The Civil Justice Council (CJC) has questioned the need for the government’s reforms to mesothelioma claims, saying “we are not persuaded that the present system is not working reasonably satisfactorily”.
Members of the CJC were also unable to agree on whether the government consultation, and in due course its response, fulfil the conditions in section 48 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 as the necessary pre-cursors to end recoverability for mesothelioma claims.
The CJC response to the Ministry of Justice’s Reforming mesothelioma claims consultation said the current disease pre-action protocol had to be seen in tandem with the “very efficient” expedited procedure run by Senior Master Whitaker in the Royal Courts of Justice.
“We have seen no evidence that the procedure… is not working well in the claims to which it applies,” the CJC said.
Some CJC members, it continued, “are not convinced that the present proposals will necessarily lead to reductions in the total time spent in resolving such cases. In addition, there is a concern that procedural reform advocated in the consultation appears to be optional (which is to say nothing of the merits or otherwise of the detailed measures)”.
The council also described as “unfortunate” that proposals from a single stakeholder group – the Association of British Insurers (ABI) – “have been put, without apparent amendment, to consultation”.
It explained: “Some might draw unhelpful inferences from that, which seems to us regrettable given the seriousness of the underlying claims here and given the obvious effort – albeit in one quarter – involved in preparing a draft MPAP [mesothelioma pre-action protocol]…
“While the ABI has clearly invested significant time and effort in drawing up the MPAP included for consultation, the government (and in turn the rule committee, should some form of an MPAP be implemented) will need to ensure that it takes a fully balanced view of any protocol’s requirements and provisions, having due regard to consultation comments from across the spectrum of interested stakeholders.”
The CJC was also split over whether a dedicated MPAP would address any problems of delay.
The CJC response endorsed the introduction of fixed recoverable costs (FRCs) for both sides, but warned of a “potential credibility problem” for the government in gaining support from the claimant lobby given their view that the new portal fixed costs were set too low.
It also questioned whether July 2014 was too soon to introduce them. “While certain CJC members thought that it would be achievable to introduce FRCs during the next nine months, others took the view that FRCs could be introduced after any procedural changes take place, when the amount of legal work required could be more accurately assessed.”
Of the three options for the design of FRCs, the CJC supported multiple flat fees or variable fees –under which there would be a set of flat fees for different groups of mesothelioma claims, or alternatively a FRC scheme with variable element(s) on top of a lower base flat fee or staged fee.
Section 48 requires that before sections 44 and 46 – ending recoverability of success fees and after-the-event insurance premiums – are brought into force, the Lord Chancellor must carry out a review of the likely effect and publish a report of the conclusions of the review.
“Council members hold divergent views on whether the current consultation amounts to [this] review,” the CJC said.