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​High Court challenge begins against Government on behalf of asbestos victims

Challenge to decision to use part of mesothelioma compensation for insurance and costs

Royal Courts of Justice

28 July 2014

A High Court challenge will begin on Tuesday 29th July 2014 to the Justice Secretary’s decision to take substantial sums from mesothelioma sufferers’ damages to pay for legal insurance premiums and to contribute to their legal costs.

The Asbestos Victims’ Support Groups Forum UK (the Forum) is challenging the decision by Chris Grayling, the Secretary of State for Justice, to allow cancer sufferers to be charged up to 25% of their awarded damages to pay for their legal costs as well as legal insurance premiums.  These costs were previously paid in all cases by the insurers of those found liable for causing the harm.

Following the introduction, on the 1st April 2013, of the Legal Aid Sentencing and Punishment of Offenders  Act (LASPO), victims of personal injury cases now have to use part of their damages to pay their legal costs and insurance premiums under sections 44 and 46 of the Act.

However, prior to LASPO coming into force the House of Lords insisted that the government exclude claims from people suffering from the asbestos-related cancer mesothelioma from those changes.

The Lords successfully insisted that a statutory obligation (s.48) was included in the Act, which required that before these changes were applied to mesothelioma victims the government would be required to carry out a review of their likely effects on mesothelioma claims, and to publish a report of the findings of the review.

The Forum claims that no such review has taken place.  However the Secretary of State, in a Written Ministerial Statement of the Parliamentary Under-Secretary of State for Justice Shailesh Vara, announced on 4th December 2013 that the Government: "has concluded that it intends to apply sections 44 and 46 of the LASPO Act to mesothelioma cases".

The Government argue that the required review was carried out as part of the consultation ‘Reforming Mesothelioma Claims’ which took place between July and October 2013 and the responses to the consultation.
In its report published on 6th March 2014, resulting from the consultation,  the government concluded that s44 and s46 should now be brought into force.

Leigh Day, the lawyers for the Forum will argue that the decision to apply sections 44 and 46 of LASPO in relation to mesothelioma claims was taken without having carried out a proper review of the likely effects as required by s48 of LASPO and is therefore unlawful.   

The impact of the changes brought about by LASPO could not  have been assessed properly at this stage given that the LASPO reforms only came into force on 1st April 2013.

Richard Stein from the Human Rights Department at law firm Leigh Day said: 

"The clear intention of the legislation imposed by the House of Lords was to require information about the likely effect of LASPO changes to be available as part of any review before they could be imposed on mesothelioma victims.  

"Evidence of the substantial reductions which the LASPO reforms will make on damages recovered by mesothelioma sufferers is starting to emerge.  

"We are asking the court to tell the government that they need to wait until these impacts of the LASPO changes are clear before they act.”

Tony Whitston, the Forum Chair said:

“Mesothelioma sufferers and their families will accept a decision on the imposition of legal costs if it is based on a fair and credible review. 

“The Government’s decision to proceed on the basis of such a flawed review will not be accepted by sufferers or their families and will result in an enduring sense of grievance for years to come.”  

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