Court rejects JR over LASPO post-implementation review

Bains: How much can we rely on public ministerial promises?

The High Court has rejected a judicial review that argued the Ministry of Justice (MoJ) failed to carry out an adequate review of the impact of the LASPO reforms on those with asbestos-related diseases.

The joint ruling of Lord Justice Bean and Mr Justice Martin Spencer said MoJ officials had been entitled to come to the view that the evidence supplied to them was insufficient to demand reform.

The Asbestos Victims Support Groups’ Forum UK and its solicitors, Leigh Day, argued during the post-implementation review (PIR) of part 2 of LASPO that the carve-out for mesothelioma cases in section 48 should have been extended to all asbestos-related diseases.

It said asbestos victims were experiencing deductions from their compensation that did not happen before the reforms and that victims with meritorious cases were being deterred from seeking justice.

In February 2019, the MoJ published the PIR, which said the reforms had “on balance” achieved their goals and no major changes were required.

The PIR process began in October 2017 with a post-legislative memorandum published by the then Lord Chancellor, David Lidington.

This said the PIR would look at the reforms “from an analytical perspective, in the manner of an impact assessment”, and provide “a more thorough and substantive analysis” than the high-level assessment contained in the memorandum.

The judges said: “It may perhaps be noted that this was a statement of intention rather than a promise, although it has certainly been interpreted as a promise by the claimant.”

The forum’s JR argued that the MoJ had failed to discharge its obligation to carry out an adequate review of the impact of part 2, and challenged the decision not to make any changes to the law as a result.

However, before the court, only the first argument was pursued. The judges said this concession was right: “The present case is not, and could not be, a rationality challenge. It is not the proper function of a court to say that it is unlawful for a minister not to introduce legislation to amend an existing primary statute.”

They went on to rule that the memorandum did not “come close to establishing a substantive legitimate expectation on the part of the claimant that there would be detailed consideration in the PIR of the alleged adverse effects of LASPO part 2 on access to justice by claimants with non-mesothelioma asbestos-related diseases”.

There was not a “clear and unambiguous promise” to this effect, and the failure to deal with the concerns raised by the forum and Leigh Day – which were mentioned only briefly in the PIR – “was not equivalent in any sense to a breach of contract or breach of representation”.

It could also not be described as “unfairness amounting to an abuse of power”.

The court found no failure “to engage conscientiously” either – there was “quite extensive consultation”, including a between the forum and MoJ officials.

The officials were entitled to take the view that the data the forum and Leigh Day supplied on asbestos-related diseases “did not amount to a sufficient body of evidence that LASPO part 2 had seriously restricted access to justice”.

They were not obliged to set out that view in the PIR, “any more than they were obliged to set out and deal with any other particular response to the PIR consultation”.

Though such claims were often “tragic cases”, the court said, “they are not the only type of personal injury litigation where entirely blameless claimants face great difficulties in obtaining compensation for their injuries.

“The PIR is a broad-brush document addressed to the justice select committee dealing with some of the major themes of LASPO… its failure to go into greater detail was not so unfair as to be unlawful.”

The court refused permission to appeal.

Speaking on behalf of the forum, Joanne Gordon said that, at the hearing, the Divisional Court “appeared to accept” that if the government had made a promise of the type the forum contended, then it had not been discharged.

“Yet the claim has failed because the court has found there was no such commitment or enforceable promise made by the government despite the wording of the memorandum and despite the Lord Chancellor’s own acknowledgment that he had at least committed himself to carry out some kind of thorough post implementation review.

“If ministerial promises of the kind which were made in this case are not upheld, then public confidence in democratic accountability is undermined.”

Leigh Day partner Harminder Bains added: “This case raises major issues of general public importance regarding the reliance that can be placed upon public ministerial promises.”

Earlier this year, the High Court rejected a challenge to the MoJ failure to extend qualified one-way costs shifting (QOCS) to discrimination claims in the county court.

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