19 December 2012Print This Post

Government plan for mesothelioma claims process draws heavy fire from claimant lawyers

Mesothelioma: needs sensitive case-by-case investigation, says claimant lawyer

Lawyers acting on the new system for dealing with mesothelioma claims will be paid on fixed-fee basis, the government announced yesterday.

There will also be a dedicated pre-action protocol and an electronic portal on which the claims will be registered.

But the plan to automate the process has been strongly criticised by a leading claimant lawyer as an attack on access to justice.

A consultation will be issued in spring 2013, which will cover both the government’s July agreement with the Association of British Insurers to speed up the process of compensating mesothelioma victims, as well as the review required under section 48 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on the effect on mesothelioma cases of the changes to the recoverability.

Mesothelioma is an aggressive and terminal occupational disease with an average life expectancy of less than two years from diagnosis. A claim for compensation can take up to two years to settle which means that sufferers often die before their claims are paid out.

In a written statement to Parliament yesterday, justice minister Helen Grant said: “The government considers that it is imperative that these claims are settled quickly and that early payment of compensation is made so as to ease the sufferings of victims of this dreadful disease and give some assurance that their dependants will be financially secure when they are no longer around.

“However, this cannot be achieved without a speedy pre-litigation process, which is why the government has decided to consult on how best to reduce delays in these cases.”

Stuart Henderson, managing partner of the personal injury department at Irwin Mitchell, reacted angrily to the announcement: “For mesothelioma victims already facing up to their devastating diagnosis, this is dreadful news right before Christmas. It is an attack on access to justice and an attempt to force them down a route in which they would be compelled to accept a fast-track, automated process instead of the sensitive case-by-case investigation they and their families need.

“Yet again, as with its plethora of civil justice reforms, the government has listened too much to the defendant lobby – but this time it is people who are dying who will lose out, which is truly shocking.

“Mesothelioma cases by their very nature are complex, often going back 30 and 40 years and involving detailed investigations. Yet the government’s proposals would yet again force innocent people to work within arbitrary fixed cost regimes while their opponents – those representing the companies which allowed their staff to be exposed to deadly asbestos – would have access to the best legal representation money can buy and no restraints on their costs. That doesn’t represent fairness, which is the principle which should underpin a modern justice system.”

While not denying the importance of speedy justice, Mr Henderson argued that the vast majority of delays are caused by defendant tactics. “This will do nothing to address that and could even hand more power to defendants to delay cases until claimants have no option but to settle for less than their case is worth.”

 

By Neil Rose

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2 Responses to “Government plan for mesothelioma claims process draws heavy fire from claimant lawyers”

  1. The idea of treating mesothelioma cases in this way shows a complete lack of understanding on the part of the government of the way in which each of these cases have to be dealt with. Having dealt with this type of case for many years now I can safely say that I am yet to deal with two cases that can be said to have been the same. Each case has to be handled sensitively and the level of sensitivity differs from case to case. By effectively classing all mesothelioma cases as the “same” and suggesting that a portal type procedure should apply is nothing short of a disgrace. How many more opportunities are defendants to be given to delay matters. Delay after delay will ensue as cases “fall out” of the portal as defendants use any excuse to delay payment. The spectre of Court proceedings forces defendants to adopt a pragmatic stance to these cases as they know that unreasonable delays will lead to proceedings which due to the Practice Directions applicable to these cases often result in “show cause” orders and interim payments. A portal or “pre litigation” procedure will take this sanction away from claimant solicitors thereby depriving us of the ability to pressure defendants into settling cases quickly and at the same time ensuring that the claimant’s best interests are at all times borne in mind. By imposing a fixed costs regime on this type of case the ability to carry out detailed investigations and enquiries will be restricted and the defendants will be in a strong position to try and force vulnerable claimants to under settle their cases with the promise of speedy settlement that will often shortchange a dying claimant, a fact that is clearly benficial to the defendant insurer and their multi national clients. When will the government take into consideration the Claimant point of view and when will the government realise that costs are escalated by Defendant conduct and that it is the Claimants that are entitled to compensation for the harm caused by the negligent Defendants and that a realisation of this by insurers would result in a saving of costs.

  2. Alan Jolliffe on December 20th, 2012 at 11:01 am
  3. Alan Joliffe pretty much said it all. Not that it will do much good.

  4. Bill Willcocks on December 20th, 2012 at 4:48 pm