal Taylor and his group looked at this and considered that, in detail, they are the ones with great knowledge of how the system practically currently works. The real issue that we have to consider is probably a case of the kind of horse in the car, because Sheriff Principal Taylor's overall view was that there was a need to introduce damage-based agreements, as he recommended, in a way that will improve access to justice, will rebalance the symmetrical relationship. That was his primary objective and his primary purpose for achieving that is the form of damage-based agreements that the bill contains. The current regime of additional fees is, as Mr Cohen pointed out, quite opaque, quite Byzantine and very difficult to judge. To suggest that that is the solution to future damages just kind of misses the point. The reality is that when the damage-based agreements come in, the proper way of addressing the point that you are raising, Ms Mackay, is for the Civil Justice Council at that point to look at the big picture on the side. Does that mean that additional fees now need to be changed? That is one for the Civil Justice Council down the line, not for us here to second-guess how it is all going to work and maybe put something into primary or secondary legislation that will frustrate the entire purpose of Sheriff Principal Taylor's recommendations. Just one further point on additional fee. Additional fee is entirely discretionary on the basis of the trial judge or the court judge. There is no guarantee that you would have to persuade the court that your case was in some way exceptional or outwith the norm to persuade the judge to award an additional fee. At the outset of a case, if you had a view that a case was worth £200,000 or £2 million, there is no guarantee at all that the size of the damages or the settlement would result in a guaranteed additional fee. Many cases, applications are made for additional fees but are refused by the trial judge or the court on the basis that there was nothing outwith the norm. How often is it used? How often is it applied for? I am not sure that we would have the numbers. You have to persuade the court that in some way you have an exceptional case that falls outwith the norm. There are certain guidelines or heads that you have to make submissions to the trial judge on the undue complexity or the extensive efforts that you have made to settle a case, for example. The court would only award an additional fee where they thought that the case was in some way exceptional. It is rarely used to what you are saying at the moment. Yes, it would be the exception rather than the norm. I can assist simply from a practitioner perspective. It is certainly very rarely used in the share of court. I suspect that it is a bit more frequent in the court of session in cases 10 where there is a level of complexity. In the share of court, I think that I have made an application in the past 10 years on about four or five occasions. That is fine. Liam Kerr, do you want to follow up? Thank you, convener. Good morning. First of all, if I might go back to the basic premise of the question, if I may, of the access to justice piece. Mr Conway, you said in your submission that cases are not being brought or there is routine under-settlement. Mr Castle talked about people who were prevented or dissuaded because of cost implications. I think that this is a very important point. I am just wondering, are you aware of actual research that shows the number of claims that are not being made or progressed and broken down by what those claims are that are not being brought forward and why they are not being brought forward? There have been studies and I cannot put my hands on the references at the moment, but I would be happy to submit those following the session. There have been a number of studies that say that, as a whole, if you take 100 per cent of people who would have a valid claim, statistically, the majority of those have not pursued a damages claim or have decided not to pursue a damages claim. There are various rationales or options as to why that would be, and the studies look at that to degree, but it is difficult to give you first-hand evidence because, by the very nature, these clients are not coming to me as a practitioner to seek advice. There are a number of studies that say that, even now in Scotland and the UK, there are the majority of people who, on the face of it, have a valid claim and choose not to advance a claim for damages. One of those must be a concern. In advancing a claim, they are putting themselves at a significant risk of adverse expenses if they do not prove their case. I am happy to do that. I am concerned that the fundamental premise behind it that costs of preventing access to justice may be groundless. It may not, but we need some data because we understand that there has been a significant increase in PI claims in the past six years in Scotland, which would tend to suggest that it is not to do with costs. Perhaps I will move on. Is there a concern? It is impossible to have empirical data, Mr Kerr, as you can imagine. The study that Mr Castle was referring to is by a well-known legal researcher, Hazel Genn, Pathways to Justice in Scotland. It is of some antiquity. It was in the early 2000s that it was where she interviewed potential litigants. In so far as this particular legislation is concerned, it is important to remember that it deals with litigated cases. We know that there has been an increase in claims registered in Scotland in claims registered with the compensation recovery unit, but it is from a very low base. The figures that we have looked at and which can be made available to you show that in England there were 926 claims registered last year, and that is 1,652 claims for every 100,000 persons in the population. In Scotland, the figure was 973 for every 100,000. We are still considerably lower than England. The concern always is that compensation culture is shorthand for some kind of cheats charter or fraud, etc. There are no figures anywhere to decide this argument one way or another, it seems to me. In so far as Qox is concerned, what Qox addresses? I should have explained the CRU statistics relate to all claims registered. Mr Conway, forgive me for interrupting. I know that we are coming on to Qox later, so perhaps we can pick that up in a second if you wouldn't mind. I notice, Mr Kerr, that your question was premised on, and the suggestion is that the bill ought to be premised on a need to increase the number of claims and that is the basis upon which it will be judged if there is a need or not, if there is an increase in claims, then actually there is no problem with access to justice. Maybe there should be a deeper purpose for this bill, and a greater purpose for this bill. Improving access to justice full stop is a good thing. That is what I would say is at the heart of this bill, not looking at raw case numbers and taking a view. It is what we say as society we ought to be doing. Improving access to justice is most certainly a good thing, and that is, of course, at the heart of this bill. More than that, we now know from the very recent decision of the Supreme Court in relation to employment tribunal fees, the unison case. It is not only a good thing that society should encourage, it is an absolute legal obligation on this Parliament as much as any other Parliament to improve access to justice. That is what this bill does, and it does it very well indeed. The heart of the bill is cost and money. It is very much addressing that issue, and that is the point that Liam Kerr was making. I just want to pick up a point that Rona Mackay was talking about. Is there a danger when you look at the award end? Is there a danger that the courts might inflate future loss awards to ensure that the funds that have been given for care in the example given are not going to be eroded by fees or costs? Is there a possibility of award inflation, do you think? That question came up last week, and I think that eventually we got to the answer. I will give an absolute black and white, no-hose, barred answer. No, I do not think that there is any prospect of the judiciary somehow deciding to work around the year-in-year precedent that sets the parameters of damages. There is very clear basis on which judges look at cases and make awards. They will continue to follow those precedents. The prospects of them taking it upon themselves in some sort of nobly oblige fashion to increase damage is negligible. I knew Mr McGuire helped me because it is a very long time of practice in England, so I may be wrong on this. Did the judicial college in England and Wales increase, when England and Wales did what they did, did the judicial college not increase awards by 10 per cent? Yes, I can help you with that. In England, historically, when a claimant was pursuing a damages claim and they took out after the event insurance, not only the insurance premium, but also the uplift in terms of the fee agreement or the speculative element of the fee was recoverable from the insurers on success. As part of the regime in England, where they decided they were not comfortable any longer with having the insurers pay for a success fee and for an insurance premium, the prid pro quo was there was an instruction to judges and the judiciary to increase damages by 10 per cent to balance that out. In Scotland, we have never been able to recover an insurance premium if a client has taken out after the event insurance. As Mr McGuire said, there are well-founded principles in terms of how to calculate a damages claim that are used day in, day out by the bench in Scotland. They are not going to depart from that. Indeed, if they did, I suspect that they would be readily appealed. Like Mr McGuire, I do not see any prospect. I think that that is a smokescreen. I just do not see any prospect at all, which has been suggested in some of the submissions that somehow damages awards will be increased. That just is not going to happen. The tender hearted judge or sheriff is not a creature that I recognise, Mr Kerr. Of course, they have taken a judicial oath to uphold the law and to follow practice and precedent. They will not be adding a little extra to the damages. To return to the question that I did not feel you had answered at all, Mr Conaway, it was the first one on how pursuers have suffered significant injury. Can properly manage their future care needs if some of their future damages go to pay solicitors or anyone else? Perhaps some of the other ones could do it. You mentioned periodic payments being omitted from the agreement, but inevitably somebody will fall through the net. How do they meet their future costs if the amount that has been attributed to them for them to look after themselves is the sufficient amount deemed appropriate if some of that has been given away or has to be paid over to solicitors? Perhaps some of the other panels if they could come in first, because you have already had a shot at it. Mr McGuire or Mr Cassell? I have made my view in that clear that it comes down to the balance but with appropriate safeguards and that balance has been properly struck. I have certain views politically in a kind of industrial sense on where this argument is coming from. I have read that argument made by the insurance lobby that I am happy to share now because it ties into another recent development sound off the border that no doubt will come before this committee soon in relation to the discount rate, as it is called. I can deal with the discount rate now or if you would rather move on, it is up to you. The bottom line is that that particular line has been promulgated by the insurance industry as part of their attack on this bill and I simply do not accept that it is a legitimate argument. I think that we are talking about not from the insurance perspective, but from the client's perspective. We have had a severe personal injury and we have been given a certain amount of... I understand that. I am happy to explain that argument about the concern for the victim that comes from the insurance lobby. That is the same lobby that recently decided that they were going to stand up against the decision of the UK Government to increase the discount rate. The discount rate applies to the most serious levels of claims. Those are people who have had life-altering injuries and who receive, as in this case, damages that have to be seen through the rest of their life. The discount rate recognises that, if somebody is getting money now, they will be expected to invest it and that that will give some form of investment return over the years. It says that to be fair to the insurance industry that some discount should be given hence the term discount rate for the money being paid now. What the discount rate until now has overlooked is the incredibly low levels of interest at an inflation that has been in the UK. The Lord Chancellor looked at that and said that his recommendations had to be changed, that the discount had to be reduced, to address exactly the point that you are making, to ensure that people get as much of their damages as they can. The insurance industry went to war and they decided that that was completely inappropriate that they should not be paying more money because by reducing the discount rate, you increased their money and insurers pay. They went to war and the UK Government backed off. That shows what is really behind the types of apparent concern for victims that are coming from the insurance lobby. Can I stop you there? My question is from somebody who is going to court. They are not familiar with things. They have a huge injury. I am not talking about the insurance lobby. I am talking about that individual in court who has awarded so much money to look after themselves for so many years to come and not getting the full amount. That is what they will understand when they are in court. Can you please leave the insurance lobby out of it and answer that specifically? I answered that question before and I will answer it again. It comes down to what I think is a fair balance between the solicitor being paid fairly for the extremely pressured work involved in the most high-value cases, but with safeguards to ensure that they are victim. That is what we are talking about, the victims of the most serious accidents. I do not have to pay too much. The current bill, as it is currently drafted, strikes that fair balance with appropriate safeguards. I gave that answer before. Any other contributions from Mr Castle? If you do not mind moving on after that, Mr Conway. I have not much more to add. I think that Taylor has looked at this. It is a concern that the committee is right to consider. Taylor has considered this as well and had a look in contrast to the position in England and thought that looking in the round and making a balanced decision is to the best interests of the client and the overall purpose in securing proper access to justice. Taylor has come down the side of that he will permit a charge on future damages but he reins that right back. I think that that is the position once and for all. Okay. I could just ask one very quick because I know that Liam Watt has come in for supplementary. How often do you, as the panel, advise the client not to proceed with the case because it is un-economical? How often does that happen? Well, as a trade union solicitor, Thomson is a pretty Dave Mawksham, cannot be here, but as a trade union solicitor is something that comes up quite regularly where we have to advise our trade union institutional clients whether or not they are able to support a case and to do that we have to look at the prospects of success and very, very hard decisions have to be made very regularly. That shows, going back to what Sheriff Principal Taylor said about the asymmetrical relationship, that it applies not only to individual one-shotters but there is just an imbalance in power and financial resources as between other organisations that support victims including trade unions. It is a regular part of what we do. Is perhaps some empirical evidence to be had from that? Indeed. Mr Castle? Yes, I think that that will happen on occasion. I am actually just taking back to one of Mr Kerr's questions and was asking about evidence-based for why clients would not pursue a claim and whether the introduction of coax would help. I think that in terms of the mass membership, in terms of the slisters in Scotland to our members of mass, they will certainly have numerous examples between them where a client has started on the process in terms of claiming damages and would have an offer which the solicitor was telling them was inadequate and inappropriately low, but depending on their funding arrangements a client would take the decision. I am just not going to take the risk. I hear what you are saying as a solicitor. I am entitled to a greater award of compensation, but because of the funding regime I have, I am simply not prepared to advance that with the risk of an adverse cost and a significant adverse cost award in the end. You might actually advise them not to in some sense. Yes, in some cases you have to balance the risk. If it is a black and white case, there is absolute certainty that that is fine, but unfortunately, particularly when you are looking at litigation, there is very seldom a certain or a black and white case. I am briefly, Mr Conway, it will have to be briefly. I agree, there is no problem about the stonewall certainties. We will all take them on, we will advise the clients to take them on. I have two particular cases which resonate with me. I do not think that we have time to go into the detail of that, just a kind of idea of how often you would advise people not to proceed because it was uneconomical. In the last couple of years, I have advised two that one fatality is not to proceed, which was an arguable case, a 50 per cent, and I have abandoned a case on day one because it was clear that the costs, if the case lost, was going to overwhelm the pursuer. True occasions are only over a period of... That does not relate at all to the cases which do not get started. That is what I am looking at. All of us, in our daily round, for lots of different reasons, but probably about one out of four, one out of five do not get off the ground because prospects are not good enough. Thank you. Your supplementary, Liam McArthur, and your line of question, please. Good morning. Just following up the line of question that Liam Kerr advanced earlier on, you will have seen the evidence that we had with the bill team a couple of weeks ago, and the figures that I quoted there from DWP data suggesting between 2008 and 2011, the increase in P.I. claims south of the border was up 23 per cent over that period in Scotland, up 7 per cent. I think that Chef Principal Taylor alluded to a compensation culture south of the border that was not reflected north of the border since when between 2011 and 2016, we have seen an increase of 16 per cent in Scotland and 16 per cent in the UK. That has reduced dramatically to 4 per cent. I take your point, Mr McGuire, about the general principles of legislation. For those of us who are charged with the responsibility of scrutinising the legislation, we need to understand the basis for it, the case that is made for it, and we will have Chef Principal Taylor with us next month, and that will be helpful. It does appear to be the case that the picture has changed quite dramatically since the Taylor report was published. Getting an understanding of what those trends tell us about what is happening and the disincentives there are or the obstacles there are to access to justice is a reasonable line of argument for us to pursue. I welcome your comment. You are right. Looking at the CRU figures, that has got to be the best guess in terms of the numbers of personal injury claimants going forward. It is true to say that there has been a percentage increase in claims since Taylor did his review. It might be interesting to know what your understanding of the rationale for that and what has driven it. I think that there is an element of clients being more aware of their rights and willing to assert their rights even in that short period of time. You have to put those figures in context if you are saying that there is a 17 per cent rise or whatever. If you are putting them in context and certainly looking at them next to England and Wales, Mr Conway referred to figures earlier, but if you are looking at the most recent CRU figures, you are still looking at 1,650 people in every 100,000 making a claim in England, whereas the claims ratio in Scotland is still looking at under 1,970 per 100,000 people. The suggestion that there is now something progressing towards full access to justice is not necessarily borne out by those figures. We are still some way behind looking at our neighbours in England and Wales if you are looking at the ratio of claimants per 100,000 of the population. Referring back to my evidence earlier, as I said, there are some empirical studies that say that the majority of people who have a valid claim, for whatever reason, choose still not to assert their rights to do so. The main driver of this bill is to increase access to justice for valid claimants and to allow an increasing proportion of valid claimants to assert their rights and get the full and proper compensation to their entitle too. That is a good aim. As a society, we should be promulgating that. That is helpful. There are a couple of other questions, but they are more related to quarks. I will bring them up when we turn to that later. In relation to actuary advice, which the bill requires in certain instances, there seems to be some confusion among some of the stakeholders we heard from as to where the liability for paying for that advice came from. The Government bill team insisted that that would fall to the pursuer solicitor. I just wondered whether that was your understanding, and even if it is, do you think that the bill would benefit from further clarity around precisely where that liability lies? It certainly is my understanding that is what Taylor wanted, and I thought that it would be covered by 6.2. The agreement must provide that the recipient of remant legal services, including outlays in card and providing the services, is to be paid by the provider. Whether that could be spelled out and block capitals would be a matter for this committee, but certainly that is how people are expecting the legislation to turn out. You do not see that as a problem. The other issue that has been raised is the suggestion that the actuarial advice would be taken by the pursuer but absent his or her solicitor. It seems slightly strange, but I would welcome your guidance on whether or not this is a reasonable stance for the bill to take, and indeed what the rationale for it is. If you look at, again, going back to the Taylor report, what Taylor was concerned about was, and of course, a success will only be paid if a lump sum is agreed. What Taylor was concerned about was the written advice saying one thing and a nod and a wink to the client saying something different. That was why he was trying to build in the protection for the client that the actuarial advice should be completely independent of the instructing solicitor. You do not see a problem in enforcing this sort of arrangement. I think that needs to be clarified. Certainly, on behalf of Mass Scotland, a number of mass members were concerned about if the arrangement fell on the pursuer and the pursuers firm, that is another additional cost that comes into the equation. Presumably that is going to be a recoverable cost at the end of the day, because if this is an essential step in the process, then that ought to be treated as a recoverable cost and a success as other outlays would be. That is one concern. The other slight concern that I have to say that mass members had in Scotland, which may or may not be shared by my colleagues here, was the suggestion that the actuary was the final determinant in terms of which road you would go down. In the context of a court action, the framework here is that all parties get an opportunity to feed in their wishes and hopes. There would be an actuarial report and the judge would decide which was in the best interest and how the outcome was going to be. Of course, if you are settling a case before you get to court proceedings of a value, the suggestion or the framework at the moment says that an actuary takes a view and that is the end of the matter. Looking at an individual client in terms of wishes and circumstances, I would have thought that there has to be some mechanism there for clients' wishes to be taken into account. Now, absolutely, there has to be safeguards as well, because the suggestion will be if this is being driven by the solicitor, then its self-interest is driving that because they want to charge a success fee in terms of the future element of the damages of its being paid as a lump sum. My members, the mass membership, are just slightly worried that there may be for a whole number of reasons an individual client where the advice is given that they might be slightly better off in terms of taking a periodical payment rather than a one-off lump sum, but if a client themselves takes the view, no, no, I would prefer to do it this way, at least there has to be a mechanism where their interests are taken into account and there is some cognisance taken of those. Quite how we arrange that will have to be a matter for further consideration and presumably secondary legislation as well, but that was the view of certainly the mass membership. I don't think that there's any reason that that can't happen, Brian. What can't happen is that a success fee is chargeable on the future element if the client insists that he wants a lump sum. The protection, if you like, is trying to force clients away from lump sums and preventing solicitors from getting a success fee if the advice is otherwise. Mary. I just had some questions about the qualified one-way cost shifting because looking on the surface of it, I mean obviously this isn't my job day-to-day and you'll see a full variety of cases, but I think the one thing that really struck me about it is that I understand that Sheriff Principal Taylor put forward the justification that it was because of the David and Goliath scenario for the pursuer and the defenders, but it was really for those cases, I believe that he said that that is the vast majority of cases that you would see, but it's really about those other cases because to me it would strike me as being unfair that if I as an individual were taken to court by someone and it found in my favour and not in favour of the pursuer, why should I have to pay for their legal fees? It was just really to get your views on is that a realistic example or what examples can you give us to illustrate that scenario? I think that Sheriff Principal Taylor took the view that he did because it is the vast majority of cases and I think frankly more where it will be an insurer that is acting for the defender. The prospect of any of us or any of our colleagues in the entire profession bringing a personal injury claim against an ordinary person is virtually an impossible scenario. It was very unlikely because we have to be conscious of the fact that at the end of the day, if we are successful, our clients must be able to get the money that the court says they are entitled to. Of course you would do that in bringing a claim against an ordinary member of the public unless last week we spoke about a half billionaire and we might contemplate it in that circumstance but really in no other. I take the point but I think it is so unlikely that we will probably be in danger of the old adage of hard cases making bad luck and a bleeding into the process. I think that Sheriff Principal Taylor got it right. I would just be interested to hear if anybody else had any other examples there of those other cases that are not quite that David and Goliath scenario. I did read the billionaire cyclist example and it is not so completely daft if I may say. I cannot remember which person could come up with the example. It probably does illustrate as well how the ubiquity of insurance because almost all of these people would be insured one way or another. The only example that I can think of might be in a kind of assault case where someone says, I assaulted them and they say, I say no, you assaulted me. You are right to say that if Qox comes in now then I would lose the benefit of getting cost back from the person who is suing me. I would be able to raise a separate claim for my own damages etc. We are in the realm of examples that are completely fanciful and it does not seem to me that this is not what we should be legislating about. We should be legislating about the litigation landscape as it is, so to speak. I thank you for those examples because looking at it on the surface that is just the one thing that jumped out to me so that is where it is important to hear what is happening and is that realistic the way that it has been portrayed to us. Together with Qox, when you look at that combined with the introduction of the damages-based agreements as well what do you think that will do to the level of claims that you will see come in and do you think that that would give rise to more spurious claims as well that essentially takes away all the risk from the pursuer? I think that it is very difficult to see how many more cases there will be. I expect there will be an increase and in many ways that is its purpose. Will it see an increase in spurious claims? I am very glad we are staying away from the term compensation culture this week because it is one that I bitterly oppose. I do not think that it will lead to an increase in spurious claims I think that was addressed quite well last week by Amish Goodall. The protection is, dare I say, us and our colleagues in the profession because although the claimant will not lose out at the end of the day and require to pay out legal fees to the other side we will still not take forward spurious claims because we do, as was mentioned earlier, a duty to the court and we take that very seriously. We have a duty to our profession. We always have, we always will and we take that very seriously. But you may say more or less than that. There is a financial imperative although the claimant will not lose out. We most certainly will in a spurious claim because we will have wasted our money we will have wasted our time. Even running a spurious case will involve perhaps quote fees, expert fees reports and things like that that we will simply lose. We are too busy running our businesses trying to pursue meritorious claims to waste time on frivolous ones. Last week I think there was a supplementary question there that I am happy to deal with now regarding claims management companies and or after the event insurers who may incentivise solicitors to run a spurious cases perhaps pay them to run spurious cases to try and be polite about this. That is just not the way that claims management companies operate. They do not pay solicitors anything and nor they never have nor will they do moving forward. That is just not a realistic scenario. Similarly from an after the event insurance perspective there is no insurance out there currently that would pay a solicitor in that circumstance to run a frivolous case and I do not think that it would make financial sense for an insurer to do so because when an insurer is a betting shop effectively and in that scenario I do not see how they would ever win they would just constantly be paying out so I do not think that that is a realistic scenario either. There is concern expressed in some of the submissions as well about an increase or a fraudsters charter and recent fraudulent claims and again I do not see that as realistic for a number of reasons. We have no interest whatsoever in having any truck with fraudulent claims it does not benefit pursuer solicitors in the least but of course there are safeguards in the proposed legislation as it stands where quarks would fly off in terms of a case that was evidently fraudulent but there are also provisions in terms of making awards against legal representatives so if you are running a wholly spurious and fanciful claim then there is the protection there so I do not see the legislation as framed as being an open invitation to a huge number of spurious and fanciful claims because there is protection here and actually reputable solicitors do not have any interest in running those types of cases because they will only lose money on them anyway Just to clarify that as well so you think that there are enough safeguards there anyway to prevent that from happening Yes, sir May I answer somewhat obliquely and recommend the April campaign can the spam which wants cold calling and usins text banned is a text that people get telling them that they are entitled to £3,000 they have been in an accident etc it was part of the UK Conservative party manifesto that it would be banned understand that it is going through the financial in the House of Lords at present the financial guidance and court site that simple measure would I mean there are a lot of people living paycheck to paycheck they get a text they get a phone call saying you've been in an accident and of course they get your mobile number from the repair garage which has paid a referral fee for your mobile number and it must be very tempting when they're told you must have had some kind of injury it's easy Mr Conwan we are impressed for time with your answers can the spam that is the answer to a cheats charter very briefly the justification that Mary Gougeon has put up for Qox is the David V Goliath situation what about the situation where the pursuer is fully backed by for example a trade union so effectively you have a Goliath versus Goliath situation and the arms have been equalised shouldn't Qox disoply in that situation I think as I said earlier on Mr Kerr that's not a Goliath weak Goliath situation and Sheriff Principal Taylor took evidence widely and recognised that very point that the absolute imbalance financially between an insurance company as I said earlier who counter profits in billions compared to a trade union who have a fiduciary duty to use their members use fairly appropriately it's just not the same thing but if there were an equality of arms should Qox disoply if there was an uninsured defendant for example I think that goes back to Ms Gougeon's point that I think at the prospect of there ever being a claim brought against an uninsured person that is virtually or is negligible an example I could and perhaps should have given earlier that makes a point is is dog bite cases echoes what Mr Conway said that there are individuals who are insured through home insurance pet insurance whatever it may be and where if somebody is insured by their dog we would look at that and if there is insurance we would first look and see if there is a proper claim and if there is in those circumstances we could take it forward there are plenty of other people who do not have that type of insurance and in that circumstance we simply could not and would not take a claim forward and Qox is not going to change that quite a lot to cover Liam if it's very brief a couple of very brief questions it would need to be just one we've had well I'll bundle them together then Mr Conway you talked about the need to look at litigational landscape as it is you'll be aware again of the question I asked the bill came the other day the number of cases or the proportion of cases where the defence will seek its legal costs from the pursuit in the event of a successful defence it would be interested to know if you knew that figure and likewise could you shed some light on the financial memorandum from the Government suggests that defenders will have to balance the cost of going to court with the risk of losing a case for example if expenses in a case exceed the expected pay out insurers may settle rather than go to court even if they consider it likely that they will be successful in that case the financial memorandum then goes on to say that pursuers are unlikely to raise actions with a little prospect of success it's difficult to square those two can you perhaps square them for us first of all if we're talking about quarks the civil judicial statistics which are about cases raised show no increase over the past five or six years or so and probably a decrease and of course those are the cases that quarks will apply to the CRU figures are the whole big balloons so to speak and it's only the litigated cases that quarks will apply to if you're asking will there be situations where insurers will make an economic decision to settle a case rather than run it that happens a present Ms McArthur you get nuisance value settlements, you get nuisance value offers they are in significant cases they're not going to make you don't think there'll be more of those as a result of the provisions brought forward by this bill I have to it's impossible it's impossible to know exactly if that's enough for you there will be more cases raised I don't think it's any doubt about that I can try to circle if it would assist in Madam Tuenan because I think the two quotes are referring to two entirely different parts of the claim process there is the compulsory pre-action protocol that was spoken about last week and that I'm sure members know about that a claim must go through before a court action is raised and then there's the litigation itself my reading of those two quotes is that the first relates only to that compulsory pre-action protocol where they may settle before going to court and whereas the second quote relates to the prospect of solicitors advising their claimant pursuers to proceed and to raise a court action where there's little prospects of success that's in place and we would continue with the advent of quarks not to raise those frivolous cases so in terms of the cost to the insurance industry I'm grateful to you, Shed and Light on the Government's own financial memorandum because they weren't able to do it the other week but from your expectation would it be the case that there'll be a higher proportion of cases through that pre-action protocol that will settle in the term set out in paragraph 59 of the financial memorandum it comes back to some of the questions earlier it's impossible to tell again the question becomes are we looking at it through the wrong end of the telescope because it strikes me that some challenges to this bill and the entire notion behind it is that all additional claims are frivolous, are bad are rising out of and again I'm going to use it disparagingly the compensation culture that doesn't exist I would utterly challenge that I would suggest that if there are more claims they are likely, the vast majority all of them are more likely to be claims so if that increases that's a good thing if there's more meritorious claims that's what the bills are to do that's what we should encourage, it goes back to my point about their primary purpose to improve access to justice I know from the recent submissions there are concerns about the tests in the bill which would determine where Cox's protection is lost could you outline some of these concerns so if you have any specific suggestions about how the test could be improved if you could talk to that and also the consequences if these concerns aren't addressed who would like to start it's not just cases which are not taken although there are meritorious cases in the middle which are not taken the expenses rule does is create a the expenses rule is presently advised is a spectre please we are running out of time Mr Conwy to the three tests that's fraudulent behaviour, reasonableness and abuse of process I think I do have to make this point well if you could do it briefly I will make it briefly the expenses rule bleeds into because at every part of the process is the spectre of an adverse award of expenses bankruptcy ruination for the pursuer high value case 50% chance of winning 50% chance of losing what advice and a low ball tender comes in we've got the picture we understand what's in state could you cut to the chase please Mr Conwy let me just find to and perhaps someone else can answer if you want to reflect on your notes I think actually having read all three and indeed the STC and various other trade union submissions as well the concerns relate to the current drafting of 4A makes a fraudulent representation in connection with the proceedings and C otherwise conducts proceedings in a manner that the court considers amongst an abuse of process the concerns I think echoed albeit phrased slightly differently are the same in relation to both tests and I'll give one very brief caveat first of all it's all about certainty the entire purpose behind the sheriff principle Taylor's recommendations are the need for certainty the current drafting we would all say and all the trade unions would say does not provide that certainty it is an open invitation to challenges and to what's called satellite litigation and we would say that both of those tests A and C require to be tightened the problem with makes a fraudulent representation is that it could be a single comment this entirely peripheral to the centre point the significant material part of the claim one could compare that to the equivalent test in the English rules I've been here since 2013 that talks about the entire claim being fundamentally dishonest that's a level we have to get at to reach the very high bar again to refer back to Sheriff Principle Taylor that is required that has to be in our submission not peripheral in something that is at the heart of the claim so for alternative forms of words there are greater lines in mind when it comes to drafting but it could be something along the lines of that the that has to indicate that the entire claim is fraudulent or a material aspect of it there has to be a material aspect a material proportionality point as for C I think everyone that's commented on this section makes the same point that Sheriff Principle Taylor recommended that quarks be removed if the Weddensbury test of reasonableness is met I don't need to go over that because it's in every submission and it was canvassed at Llanf last week our submission is that the current drafting does not meet that test I know there is a suggestion that the additional words at the end of that amongst to an abuse of process may be the saving grace there's a suggestion that there must not only be an unreasonable conduct but also an abuse of process that takes it to the Weddensbury level that may be the case but what we all want to avoid is hours upon hours upon hours of satellite litigation it could be framed more tightly and to make things simpler for everyone it ought to be framed more tightly and simply a statutory definition of what is meant by unreasonable conduct ought to be in the bill and ought to be verbatim basically the Weddensbury test thank you that's comprehensive anything to add to that the other members happy with that explanation just madam chair it's in the April call for evidence submission that suggested as far as fraudulent representation is concerned at pages 4 and 5 thank you that's great Mary thank you I will be very brief I want to direct my questions to Mr McGuire in the absence of Dave Moxham from the STUC I wonder if you could perhaps give us some assistance on the issue of unions and I wonder if you could perhaps give us a bit of detail about the impact that unions having to pay quote fees upfront currently have on both the union and the union member and I'll roll my questions into one to make it easier for you and whether currently unions recover fees from members and do you think there could ever be in the future a situation where unions would consider referring members to no win no fee solicitors and there has also been concerns raised in the submissions from both the STUC and I believe from Thompsons that the bill should bestly state that section 10 does not apply to trade unions Mr McGuire thank you very much for that very lengthy question I of course have neither the hear nor the beard to stand instead of Dave Moxham but will do my best to answer on his behalf and perhaps we can deal with some of the simpler questions more quickly section 10 should absolutely not apply to trade unions I think actually it's perfectly clear from a principle Taylor's recommendations and indeed from the Scottish Government's response to it that it's intended only to apply to I guess the term would be litigation adventure capitalists and by no means trade unions so I would say that yes it's currently drafted there's an argument again and it's back to the clarity of drafting there's an argument it doesn't because of the term but has financial interest in and there's an argument that trade unions do not have such a financial interest in but let's not invite satellite litigation let's just have an absolutely clear black and white interpretation section so I think that deals with that here's an even easier one do trade unions, would trade unions ever take court fees from their members no trade union members always receive 100% of their damages would trade unions ever refer their members to a claims company I think the forefathers in a trade union movement would be turning in their graves at that prospect it's an unequivocal no so we do have to find a system where recognising that it's not Goliath v Goliath that trade unions who are more and more under financial pressure these days because of the sweeping aggressive changes of laws south of the border that many of which is aimed specifically at trade union finances that it becomes more and more difficult to operate and court fees places an additional financial burden on trade unions it's that plain and it's that simple because the current model of court fees is one that's described in Thomson's paper and the STEC's paper as a pay-as-you-go model that as soon as you want to go to court checkbook out and pay for different stages of the process if and when the trade union client is successful that money comes back but what it represents is a and it is significant I use the word deliberately it's a significant cash flow strain on the trade unions when they could least do with that problem we then look at the very recent decision in the supreme court that relates to employment tribunal fees it's interesting that employment tribunal fees were roundly accepted as inappropriate and an absolute barrier to access to justice and so they were but court fees has been a bit of a kind of overlooked barrier it is an absolute and real barrier and is becoming one more and more as trade union finances become more and more strained so what is proposed by both Thomson's and by the STEC is simply a remodelling no more, no less reduction in the overall income to the Scottish Government or the civil justice fund simply a different way of paying those court fees that is by moving from a pay-as-you-go model to a deferred payment at the end in other words we would say simply treating court fees in exactly the same way as defenders costs are treated in this bill and we say that in fact because this bill is dealing with access to justice and because now especially given the supreme court judgment this is a perfect opportunity to do that okay that's been very helpful thank you for that and I'm not asking more questions we should say Dave Mokson deputy general secretary during was due to period and wasn't able to for ill health reasons so thank you very much for answering me on his behalf can we move to our final set questions Ben Wallace sorry Ben McPherson okay good morning this matter's been touched on briefly by a few of you already but I think it's an important area to just get clarity on and get your thoughts on do you think that there may be consequences of not introducing formal regulation of claims management companies as part of the bill well I guess it was your final couple of words that caused me to hesitate as part of the bill there is an absolute need to regulate claims management companies but there is an even greater I think at this moment need for this bill to be taken forward and I would not want one to derail or at least put on hold the other so absolutely we must regulate the companies but if that's going to be a year down the line and this bill comes into force in the meantime so be it but just for clarity it would be more beneficial if they could be done in tandem if it could be done right now yes that is a better scenario but I don't see how the parliamentary timetable permits that but it's not for me and I think does anyone else have anything to say on that because it's quite important and you touched on the matter before Mr Conway yes indeed well I would agree with Mr McWire in fact but I do understand that the matter is under to be under review within the next few months basically in this place so I do a world where the regulations would be in at the same time but we've already waited since 2013 for this legislation please get on with it and then deal with the Clowns management companies as in point so clear view is proceeding and take action as quickly as possible as it is okay thank you and just lastly because I think definitions are important as was touched on earlier do you consider that the definition of relevant legal services at 1.2 in the bill is wide enough to catch claims management companies basically so that there are no when no fee arrangements would have to meet the same requirements in the bill I think it ought to be but again going back to all my other comments about the need for clarity and to avoid satellite litigation the sensible thing would be for me interpretation section there confirming it because it certainly ought to capture those arrangements too but you would say that a specific definition a tightening of the definition to use your phraseology earlier would be advantageous would be helpful you would never like to predict ways in which people might warn the way through legislation but it does seem to me that to a subject of civil proceedings and to be in relation to which such proceedings are in contemplation would clearly attract claims management company activities so there's a slight divergence there but do you think that because I mean Thomson's and the trade union movement are part of a far wider organisation and movement and the amount of satellite litigation that we've seen over the years because of bills exactly like this makes me extremely cautious so if you know at stage 2 or stage 3, a one-liner could be added to absolutely put it beyond out that would be my preferred route OK, anything else to add on that point OK, thank you Cymru that concludes our line of questioning and I thank the panel members very much for attending that was very worthwhile session agenda item number 2 is the justice committee on policing and we have feedback from the convener Mary Fee on the meeting of the 14th of September 2017 and I refer members to paper 3 which is not by the clerk Mary The justice subcommittee on policing met on the 14th of September when it took evidence from Ian Livingstone deputy chief constable designate of Police Scotland and Nicola March and deputy chair of the Scottish Police Authority on Police Scotland's internal complaints procedures and the subcommittee was pleased to hear that Police Scotland has shifted its focus from process to people to ensure that police officers and staff are better supported and have more confidence in Police Scotland's complaints procedure and this includes for the first time the introduction of a whistleblowing policy as well as a wellbeing initiative which aims to support staff to deal with a wide range of issues whether these are personal, procedural or related to conduct and more detail on how these will impact on supporting officers and staff in feeling confident that the issues that they raise will be dealt with effectively and confidentially. The next meeting of the subcommittee is scheduled for Thursday 28 September when it will take evidence from the Cabinet Secretary for Justice on governance of the Scottish Police Authority and I am happy to answer any questions that the committee may have. Are there any questions from Mary? No questions? We're pleased the focus has moved from process to people we'll see if it's actually realised it'll be the test. Thank you very much for that. We now move into private session. Our next meeting will be on Tuesday 19 September 2017 when we'll continue our evidence taking on the Civil Litigation Bill and I suspend briefly to allow the public gallery to be clear. It's gone. Comfort break everyone.