Coventry and Others v Lawrence and Another  UKSC 46
The Supreme Court hears legal argument over whether the old litigation regime is unlawful
Posted on 11 February 2015
The Asbestos Victims Support Groups Forum UK (the Forum), represented by law firm Leigh Day, were grateful at being granted permission to intervene in this case which is proceeding in the Supreme Court.
The Forum submitted:
- There should be no general declaration of incompatibility in respect of the Access to Justice Act 1999 in relation to ongoing mesothelioma claims covered by that type of CFA (or indeed any asbestos injury claims dating from prior to April 2013 which are still running under such CFAs);
- Those CFAs, in mesothelioma cases in particular and personal injury cases in general, were and are compliant with the ECHR;
- Whether or not CFAs in defamation cases fall within a class which, in light of MGN Ltd v United Kingdom (2011) 53 EHRR 195, are deemed incompatible with a defendant’s Article 10 rights, the reasoning in MGN provides no basis for a finding that personal injury cases, still less mesothelioma cases, also fall within such a class. Any decision in relation to the compatibility of the CFA in this litigation should be carefully confined to the facts of this case; or at the least, not extended to cover the facts of mesothelioma/personal injury cases.
During the hearing, evidence was provided to the court to show that the Coventry case was exceptional.
It concerned a claim for nuisance. It resulted in an 11 day trial and two appeals. Katherine Lawrence and Keith Shields were no longer able to live in their property as a result of persons unknown attacking their property and cars parked there with a forklift truck.
In the course of the attack, the oil tank at the property was damaged causing contamination. And shortly afterwards a fire at the property caused further extensive damage and rendered it inhabitable.
David Coventry was ordered to pay damages and a percentage of the legal costs. He is claiming he cannot afford to pay the success fee and the ATE premium. He claims he does not have any insurance cover in place to cover payment of legal fees.
It was argued that David Coventry and/or his co respondents should have put in place insurance cover to protect their liability for legal fees or, alternatively, should in any event have public liability insurance. It is unclear as to the insurance position.
It is analogous to a car owner not having an insurance policy to cover injury to a third party.
Doug Jewell, the Chair of the Forum, stated: "If Claimants in mesothelioma cases are made liable for additional legal costs, such as success fees and the premiums for After The Event insurance policies, the numbers who do pursue claims for personal injury will decline dramatically.
"This is likely to leave their families at a financial disadvantage and could mean their spouse not only loses a partner but also sees their income slashed. We believe this would be a double injustice."
Harminder Bains from the industrial diseases team at Leigh Day who is representing the Forum explained: "The success fee and the ATE premium claimed in the Coventry case is far in excess of the amounts that are claimed in the majority of cases and the Coventry case should not be taken out of context. Further, if success fees and ATE premiums become recoverable from the claimant and not the defendant, this will place an enormous pressure on mesothelioma sufferers to settle their claims below full value.
"In many cases, it will simply be uneconomic for them to continue to trial, even if they are faced with an inadequate part-36 offer, because of the likelihood that any additional damages they may hope to recover would be wiped out by payment of the ATE premium and the success fee.
"The Forum believes that the additional 10% increase in general damages provided in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 would be a completely inadequate substitute. The implementation of Qualified One Way Costs Shifting to mesothelioma claims would not help matters at all.
"This would not offer protection where the mesothelioma claimant had failed to better a part-36 offer and therefore would not address the primary concern expressed by most sufferers."