The High Court’s decision to block the abolition of recoverability for mesothelioma claims has denied victims the 10% uplift in damages they would otherwise have received, justice minister Lord Faulks has said.
Responding to a highly critical report on mesothelioma claims published today by the justice select committee, the minister said that, as a result of the court’s decision, cases would be handled on a “pre-LASPO” basis and the claimants would “of course not receive” the uplift.
Shailesh Vara, colleague of Lord Faulks, announced earlier this week that the government would carry out a second review of mesothelioma claims “in due course” before abolishing the recoverability of success fees and insurance premiums.
The justice committee said the government, “perhaps as a consequence of being forced into the concession” of initially excluding mesothelioma claims from Sections 44 and 46 of LASPO, did not prepare the ground for the review required under Section 48 of the Act in a “thorough and even-handed way”.
Referring to what has been described as a “secret deal” between the government and insurers, the select committee said: “The existence of an undisclosed ‘agreement’ between the government and the insurance industry is not conducive to the creation of trust among victims’ representatives, claimant lawyers and others that an opposing viewpoint will be heard.
“The haste with which the government embarked on a review and consultation, and the way in which it presented them, left those who favoured retention of the LASPO exemption for mesothelioma potentially disadvantaged in terms of marshalling a persuasive case.”
The select committee recommended that a further consultation, to which the government has now agreed, should “be framed unambiguously and centrally on the question of whether the LASPO provisions should be brought into effect for mesothelioma”.
It said the consultation should be “informed by an updated cost-benefit analysis” and “should not be undertaken until sufficient time has elapsed for the effects of the LASPO changes in non-mesothelioma cases to be assessed”.
The committee added: “All who are involved in formulating policy on mesothelioma claims, and in handling them within the legal process, are acutely aware of the profoundly distressing circumstances in which mesothelioma sufferers find themselves, in most cases as a result of the negligence of a past employer or employers.
“That shared awareness plainly does not translate into practical consensus on the best mechanisms to apply to ensure that claims are dealt with swiftly and fairly. Indeed, we cannot recall any subject into which we have inquired on which there has been such a pronounced binary division of opinion and approach.”
Mr Justice Davis ruled in October that the government could not go ahead with abolishing recoverability of success fees and insurance premiums in mesothelioma cases because it had failed to carry out a proper review of the impact on victims.