The Law Society has come out strongly against the introduction of fixed recoverable costs (FRCs) for mesothelioma claims and argued that while a dedicated pre-action protocol (PAP) could be a good idea, the one proposed by the Association of British Insurers and adopted by the government is not.
In a firm response to the government’s consultation on reforming mesothelioma claims, the society said that such cases require the attention of specialist, experienced solicitors on both sides of the claim.
“Introducing fixed recoverable costs is highly likely in practice to lower the grade of fee-earner conducting the work, leading to worse outcomes for the claimant. It is also likely to inhibit the future development of further practitioner specialism in this area.”
It pointed to research conducted by Professor Paul Fenn that concluded all disease cases were inappropriate for the EL/PL protocol and portal, including the fixed-fee regime, because of the wide variance of costs encountered in such cases.”
The society also noted that if the government was confident about the impact of costs management, there should be no need for FRCs in mesothelioma cases.
A better approach to encourage efficient claimant behaviour, it said, was a PAP that provided “substantial and carefully enforced sanctions for non-compliance”.
Chancery Lane said that while “some minor aspects” of the proposed mesothelioma PAP may assist in reducing delay and cost, it does little to address the limitations of the existing disease PAP, while removing key flexibilities in the latter for sufferers swiftly to issue proceedings and take advantage of practice direction 3D (the ‘show cause’ procedure).
The response – drafted by the civil justice committee – also rejected the proposed secure mesothelioma claims gateway, saying that it would be an “additional, unnecessary layer of bureaucracy” – while a portal has benefits in high-volume, low-value areas of litigation, this was not the case here.
There would also be “an enormous conflict of interest” if the gateway was owned and controlled by insurers. If one were to be established despite the society’s objections, it would need to be governed independently or at the very least by a balanced board of all interested parties.
The Law Society rejected the suggestion that the government had done enough to activate the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 that would end recoverability for mesothelioma claims. The Act requires the a review of the likely effect of doing so and the society said this required “comprehensive analysis of the role and prevalence of success fees in mesothelioma claims, detailed consideration on the levels of risk associated with bringing such claims, and forecasting of how this is likely to change over time”.