The High Court is this week hearing a judicial review that claimant lawyers hope will strike down the deeply unpopular policy of HM Revenue & Customs that means it will only release the employment history of a mesothelioma victim to their lawyer with a High Court order.
HMRC has brought the judicial review against the Liverpool coroner, and the Association of Personal Injury Lawyers (APIL) has been granted permission to intervene.
HMRC issued proceedings asking the Administrative Court to quash a notice issued by the coroner under the Coroners and Justice Act requiring HMRC to produce a work history in connection with a mesothelioma inquest he was conducting.
APIL president Matthew Stockwell, a barrister at Liverpool chambers St Johns Buildings, is representing the association pro bono, and is seeking to outline the wider ramifications of the action for those with fatal industrial disease claims.
The records are a crucial part of the investigative stage of a mesothelioma claim to establish all the places where the deceased person worked. HMRC argues that it is prevented from releasing them because of the Data Protection Act 1998.
In a separate action, APIL has also been granted permission to be heard in an application before Master McCloud in May where she will hear argument on the court’s jurisdiction to make a simple pre-action order for disclosure.
If she decides the court has no jurisdiction to do so, she will consider whether it is reasonable to disclose within the meaning of the Data Protection Act and/or what powers the court has in relation to disclosure for the administration of the estate, and if so whether to exercise those powers.
The news comes a week after the government formally published its response on improving the compensation claims process for mesothelioma victims. This confirmed the announcement made in December that the Ministry of Justice had scrapped plans to impose an insurance industry-devised mesothelioma pre-action protocol and the fixed recoverable costs regime that underpinned it.
However, it also decided to end the recoverability of additional liabilities in mesothelioma cases from July. It argued last week that the criteria in section 48 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 that had first to be met – that the government carry out a review of the likely effect of the change on mesothelioma claims and publish a report of its conclusions – had now been met.
The response said: “The government is not persuaded that the LASPO provisions should not apply to mesothelioma cases. It does not believe that the case has been made that claimants would generally be worse off, or indeed that their lawyers would be.
“In any event, the requirement of section 48 is that the Lord Chancellor must carry out a review of the likely effect of sections 44 and 46. The government is content that the review… subject to the report being published, is compliant with the requirements of section 48.”
Separately, the Department of Work and Pensions announced last week that payments under the Mesothelioma Act 2014 for victims who cannot trace a liable employer or an employers’ liability insurer, will amount to 80% of average civil damages (£123,000), rather than the 75% (£115,000) that had been proposed, “after making savings in the administration costs of the scheme”.
Around 3,500 victims of the aggressive cancer or their families can apply for compensation from next month and will receive the payment from July, and around 300 applications are expected annually for the first few years.
The compensation figure was set lower than 100% of the level of average civil damages to avoid the risk of insurers – who are paying a levy to fund the scheme – passing the additional costs onto businesses through increased insurance premiums. Last month Labour spokesman Lord McKenzie said he hoped that as the number of claims leveled off, compensation levels would rise to 100%.
The scheme will also pay £7,000 towards legal fees. The applicant will be paid this amount directly with their scheme payment, not to lawyers, and will receive it even if they make the application themselves. During passage of the Act through Parliament, MPs expressed hope that solicitors would not charge the full £7,000.