Clinical Negligence And The NHS Refusal To Structure Settlements With Profit

Transcription

1 Clinical Negligence And The NHS Refusal To Structure Settlements With Profit RICHARD LEWIS* This article examines the wider context of recent litigation which challenged the form in which damages for personal injury are paid. It focuses upon a test case that is of particular importance to claimants severely injured as a result of clinical negligence. R v Liverpool Health Authority et al ex parte Hopley 1 involves judicial review of a Health Authority's refusal to pay damages via a structured settlement based on a with profits formula rather than one linked to rises in the Retail Prices Index. To what extent could the reasons for refusing such a settlement be held up to judicial scrutiny, and the relative merits of the different forms of structure be evaluated? Could the claimant question the excessive paternalism and self-interest, which were alleged to lie behind the Authority s decision? In examining different forms of structured settlement this article highlights major issues relating to the future of the damages award. It discusses the burden of litigation costs currently being faced by the NHS. Finally, it considers the reforms being contemplated by the Lord Chancellor s Department and others, some of which are to become law when the present Courts Bill completes its Parliamentary stages. * Cardiff Law School, Cardiff University. I am grateful to various academic colleagues and practitioners for their comments. 1 [2002] All ER 459, [2002] Lloyd's Rep Med 494, [2002] EWHC

2 The Attractions of Structured Settlements Until 1988 damages at common law were always paid by means of a lump sum, never a pension. It did not matter that the compensation was for losses that might be suffered in the future: both the monthly wage that the accident victim may have lost, and the continuing costs of care that would have to be met, were compensated by one large payment. In recent years this lump sum system has been subject to increasing criticism. In particular, the enormous responsibility for safeguarding the future that it imposes upon a claimant makes it a very worrying means of obtaining compensation. However, a new form of payment has made limited inroads into the lump sum. Over a hundred very seriously injured people each year now receive part of their compensation in the form of a pension derived from a structured settlement, and well over a thousand of these arrangements have been made since they first began in this country. 2 A structured settlement usually takes the following form. The defendant's insurer, having agreed a lump sum figure, will arrange to convert part of that sum into a series of periodic payments structured to accommodate the claimant s individual needs. To fund the arrangement, the liability insurer purchases annuities from a life office, and assigns the benefit of them to the claimant. Unlike the income that arises from the investment of a lump sum, the regular payments are free of tax in the claimant's hands. Originally this was because the Revenue accepted that they could be considered instalments of capital rather than income, but now their tax-free status derives from the specific provision made in the Finance Acts of 1995 and See generally R. Lewis, Structured Settlements: The Law And Practice (1993) Sweet and Maxwell, and I. Goldrein and M. de Haas (eds), Structured Settlements: A Practical Guide (2nd ed 1997). 2

3 The main advantages of a structured settlement are that it offers greater certainty and security compared to the traditional lump sum. The regular payments need not run out or be eroded by the passage of time. This is because they can be protected against inflation, often being linked to rises in the Retail Prices Index (RPI). Backed by an annuity, they may end only on the claimant s death, and can even be guaranteed to continue beyond that date if there are dependants in need of protection. A structure thus relieves the claimant from the stress of having to invest and be responsible for a lump sum greater than most people will encounter in their lifetime. The arrangement can be especially advantageous financially if there is dispute about the claimant s life expectancy. In addition, it can be a very tax efficient means of securing continuing payment. From the state s viewpoint, structures might also save money because they help ensure that damages are not dissipated by feckless claimants 3 or the depredation of friends or relatives 4 : the injured are then less likely to find themselves reliant in the longer term on the limited resources of the welfare state. For these and a variety of other reasons, structured settlements have received the support of judges, law reformers and many practitioners and their clients. However, as we shall see, the development of structures has been impeded by changes in the wider financial world that underpins the compensation system. In particular, soon after structures first appeared interest rates began to fall and the stock market rose sharply. Structures, usually founded on the purchase of gilts, then appeared less attractive than the alternative of investing a lump sum in equities. In spite of this, structures have continued to be used for a variety of reasons, and 3 In fact this rarely happens. Lewis op cit paras 6-10 et seq. 4 See, for example, The Times, March 9, 2000, Father Used Half Of Son s 400,000 Payout. 3

4 especially because of the certainty they provide. They have proven especially popular in cases of clinical negligence. Structured Settlements in the NHS On behalf of the Health Authorities, the National Health Service Litigation Authority (NHSLA) has taken over financial and claims handling responsibility for cases of clinical negligence. It automatically considers the possibility of a structure in any claim which is likely to exceed 250,000 5 and about 250 NHS structures have been put in place to date. 6 The concept is particularly attractive to the NHS. Defendant Authorities can self-fund the continuing payments involved in a structure instead of parting with a lump sum to buy annuities from the insurance market. They can then keep the cash in-house and thus avoid the problems caused by the loss of large capital payments. In the past, the amounts needed for lump sum awards have fluctuated widely, and their payment could have dramatic effects upon health care budgets: major capital expenditure was deferred and even wards closed. 7 Self-funded structures thus make more money available to the NHS in the short term. This is especially attractive to a Government keen to increase the resources immediately available for health care. Apart from this cash-flow benefit, there is another more subtle incentive to structure. The Treasury makes assumptions about the value of money retained under NHS control which encourages Health 5 NHS Executive s letter to Health Authority Chief Executives July , FDL (96) This estimate is based on statistics supplied privately to the author by leading intermediaries in the field. 7 R. Dingwall et al, Medical Negligence: A Review And A Bibliography (1991) p 55. 4

5 Authorities to self-fund the continuing payments without resort to the insurance market. 8 The potential saving on the NHS current account is significant. Damages payments for clinical negligence in rose to 373 million, increasing by 152 million from the previous year. 9 These actual payments are far below the 4 billion provision made for likely future settlements in a report from the National Audit Office. 10 This has been described as a much exaggerated figure and highly misleading, 11 and has given rise to sensational press headlines. 12 However, there is no doubt that there has been a substantial rise in the number of new claims: they increased to over 10,000 in 2000, the Audit Office also estimating that they rose by 72 per cent between 1990 and The exaggerated provision for liability figure further increased in the year to March 2001 from 3.9 billion to 4.4 billion. 13 Whatever the amount that will eventually be paid, it is at least clear that there is increased scope for structuring NHS claims. 8 For details see Lewis, op cit para Statement made by Hazel Blears, Parliamentary Under-Secretary of State for Health, April 10, See also Hansard (Written Answers) July col 735, and April col 286. The total NHS budget is approximately 48 billion. 10 National Audit Office, Handling Clinical Negligence Claims In England (HC 403 Session , May 3, 2001), and the House of Commons Public Accounts Committee Report No 37, Handling Clinical Negligence Claims In England (HC 280 Session , 13 June 2002). 11 D. Marshall, Dressing Up The Figures? [2002] New L J 1632, and P. Fenn et al, Current Cost Of Medical Negligence In NHS Hospitals: Analysis Of Claims Database (2000) 320 British Medical J (June 10), and (2002) 325 British Medical J For example, "Cost Of NHS Claims May Hit 8bn" The Guardian, April 24, Public Accounts Committee Report No 37, op cit para 6. 5

6 Dangers in the NHS Accumulating Liability to Make Future Payments Government has guaranteed these NHS self-funded structures and claimants can be assured that their future payments are copper-bottomed. 14 However, these savings to the NHS do not accrue without risk to public funds. There is a potential problem involved in the NHS acting as if it were a miniature life insurer by accepting continuing, uncertain, liabilities into the future. Although the Treasury has calculated the investment returns for the NHS on a basis favourable to self-funding, no work has been done upon the mortality risks. It is extremely difficult to forecast how long claimants who have suffered severe injuries will live. It is therefore difficult to estimate for how long the payments under a structure must be made. Even experienced life insurance offices have been reluctant to become involved with annuities for impaired lives. The setting of rates in such cases has been seen as little more than a gamble. Nevertheless these are the risks which the NHS are now routinely accepting. A worrying aspect is that these risks are being assessed without any of the criteria or experience of established underwriters in the field. Although Health Authorities are relying upon an intermediary broker to obtain quotations in the annuity market which will enable them to establish the level of instalments to be paid, in effect in each case they are matching the best quotation received. This is something a life office would never do, partly because of the danger of the most 14 See the NHS (Residual Liabilities) Act In Wales the Ministerial responsibilities were transferred to the Welsh Assembly by the first Transfer of Functions Order made under the Government of Wales Act (SI 1999/672). This would seem to mean that the any future liabilities of a Health Authority, which is, wound up under the Assembly's reorganisation proposals will be transferred to the Assembly under the Act, but there remains some doubt about this. But see now clause 93 of the Courts Bill which is intended to provide further protection for structures, including those in the public sector throughout the United Kingdom. 6

7 favourable quotation having been made in error. 15 Furthermore, the life offices are aware that when asked to quote in a NHS case they are not going to receive any business as a result of their effort. As a result, the handful of insurers underwriting structured settlements is reduced to only three that are prepared to continue to quote pro bono publico in NHS cases. Much less reliance should be placed upon the results than presently is done. It might well be that eventually far more money will have to be paid out by the NHS than is presently forecast. The danger of storing up excessive liability to be met in the future can only be made worse if the number of structures were to be increased, but this is just what is envisaged in the reforms discussed below. The Facts in Ex Parte Hopley Richard Hopley has cerebral palsy. He is profoundly disabled, needing care night and day. His condition is alleged to be the result of medical negligence at his birth. However, he reached the age of 27 before his claim for damages was finally settled. Liability had been in dispute, but eventually a compromise was reached in June Liverpool Health Authority agreed to pay half the damages that would have been due had Richard been able to establish full liability. This meant that 2.1 million pounds was payable. In spite of the size of this settlement, Richard s advisers were concerned that the 50 per cent reduction might mean that there would not be enough money to pay for the care Richard needs for the rest of his life. They therefore sought a structured settlement, which would guarantee payments for 15 One study of six structures found that on average the lowest quote per case was 72 per cent of the highest. In one of these cases the lowest quote was 908,000 and the highest 1.7 million. Lewis, op cit para The effects of mortality rating-up can be crucial. See Teitelbaum, The Effects Of Mortality On Individual Annuities (1988) 40 Transaction Of the Society Of Actuaries 653, at p

8 Richard s lifetime. However, the compromise on liability meant that the payments generated by an RPI-linked structure would be insufficient to meet the annual care costs. The deficit was made worse by the likelihood that care costs will increase at a faster rate than prices: in the ten years to 1999, care costs outstripped price inflation by 1.5 per cent a year. Therefore, if the returns on the damages fund were to be maximised, any structure would have to be set up without resort to the price index formula. The solution favoured by those advising Richard was for most of the damages to be invested in a with profits structured settlement. For reasons explained below, not only would this produce a higher initial yield, but potentially it would also deliver higher returns than a RPI structure in the longer term because of it being linked to a wider range of investments. However, the Health Authority refused to set up such a structure, although it was prepared to arrange one, which was RPI linked. It was this refusal which Richard challenged by way of judicial review. It was a test case: there were more than forty other claimants awaiting the decision. The Health Authority was acting in accordance with guidance given by the NHSLA and the Secretary of State for Health. They considered with profit structures to be a relatively untried product and difficult to evaluate. More important, however, was the fact that the NHS would lose the financial advantage it enjoyed with selffunding because it cannot offer structures on with profit terms unless it buys such annuities for a lump sum from the insurers offering them. The NHS has neither the financial expertise nor the mechanisms required to self-fund with profit arrangements, and would therefore lose the cash flow benefit. The Department of Health's policy was therefore to offer only RPI linked settlements. 8

9 The Advantages of With Profits Structures to Claimants A disadvantage of RPI linked structures in recent years has been that that the certainty of payment provided by such an arrangement has been bought at a high cost. In order to fund the guaranteed long-term payments, life insurers have been required for solvency purposes to provide equivalent matching assets. This has meant that, in effect, they have been forced to purchase index-linked gilts issued by the Government (ILGS). These have been expensive investments, the market for them being artificial and dominated by pension funds anxious to secure index-linked returns. 16 The Government has made all too few of these gilts available to the market. 17 The result has been that their yields have continued to fall and are currently below 2 per cent. Although there is some hope that matters will soon improve a little, 18 the artificially high cost of indexation has proven a great disincentive to structure. By contrast to RPI-linked structures, with profits arrangements are not tied to any index or to the purchase of the more expensive gilts. Instead, the income is guaranteed by conventional gilts (which usually make up a third of the value of the fund), and by equity and property portfolios. They are therefore backed by a wider range of investment and have a very much greater exposure to the stock market. Historically, the returns on equity investment have been much higher than price inflation. However, as events in the market in the last few years have shown, the 16 As a result of the minimum funding requirement introduced by the Pensions Act Following its issue of index-linked gilts in 1992 the Government did not make any others available for many years. However, in 2002 a new issue was made with a final date for redemption in Following the pre-budget statement in November 2002 the Chancellor of the Exchequer announced that he planned to issue more gilts to help finance an additional 20 billion of Government borrowing. In a year s time this could result in a 0.5 per cent rise in gilt yields and annuity rates, although strong demand for annuities may give insurers less incentive to pass on such a rise to those seeking an annuity. 9

10 rewards of equity investment in the short term are notoriously uncertain. A gamble is involved, albeit one which, at least with regard to long term investment, still attracts the support of the Court of Protection as well as the great majority of financial advisers. Even the Lord Chancellor, when setting the discount rate for multipliers higher than the returns available from index-linked investment, accepted that claimants in effect were still expected to accept risk by investing in the market. 19 Because there is less constraint over the investment basis of a with profits policy, such a structure can offer a much higher initial yield than one which is RPI linked. In Richard Hopley's case, the initial payments would have been 21 per cent higher. This income cannot be reduced. In addition, a bonus can be declared each year. In Richard s case the company had priced the annuity such that it could declare a bonus of 4 per cent in the first year, and it expected a return of 6 per cent after tax to help sustain bonuses at that level. In the opinion of Richard Hopley s financial advisers, it was unlikely that an RPI annuity would ever catch up with the returns from the with profits one which he sought. There are only four insurers at present who are active in the structured settlement market, and only two of these are prepared to offer with profit structures. Windsor Life introduced the with profit formula in December 2000 and were followed a few months later by NFU Mutual. Because of the advantages offered by the with profit formula, these two insurers have been responsible for four out of five non-nhs structures established in the last two years. The two other insurers, Scottish Widows and Standard Life, have become much less involved in the overall 19 The discount rate was set at 2.5 per cent whereas the return on ILGS was 1.9 per cent. See the Damages (Personal Injury) Order made pursuant to s.1 of the Damages Act The Lord Chancellor's reasons appeared on the LCD website when he considered the matter afresh in July See 10

11 market. With profits structures have not only been keenly sought by claimants, but have also been approved by the Court of Protection, and have been set up in cases involving Government bodies such as the Ministry of Defence and the Criminal Injuries Compensation Authority. However, it is much harder to compare with profit structures than those, which are RPI linked. This is because RPI products are effectively the same and it is almost always the price that determines which insurer is chosen to supply the annuity. By contrast, the two with profit insurers offer products with different initial yields. The NFU offers a lower initial bonus than Windsor Life but has the prospect of higher long-term growth. Assessing their relative merits requires examination of the assumptions upon which the returns are based, an analysis of the performance of the underlying funds, and some knowledge of the financial strength and structure of the companies. It is much more difficult to compare the risks attached to with profit investment with either the certainties of the indexed fund or the merits of a lump sum. As discussed below, this difficulty may be exposed in future when courts attempt to use their new powers to order that damages be paid in the form of periodical payments, even though this is against the wishes of one, or even both, of the parties. With profit structures are a response to the limitations imposed by the ILGS market. However, the basis upon which they are founded could hardly have been marketed at a worse time. With regard to insurance products generally, with profits has become a term to arouse much suspicion. 20 Recent bad publicity has culminated in the Equitable Life fiasco. The marketing of with profits structures has 20 Battered by stock market falls, both Royal & Sun Alliance and Scottish Mutual have recently closed down their troubled with profits life businesses. Pearl Insurance, owned by AMP, is similarly winding down its business. 11

12 also coincided with extreme stock market volatility and substantial falls in share values. We have experienced that rarest of events a decline in the market for three consecutive calendar years. 21 There is therefore much suspicion of the with profits product in general. But where structures specifically are being considered, the with profits formula has been widely supported. Financial advisers and others acting on behalf of claimants see it as their preferred solution to the ILGS problem, especially where the level of pension would otherwise be insufficient to meet the claimant s needs. With such expert advice, why should a Health Authority refuse to allow such an arrangement, and why cannot a court intervene to compel consideration of the merits? The answers are to be found in the decision of the court in ex parte Hopley, although as discussed below, these will need to be reconsidered when the Courts Bill becomes law. The Decision in Ex Parte Hopley An important limit on the present use of structures is that they can only be set up with the consent of both parties. 22 This will soon change because the present Courts Bill makes provision for court-directed periodic payment damages awards. However, the existing requirement of consent has caused many potential structures to founder. In Hopley s case the defendant was prepared to consider a self-funded RPI arrangement, but not one based on the with profits formula. There was concern that the claimant should not be disadvantaged by the uncertainty of this new form of 21 The FTSE 100 index has fallen by 25 per cent in 2002, 16 per cent in 2001, and 10 per cent in This is the first three-year decline for 40 years. 22 The right of the defendant to refuse to consent to such an arrangement was confirmed in Burke v Tower Hamlets Health Authority, The Times, August 10,

13 investment. However, the main reason against such a settlement was that it did not represent value for money for the NHS. The claimant argued that the refusal was unreasonable because the advantages of with profit settlements were clear, other Government departments having already set up such arrangements. The Health Authority had fettered its discretion by applying the Department s blanket policy against the with profits formula, and by refusing to consider the circumstances of the individual claimant. Alternatively, if the Authority had considered the issue, it had taken irrelevant matters into account. These arguments of the claimant did not prevail. Pitchford J held that the Health Authority s decision was not amenable to judicial review because it involved no public law duty to the claimant. There was no right to a structured settlement which could be enforced in private law, nor had the claimant been deprived of any legitimate expectation of obtaining one. The Authority had only to consider giving consent to a settlement. This it had done, and therefore the application for review failed. However, the judge then went on to consider whether, if the decision had been reviewable, it was unlawful. In his view, the Health Authority had not chosen to fetter its discretion because it was acting under the direction of the NHSLA and the Department of Health. It was the policy being operated by the Department that was the claimant s real object of attack. The Secretary of State had been given a wide statutory discretion in the handling of claims and, in the judge's view, none of the considerations he had taken into account were irrelevant. In particular, when he exercised his discretion it was essential for him to consider any present or future financial advantage that might accrue to the NHS. The cash flow benefit from arranging a self-funded structure was certainly one such advantage, and the financial 13

14 effect upon the NHS was the most important factor overall. By contrast, the judge thought that little weight should be given to paternalistic concern over what was better for the claimant. The judge noted that it would have been open to the Secretary of State to permit with profit structures. However, the issue was not whether the court would have come to the same conclusion as the Minister, but whether the decision made and the policy adopted were unreasonable and amounted to an abuse of power. The judge was satisfied that they did not. Reforms Recently there has been much concern about the growth in the number of tort claims and the cost of the compensation system. 23 For whatever reasons, it is now clear that in some areas there is a liability insurance crisis. 24 Those fearing a descent into an unwarranted compensation culture have focused especially upon the problems faced by the NHS. This concern has been reflected in the committees recently set up to examine changes to the tort system. 23 The most recent report is that from the Institute of Actuaries, The Costs Of Compensation Culture (2002). It is published at It argues that costs have been increasing at 15 per cent a year. Including the legal and administrative costs, it estimates the total bill at about 10 billion a year, with the NHS accounting for 900 million. However, the bases of these estimates are open to question, and the figures given always err on the side of insurers. For similar concerns see F. Furedi, Courting Mistrust: The Hidden Growth Of A Culture Of Litigation In Britain (1999) Centre for Policy Studies, and contrast E. Lee et al, Compensation Crazy: Do We Blame And Claim Too Much? (2002). 24 In December 2002 The Office of Fair Trading announced a study into the liability insurance market. This was in response to the fast rising cost of cover and the reductions in underwriting capacity. See press release no 86/02 The Department of Work and Pensions is already conducting an investigation into employers liability insurance where employers have been driven out of business or are failing to comply with their statutory duty to insure. The insurance company, Axa, claims that 210,000 firms are operating without liability insurance, the cost of which has risen by 40 per cent this past year for 10 per cent of small firms. See The Sunday Times, December 15, 2002, "Insurance Crisis Leaves Firms Facing Closure," and December 29, 2002, "Insurance Crisis Grows." 14

15 In one investigation, the Chief Medical Officer is examining alternatives to tort litigation in medical cases (and finding that there are many problems with instituting any form of no-fault compensation). Two other committees have specifically considered the role that structured settlements might play in our existing liability system. One of these, set up by the Lord Chancellor s Department, is undertaking a wide ranging review of whether periodic payments, in different forms, could be extended further. Its remit includes consideration of whether courts should be given the power to impose a structured settlement against the parties wishes. Eight years ago this power was rejected by the Law Commission as premature. 25 However, responses to the recent LCD Consultation Paper 26 proved so favourable that a clause was hastily inserted into the Courts Bill now proceeding through its Parliamentary stages. 27 The Bill amends the Damages Act 1996 which defined and gave statutory recognition to the concept of a structured settlement. It allows a court to order that all or part of a damages award take the form of periodic payments. Crucially, the order can be made without the consent of the parties. The power can only be exercised in respect of damages for future pecuniary loss. This will include all serious injury cases, although these comprise only a small minority of all tort claims. 28 The Bill also requires a court to be satisfied that the arrangements for 25 Law Commission Report No 224 (1994, Cm 2646), Structured Settlements And Interim And Provisional Damages. See also Lewis op cit para et seq. 26 Lord Chancellor's Department, Damages For Future Loss (March 2002, CP 01/02), and Analyses Of The Responses To The Consultation Paper (November 2002, CP (R) 01/02). 27 The Bill was introduced into the House of Lords on November 28th 2002, and the final committee stage is scheduled for February 18th 2003, with Royal Assent following shortly thereafter. 28 According to a British Insurance Association estimate, this head of damages is present in only 5.5 per cent of cases. See the Report Of The Royal Commission On Civil Liability And Compensation For Personal Injury (1978, cmnd 7054), chairman Lord Pearson, vol 2 para 44 (the Pearson Report). 15

16 making payments under the order are reasonably secure. The consent of the court is needed if a claimant later wishes to assign the right to receive these payments. However, there is no detailed guidance on how these court powers will be used, this being left to Civil Procedure Rules which have yet to be drafted. Many questions arise: in what sort of case should the power be exercised (for example, at what threshold of damages?); and what sort of annuities should be bought and on whose advice (for example, RPI or with profits?). The problems of assessing the merits of different forms of structuring have been discussed above. It is even difficult to compare the products of the two companies presently offering with profit returns. It will be interesting to see by what mechanism courts resolve these and other difficulties that the imposition of periodic payments will raise. The with profits concept will therefore continue to cause problems as structuring enters this new phase in its development. Meanwhile another working party - this time set up specifically to consider structured settlements by the Master of the Rolls - reported last August. 29 It proposed that a Practice Direction be adopted which would require evidence that the parties had considered a structured settlement in all cases where the claimant was incapable of acting for himself. These comprise a large number of serious injury claims, and the reform is likely to force practitioners to become more familiar with the benefits of using structures in an overall settlement package. Not only will structures be used more widely, but more with profits settlements will be negotiated, given the preference of advisers for that approach as against costly RPI linked structures. As for the NHS, the future of the with profits concept must await the Department of Future pecuniary loss comprises only 8.3 per cent of the total damages paid in tort. Ibid vol 2 table

17 Health s review of the RPI only policy. There will be no appeal from the Hopley case, but when the Courts Bill becomes law there is bound to be an application in a NHS case for periodic payments to be imposed. Conclusion Because the claimant had no right to a structured settlement and the Secretary of State had a wide statutory discretion in settling claims, it was always unlikely that the application for judicial review in Hopley would succeed. However, the litigation did force the NHSLA to reconsider its policy and highlighted the high price that has to be paid by some seriously injured claimants for the certainty of payment provided by a structure. Allowing the NHS to continue to refuse to set up with profits structures means that, for the time being at least, it can retain the cash flow benefit of self-funding RPI linked structures. One consequence of this policy against with profit arrangements has been that some claimants have been driven away from structuring altogether. The NHS then has had to pay out the lump sum in full. Where self-funding has taken place another cost of the policy has been that the NHS has been storing up future liabilities which have not been accurately quantified. Whether NHS opposition to with profits structures can continue to prevail after the courts have been given power to impose settlements against the wishes of either of the parties remains to be seen. In many respects therefore the debate over with profits structures encapsulates important issues concerning the changing nature of the damages award, and the future of the tort system. 29 Structured Settlements: Report Of The Master Of The Rolls Working Party (2002). 17