High Court blocks abolition of recoverability in mesothelioma cases

Chris Grayling

Grayling: Ruling follows row over ‘secret deal’

The High Court has ruled that the government cannot go ahead with abolishing recoverability of success fees and insurance premiums in mesothelioma cases this autumn because it failed to carry out a proper review of the impact on victims.

Mr Justice Davis ruled yesterday that the government’s decision in December last year to implement sections 44 and 46 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) must be set aside and a new review carried out, as required by section 48 of the Act.

The High Court ruling follows a demand from MPs on the justice select committee that the Lord Chancellor, Chris Grayling, carry out a second review after a row over a ‘secret deal’ between the government and insurance industry.

The judicial review was brought by Tony Whitston, chairman of the Asbestos Victims Support Groups Forum UK.

Delivering judgment in R (on the application of Whitston) v the Secretary of State for Justice [2014] EWHC 3044 (Admin), Davis J said his reading of the select committee’s report had not influenced his decision.

Davis J said the government launched a consultation exercise on the handling of mesothelioma claims in December 2012, and said that the review would be carried out as part of the exercise.

However, the judge said that this was concerned principally with reforms to procedure through the introduction of a pre-action protocol and fixed costs regime and described the attempted review as an “adjunct”.

Davis J said: “No reasonable Lord Chancellor faced with the duty imposed on him by section 48 of the Act would have considered that the exercise in fact carried out fulfilled that duty.

“I do not find that a consultation exercise per se was an inappropriate means of fulfilling the duty. Rather, the nature of this consultation meant that it did not permit the Lord Chancellor to do so.”

Mr Justice Davis said he “could not possibly” share the view of the interested party, the Association of British Insurers (ABI), that no relief should be given because the government’s failings “could not have made any conceivable difference to the outcome”.

He responded by saying that “this was not a case in which the procedural failing was minor or technical in nature”.

Davis J concluded: “It follows that it is not for me to set out the form of the review that will be required if the Lord Chancellor is to fulfil his duty under that section.

“My task has been to identify whether what happened did satisfy the requirement under section 48.  Having done so, it is now for the Lord Chancellor to carry out a proper review of the likely effects of the LASPO reforms in whatever manner he concludes will permit him reasonably to achieve the required purpose.”

A Ministry of Justice spokesperson said: “Mesothelioma is an awful condition which can destroy lives in a frighteningly short amount of time, and we want to help sufferers and their families. We are committed to finding the best way to get claims settled fairly and quickly.

“It remains our view that the Ministry of Justice review of this issue was conducted fully and openly and we are disappointed with this judgment. We will now consider our next steps.”

Richard Stein, the partner at Leigh Day who acted for the claimant, said: “[The] judgment should send a clear message to the government that it has to conform with the laws of the land and cannot ride roughshod over the interests of mesothelioma sufferers and their families to benefit the insurance industry.”

Mr Whitston called on the government to “see this judgment as an opportunity to take a new approach based on justice for victims and not the profits of big financial institutions. The old plans were rooted in a culture of secret deals with insurers and flawed consultations, which excluded the victims of asbestos. Now is the time for a change”.


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