The Lord Chancellor Kenneth Clarke gave evidence to the Joint Select Committee on Privacy and Injunctions on 16 January 2012 (uncorrected evidence published on 23 January 2012). In answer to a question by Lord Boateng, Clarke said:‘When it comes to the question of the small man taking on the big defendant, we are making provision for some qualified transfer of costs in order to give equality of arms, as the jargon phrase is often used, to those who wish to take on a bigger institution. We are making provision whereby in certain circumstances you can enable a poor litigant, or one who is taking on a giant, to be relieved of the risk of paying the costs of the defendant. All of that is currently before the House of Lords; it is in the legislation we have at the moment.’

He then went on to confirm that his view that tactical costs strategy, presumably applying whether as a defendant or claimant in litigation, was as follows: ‘If you are a powerful man trying to shut up a less powerful one you deliberately pile on the costs, time and process in order every now and again to remind the defendant that the stakes are rising if he persists in making these allegations.’

Lord Mawhinney sought clarification as to the role of government in court procedure saying: ‘But speed and efficiency almost certainly would require the government to have a behind-the-cowshed conversation with the judges in order to encourage the change of processes which would give you the speed and efficiency and lead to lower costs.’

Clarke replied: ‘I agree that rules of procedure for the civil and criminal courts are not matters for legislation or the government to deal with directly. We do not do that.’

Clarke fundamentally contradicts the position actually taken by the government as described by justice minster Lord McNally heading the civil costs reforms in the House of Lords in a letter of 23 November 2011 to the Professional Negligence Lawyers Association. The proposals to which the Lord Chancellor refers where ‘you can enable a poor defendant, or one who is taking on a giant, to be relieved of the risk of paying costs of the defendant’ are called ‘qualified one-way costs shifting (QOCS)’. Lord McNally states the government proposals ‘do not require primary legislation and will be implemented through changes to the civil procedure rules’.

In an email to the Professional Negligence Lawyers Association, Vilopa Pitel of the Ministry of Justice dated 21 September 2011, copied to the Civil Justice Council, stated as follows: ‘...the government has decided to introduce QOCS only in personal injury claims (including clinical negligence).

'The government published Reforming Civil Litigation Funding and Costs in England and Wales - Implementation of Lord Justice Jackson’s Recommendations: The Government Response, on 29 March 2011, which stated that the Government was not proposing to extend QOCS beyond personal injury at this stage.’

Therefore the Lord Chancellor’s stated position to the Joint Select Committee is entirely incorrect on two counts. First that QOCS, the measure he describes as protecting the ‘poor litigant’ or a litigant ‘taking on a giant’, is in the legislation before the Lords - it is not. Second he states that rules of procedure are not matters for legislation or for the government to deal with directly. He says specifically ‘we do not do that’ when the MoJ states the opposite by referring specifically to government direction to the Civil Justice Council on implementation of QOCS to take place in the civil procedure rules.

By coincidence, concerns were also expressed on 18 January 2012 by Lord Prescott in the House of Lords in the phone-hacking debate. Lord Prescott commented: ‘My Lords, is the minister aware that the appalling level of these arrests and prosecutions reflects badly on the British press and was made possible only by the use of no-win no-cost litigation by those who were complainants, including me.

'Why are this government in their legislation on legal aid quite prepared to meet the unanimous demands of the press that we reduce their costs in such situations and yet increase the costs of individual complainants and reduce their access to no-win no-cost litigation? Can he assure the House that those he has mentioned as having been arrested, including the prime minister's former adviser, [Andy] Coulson, played no part in changing the policy of the previous government, who rejected the request from the media?’

The government’s Lord Henley replied: ‘My Lords, I can agree with the noble Lord that this has not been the finest moment for the British press. His remarks about no-win no-fee go wider than the question on the Order Paper, but that is a matter that we will obviously have to take into account. On the broader issue of phone hacking, phone hacking is obviously illegal, but we must await the outcome of the Leveson inquiry before we make any final decisions in this matter.’

Next week the government are pressing for implementation of reforms to ‘no-win no-fee’ funding in the Legal Aid Sentencing and Punishment of Offenders Bill - sections 43 abolishing recovery of success fees and 45 abolishing recovery of legal expenses insurance premiums. Lord Hanley is not the only one concerned that the MoJ should take account of no-win no-fee and await the outcome of the Leveson Enquiry.

Further the 13 Lords and 13 MPs forming the Joint Select Committee on civil litigation involving privacy and injunctions have also spent many months considering and hearing evidence and their report is due to be delivered shortly. Indeed there must be added concern that they will now be influenced by these incorrect statements given in evidence by the Lord Chancellor on 16 January 2012. Will the ministers of justice ignore their views too?

Katy Manley is chair of the Professional Negligence Lawyers Association