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Grayling judged 'unreasonable' over mesothelioma

Lord Chancellor loses another High Court challenge over LASPO consultation

3 October 2014

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The Asbestos Victims' Support Groups Forum UK has won its High Court challenge against the government's decision to make mesothelioma sufferers pay legal and insurance costs out of their own damages.

The legal action was brought after the government announced that mesothelioma sufferers should pay up to 25 per cent of their compensation for legal costs should they win their case.

The House of Lords originally exempted mesothelioma sufferers from section 48 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) until the Lord Chancellor had conducted a review.

The government argued that the required review had been carried out between July and October 2013 as part of its consultation 'Reforming Mesothelioma Claims'.

Giving his judgment, the Honourable Mr Justice Williams said: "The question I have to answer is simple: did the Lord Chancellor carry out a proper review of the likely effects of the LASPO reforms on mesothelioma claims as section 48 required him to? I conclude that he did not. No reasonable Lord Chancellor faced with the duty imposed on him by section 48 of the Act would have considered that the exercise in fact carried out fulfilled that duty. This is not a case in which the procedural failure was minor or technical in nature."

Secret deal

The Association of British Insurers (ABI) had intervened in the action in support of the government, who relied on statistical evidence, which the claimant argued to be flawed and unreliable.

During the hearing, Harminder Bains, a partner at Leigh Day who represented the claimant, referred to a secret document and deal between the government and the ABI that would introduce legislation which would benefit the insurance industry at the expense of mesothelioma sufferers.

Bains said: "It was obvious that the proposals would have a devastating effect, and cause great injustice to victims of mesothelioma. It would have reduced the compensation payments to many, and in some instances, it would have prevented some victims of mesothelioma from recovering any compensation at all."

Following the judgment, shadow justice minister Andy Slaughter commented: "Mesothelioma is a horrific industrial disease. Its victims deserve better than the shameful way this government has treated them. Instead of honouring their commitments, David Cameron and Chris Grayling have wasted thousands of pounds of taxpayers' money on expensive lawyers to dodge justice. Hardly a week goes by without the High Court finding the Lord Chancellor has acted unlawfully in driving through cuts in legal services for the most vulnerable groups in society."

New approach

Tony Whitston, chair of the UK wide Forum of Asbestos Support Groups, called on the government to "see this judgment as an opportunity to take a new approach based on justice for victims and not the profits for big financial institutions.

"The old plans were rooted in a culture of secret deals with insurers and flawed consultations, which excluded the victims of asbestos. Now is the time for a change."

Commenting on the High Court judgment, James Dalton, head of motor and liability at the ABI said: "The ABI is frustrated by this development which delays long overdue reform of the legal system for mesothelioma sufferers.

"As a result, the legal costs of mesothelioma claims in England and Wales remain disproportionately high and claimant lawyers need to answer why they do not support lowering these costs and getting more compensation to mesothelioma sufferers.

"Insurers remain committed to compensating mesothelioma sufferers as quickly as possible, and the government now needs to review without delay the application of the LASPO reforms to mesothelioma claims."

 

'Paying the ultimate price'

Adrian Budgen, head of asbestos-related disease litigation at Irwin Mitchell

"Every person diagnosed with mesothelioma has already paid the ultimate price, most often as a result of the negligence of their employer. So, to see them potentially face losing a significant part of the vital funds they and their family receive to cover care and support costs is just unthinkable and many victims would be put off making a claim thus denying them access to justice.

"We believe, and the High Court has now agreed, that if the government wants to introduce a system which operates in the best interests of victims of mesothelioma, they need to ensure that they review the impact of the recent reforms and ask for and listen to the views of victims in future.

"We are pleased to see that the judge has recognised that further review is needed before any changes are made to mesothelioma claims. It is now important that any review only takes place after sufficient time has elapsed for the LASPO changes in non-mesothelioma cases to be properly assessed."

 

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