GOVERNMENT TO CREATE AN UNFAIR PLAYING FIELD IN MESOTHELIOMA CASES?

On the 18th December 2012 the current government announced their intention to pass primary legislation for dealing with mesothelioma claims on a fixed-fee basis. This will limit the amount of costs Claimant lawyers will be able to charge polluting companies and their insurers in successful cases for mesothelioma compensation.

The proposed scheme will be based around the Road Traffic Accident electronic portal scheme model which was thought only to be extended further in respect of Employer’s Liability and Public Liability personal injury claims.  However, the current establishment has now clearly set the agenda to include mesothelioma sufferers within their radical changes which Claimant lawyers believe will restrict access to justice for the most vulnerable people in society.

The Ministry of Justice has confirmed that a consultation will be issued around April of 2013 which will also cover the government’s July agreement. This agreement encompasses an intention to speed up the compensation process for mesothelioma claimants with assistance from the Association of British Insurers (ABI). It will also take into account the necessary review under section 48 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on the effect on mesothelioma claims connected to the proposed change of recoverability of success fees and after the event insurance premiums. We believe the government’s proposed policy to be entirely misguided.

To treat a claim involving the incurable asbestos related condition, mesothelioma, in the same way as a simple Road Traffic Accident claim would be entirely unworkable. Urgent claims involving mesothelioma are by their very nature extremely complex in that they involve circumstances of exposure to asbestos which frequently occurred 30 to 40 years ago. It is often the case that tracing Defendant companies and their insurers can prove difficult and specialist advice is required in order to prepare the evidence. Obtaining such evidence can take time but cases are dealt with as a priority by Claimant firms who fully appreciate that there are negative repercussions for living mesothelioma sufferers who fail to settle their claims during life.

We have regularly settled mesothelioma claims within 60 days of being instructed. This can only be done with specialist knowhow running alongside our professionalism in pursuing such claims with speed and vigour. Completing standard forms on a portal system will not allow for such specialist work to be completed in mesothelioma cases in our considered view.

The new changes present themselves as further evidence of the government listening far too much to the powerful Defendant Insurance lobby at Westminster, whilst disregarding the needs of vulnerable mesothelioma sufferers and their families who require considered, specialist advice in their time of need.

In a written statement to Parliament from the 18th December 2012, justice minister Helen Grant said:-
“The government considers that it is imperative that these claims are settled quickly and that early payment of compensation is made so as to ease sufferings of victims of this dreadful disease and give some assurance that their dependants will be financially secure when they are no longer around. However, this cannot be achieved without a speedy pre-litigation process, which is why the government has decided to consult on how best to reduce delays in these cases”

It remains to be seen what the government defines as “consulting”. It was only in early January 2013 that the government backed down and completed a full U-turn from their proposal to extend the use of the electronic portal system for Employer’s Liability and Public Liability personal injury cases during April of 2013. This was only done after pressure was applied by the Association of Personal Injury Solicitors who filed court proceedings requesting a Judicial Review as a result of the government failing to consult fully and appropriately on the subject. The government has confirmed that a review would take place at a later date this year.

This is yet another example of the government attempting to rail road changes through without consulting fully and appropriately on the various important issues, only to then have to back track due to the very nature of their ill-thought out policies. It is very much hoped that the government will actually consult both sides in respect of such an important, sensitive issue as mesothelioma compensation.

One vital point which will need to be highlighted by specialist mesothelioma solicitors is the glaring omission, assent from the justice minister’s speech. Specifically, a specialist fast-track procedure for dealing with mesothelioma claims is already in operation in England and Wales which is more than effective in assisting mesothelioma sufferers and their loved ones.

Specialist asbestos disease lawyers make use of Senior Master Whitaker’s revered, specialist fast-track procedure in the High Court in London on a daily basis. After proceedings are issued under the procedure, a first hearing takes place on an expedited basis shortly thereafter. This is known as a “show cause” hearing and if at the time of this, the Defendant fails to show cause why the Claimant should not win their case, the Claimant will be successful. Not only that, the Senior Master will then proceed to order the Defendant to pay an interim payment of damages to the mesothelioma claimant or their family of around £50,000.00. The procedure has been extended to be used in the North West of the country, opening the door further ajar to access to justice for mesothelioma claimants.

Quite clearly, procedures are already in place to ensure that mesothelioma cases are advanced swiftly, giving little opportunity for Defendants to delay paying mesothelioma compensation.

If the government’s changes, which will require the passing of primary legislation, do come into force, it will create an unfair playing field for those who have the misfortune of having to pursue a legal claim for mesothelioma compensation. On the one hand, mesothelioma claimants will be restricted to operate within arbitrary fixed costs regimes whilst on the other, Defendants and their insurers will have access to high end legal representation with no restrictions on their own costs.

It is also feared that rather than speed up cases for mesothelioma compensation, the proposed changes could actually slow down the process. It would be entirely open for Defendants to delay and delay in making a decision on whether to pay mesothelioma compensation, in the knowledge that their costs liability to a successful Claimant will not rise due to the fixed fees their instructed legal representatives can charge. They would do so in the hope that eventually, the mesothelioma claimant or their loved ones would back down and accept reduced sums of compensation. This potential imbalance has to be considered and addressed before any changes come into force.

We will keep you informed of any updated developments.