Justice for asbestos victims moves forward

Landman: lessons from Wales

Posted by Robert Landman, CEO of Litigation Futures sponsor Spencers Solicitors 

In early December, I wrote about the new HMRC policy doing nothing but stifle access to justice for asbestos victims. And my opinions on that side of things still hold true.

However, since the post went live, there have been significant steps forward in this legal space.

This month saw the opening to debates in the House of Commons regarding the Mesothelioma Bill, and points very similar to mine were raised by the Labour MP Kate Green. In a letter to the Exchequer Secretary, Ms Green requested clarification of the factors driving the new HMRC policy change, and further details on any impact assessments done pre its introduction.

Unfortunately there had been no response to the letter at the time of the debate; however, it was declared that Ministry of Justice officials have been meeting with the Treasury to discuss the matter. I can only interpret this response as positive and I look forward to hearing any further updates.

Improved legal process for UK asbestos claims

On 4 December, courts minister Shailesh Vara announced new plans to “improve the legal process for handling claims from victims of mesothelioma”.

His announcement followed a government U-turn on proposals to introduce an insurer-designed protocol known as the mesothelioma pre-action protocol (MPAP). This was a proposed substitute for the existing pre-action protocol for disease and illness claims (DPAP), designed by the Association of British insurers to help streamline out-of-court settlements.

After reviewing the MPAP consultation in depth, the government decided not to go ahead and implement the protocol. John Spencer has emphasised that the “devil was in the detail” and it became apparent that with the MPAP in place, asbestos sufferers would receive less compensation than they deserved.

With the MPAP cast aside, the government is focusing on how to realistically improve the asbestos claims process. And part of the plan is to introduce a pool of £350m, which will help pay compensation to mesothelioma sufferers, who contracted the disease but cannot trace the responsible employer/insurer.

The pool will be funded by insurers and the Department for Work and Pensions.

Still, there is cause for concern. As John says: “[Asbestos sufferer] claims need to be settled as quickly as possible, for their sake and that of their families. And so, as much as we should welcome this particular U-turn, let’s hope it doesn’t lead to a cul-de-sac, and that the best possible means of giving redress to mesothelioma claimants is put in place as soon as possible.”

Further to John’s apprehension, the Association of Personal Injury Lawyers has taken a cautious stance after Mr Vara also announced changes to no win no fee asbestos claims.

Basically, these will be brought in line with road accident cases – meaning that controversial rules implemented by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) will now apply to mesothelioma claims.

This could mean a lawyer’s success fee would be taken directly from the victim’s. That fee could be up to 25% of their total damages, though some lawyers will take a lower percentage. In turn, there is a worry that this could lead to victims ‘shopping around’ for the cheapest lawyer.

This point was raised by Labour MP Paul Goggins, at the same parliamentary debate that I mentioned earlier. The politician is hopeful that Parliament will continue to be against the idea of a fee being taken directly from a sufferer’s compensation award.

A lesson from Wales …

On the night of 20 November, the Welsh Assembly voted in favour of a law to allow the country’s NHS to recover funds for the treatment of those with asbestos exposure – from negligent employers and insurers.

The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill, will be used to cover the extensive cost of treating sufferers of mesothelioma. With the provisions estimated to raise £1m every year, the Welsh NHS will finally be able to comfortably shoulder that cost.

The costs of treating a road accident victim are usually compensated by the guilty driver’s insurer. There is no reason why asbestos cases shouldn’t work in the same way, and so it is hugely positive to see Wales moving in this direction.

It’s overdue – but it’s happening.

Kristy Price goes into more detail on this comparison with road traffic accident claims here. In her piece, she points at the elephant in the room – why is this law only being applied to Wales and not the rest of the UK?

Well, that’s for the politicians to answer but there looks to be positivity on this front emerging in another form…

If you have your own opinions on these changes in law, positive or negative, please have your say in the comments below.

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