Claimant and defendant lawyers cross swords over mesothelioma reform

Tonks: proposals unworkable and unfair

The low costs risk for claimants making mesothelioma claims means they should not longer benefit from an exemption from the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), a leading defendant law firm has argued.

At the same time the Association of Personal Injury Lawyers (APIL) has described the government’s proposals for the reform of mesothelioma claims as a “missed opportunity”.

The consultation, which closed this week, proposed a new mesothelioma pre-action protocol, an electronic claims gateway and fixed costs.

City law firm Kennedys argued that the special legal status afford to mesothelioma victims – which makes the compensation process straight forward and speedy – nullifies the need for their claims to be exempt from LASPO reforms.

It said that although compensation should be paid to “a victim of this terrible disease as soon as possible after diagnosis”, this does not translate into a complex category of personal injury claims.

“Mesothelioma claims are, quite properly, afforded special treatment to ensure prompt settlement and therefore carry lower costs risks than other types of personal injury claim, especially as the only issue at stake in most cases is the level of damages,” the firm said.

“This makes them well suited to a fixed recoverable costs regime with no recoverable success fee or after-the-event insurance premium, in line with the Jackson reforms already in force in almost every other class of litigation.”

Kennedys identified a widespread failure to comply with the current disease pre-action protocol. The firm argued that while it is right to expedite cases where the victim is still alive, an estate claim should be no different from the normal litigation process and any other fatal accidents claim.  Therefore, there should be a costs sanction on estate claimants who litigate without complying with the proposed new mesothelioma pre-action protocol.

The firm suggested that this new protocol and the proposed secure claims gateway are unlikely to make a substantial difference to the existing practice of managing mesothelioma claims.

APIL said the government proposals were “unworkable and unfair”, and influenced by “the insurance industry’s relentless agenda for cutting its own costs”.

Former president Karl Tonks explained: “What dying mesothelioma victims need from the legal process is a protocol which provides them with automatic interim payments; early admissions of liability from culpable defendants and easier access to medical, work and pensions records. Such changes would speed up the conduct of these cases and cut costs in the process.

“The proposal in the consultation to introduce a new protocol to settle more cases out of court sounds like a great idea in principle. But taking cases to the specialist mesothelioma court is usually the only way to persuade defendants and their insurers to admit liability for causing the disease, and to get the claim settled quickly.

“It is also often the only way to obtain early interim payments to help provide some comfort for the victim in his final months, without having to wait for the case to end.”

Mr Tonks said defendants were too slow to admit liability. “By ignoring the way defendants and insurers routinely behave and seeking to impose a new, more rigid system which just plays into their hands, the proposals condemn sick and dying victims to spend their last months wrangling with the very people who have caused their illnesses. Where is the fairness in that?”