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Judgment confirms government's commitment to review LASPO is not enforceable

​A judgment given by the High Court today found that the Lord Chancellor was under no legal obligation to carry out a review of the impact of the Legal Aid Sentencing and Punishment of Offenders Act 2012 reforms despite the clear commitments given by the government to do so.

Posted on 31 July 2020

The judgment follows a judicial review claim brought by the Asbestos Victims Support Groups Forum represented by Leigh Day, challenging the quality of the Post-Implementation Review carried out by the government.
The Forum’s case was that the Post-Implementation Review published on 7 February 2019 had not discharged the Lord Chancellor’s obligation to carry out a thorough and detailed impact assessment of the LASPO reforms with regard to asbestos related disease sufferers.
The LASPO reforms adversely impact this cohort of claims in ways which are significantly worse than in more standard Personal Injury claims for reasons identified by the Forum, APIL, and the Law Society.
As a result, Claimants receive substantially less than full compensation in respect of their injuries, and therefore are prevented from accessing justice.
Today’s Judgment confirmed the Court found that there was not a clear and unambiguous promise of any kind to deal with the effect of LASPO.  This was despite the fact the Lord Chancellor had accepted there was a clearly expressed intention that the Post-Implementation Review would assess the LASPO reforms. 
The Court was provided with statements from the Forum, solicitors, QCs and Dr Robin Rudd setting out clearly the devastating impact the LASPO reforms have had on access to justice. 
In addition Lord Alton who took part in the debates in Parliament in 2012 also provided evidence as follows:
“One of the purposes of the implementation review, which I am informed was promised to be in the nature of an impact assessment (see Legal Aid Sentencing and Punishment of Offenders Act 2012:  Post Legislative Memorandum (Cm 9468, October 2017)) necessarily must have been to assess whether the legitimate concerns raised about asbestos sufferers (and those suffering from related industrial respiratory diseases) losing 25 per cent of their damages, and being denied access to justice because of difficulties in finding solicitors to accept their cases, had proved to be true.” 
Joanne Gordon on behalf of the Forum said:

“This is a difficult decision to digest.  The Forum had relied on clear statements made by the Government in the Post Legislative Memorandum to argue that there was an enforceable commitment for a thorough and detailed review in the nature of an impact assessment of the effect on LASPO on specific categories of case e.g. Asbestos Related Disease claims.

“At the hearing the Divisional Court appeared to accept the Forum’s argument that if that was the nature of the promise, then it had not been discharged.

“Yet the claim has failed because the Court has found there was no such commitment or enforceable promise made by the Government despite the wording of the Memorandum and despite the Lord Chancellor’s own acknowledgment that he had at least committed himself to carry out some kind of thorough post implementation review.

“If ministerial promises of the kind which were made in this case are not upheld, then public confidence in democratic accountability is undermined.”

Leigh Day Partner Harminder Bains said:

“This case raises major issues of general public importance regarding the reliance that can be placed upon public ministerial promises.

“From the Forum’s point of view it rather defeats the purpose of conducting Post-Implementation Review at all, if the detailed response they made identifying disproportionate effects on access to justice for Asbestos Related Disease claims, is not properly engaged with or investigated or responded to by the Government.”

Lawyers representing the Forum are Harminder Bains and Jamie Beagent, Partners at Leigh Day with Jeremy Hyam QC and Alasdair Henderson of One Crown Office Row.