The Ministry of Justice (MoJ) came under fire yesterday from MPs over its plan to end the exemption that allows the continuing recoverability of success fees and after-the-event (ATE) insurance in mesothelioma cases.
However, justice minister Shailesh Vara insisted that there is insufficient justification for mesothelioma cases being treated in a different way from other serious personal injury and fatal claims.
Under section 48 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), recoverability cannot come to an end for mesothelioma cases before the MoJ has carried out a review of the likely effect and published a report.
Last summer the MoJ consulted on changes to the way mesothelioma cases are run, and asked if – as a result of those reforms, the 10% increase in general damages and also the separate Mesothelioma Bill – the exemption should come to an end. In his announcement last month on the outcome of the consultation, Mr Vara said it would do this July.
In a Westminster Hall debate secured by Labour MP and former claimant solicitor Andy McDonald, MPs from all sides of the House hit out at the move.
Mr McDonald argued that no case had been made for changing the position. He said: “To have introduced a new regime in April 2013 with the exceptions, and then to consult on whether the exceptions should still apply, alongside a whole host of other matters in relation to mesothelioma claims, in July 2013 was simply ludicrous.
“There were just three months between the introduction of the new regime in April and the July review; that was simply far too soon for any proper assessment to have been made of the likely effects of sections 44 and 46 [banning the recoverability of success fees and ATE respectively] on mesothelioma claims. No one can tell at this stage how much clients will be charged by solicitors under LASPO. The situation is developing as the market adapts.
“The same can be said of the cost of ATE insurance. The government are jumping the gun. They need to pause and commit to a genuine process of review.”
Mr McDonald predicted that without success fees, “some cases that should run will not, as they will be too risky”.
“Removal of the exception will result either in those cases not running, or in mesothelioma victims having to pay out of their compensation. That was clearly not the intention of Parliament, and I urge the government to reconsider.”
He was supported by Conservative Tracey Crouch – who said the MoJ had made a “bad decision” – and Nigel Dodds of the DUP, as well as fellow Labour MP Ian Lavery and shadow justice spokesman Andy Slaughter.
Ms Crouch said: “An individual who contracted mesothelioma because they worked in industry, worked in a dockyard or lagged a ship has to navigate through a minefield of complex case law, and they need specialist legal help. It is not fair that they should be punished by sections 44 and 46 of LASPO when they receive such help.”
The MPs criticised the MoJ for not publishing a report and also for linking the change to the Mesothelioma Bill, which deals with claims by victims who cannot trace their insurer.
Mr Vara said the required report would be published – declaring that “the government are satisfied that it meets our obligations under section 48” – and that the link with the bill was to do with timing and bringing the different reforms in together this summer.
He said: “The government have carefully considered the likely effect of implementing the LASPO reforms on mesothelioma claims, including the evidence put before us by respondents to the consultation. The issues raised, however, were generally similar to those in other very serious personal injury cases to which the reforms already apply.
“There was little explanation of any particular feature of the mesothelioma claims process that would lead to a different or disproportionate effect on claimants’ access to justice, should the reforms apply.
“Ultimately, in our view, there needs to be a specific justification for the continued difference in treatment between mesothelioma cases and other personal injury cases – most particularly, other serious personal injury cases that have their own tragic features involving, as some do, catastrophic injury and the need for substantial care arrangements for the remainder of a claimant’s life, sometimes when the claimant is very young.”
Speaking after the debate, Matthew Stockwell, president of the Association of Personal Injury Lawyers, said: “It’s impossible to rationalise why dying people should have to pay for the inherent risks of pursuing redress, when they certainly never asked to be in a position where they need compensation.
“Mesothelioma claimants know they are going to die, and they know they have to race against the clock when they make a claim. They are simply trying to make their last few months more bearable, and to ensure that their families will have some security when they’re gone. If ever a claimant needed full compensation, it is surely the claimant facing a death sentence just because he turned up for work.”