What next for mesothelioma and Lapso?

In August this year, the House of Commons Justice Committee (HCJC) published a report into the appropriateness of the government's decision to apply LASPO 2012, ss 44 and 46 to mesothelioma claims.

House of Commons Justice Committee

The Committee criticised the timing of the review, which was required by LASPO 2012, s 48, and the decision to combine that review with a much wider ranging review of the treatment of mesothelioma claims generally. There was also concern about heads of agreement for reform of the treatment of mesothelioma claims, reached with representatives of the insurance industry.

The report concluded that the government failed to prepare the review in a thorough and even-handed way. The committee made no finding on whether or not it would be appropriate for ss 44 and 46 to apply to mesothelioma claims simply that the required review was not sufficient.

R (on the application of Whitson) v Secretary of State for Justice

In July of this year, the administrative court heard the case of Whitson. The chairman of the Asbestos Victims Support Groups Forums sought judicial review of the Secretary of State's decision to bring into force ss 44 and 46 of LASPO 2012 for mesothelioma claims. The decision was handed down on 2 October 2014, after the HCJC report.

Mr Justice Davis referred to the HCJC report at paragraph 40 of his judgment, but he specifically stated that the report did not influence his decision. After considering the HCJC report, Mr Justice Davis emailed the parties’ representatives in the following terms:

“As was anticipated on the 1st August 2014 the House of Commons Justice Committee issued its Third Report of the Session 2014-15 entitled Mesothelioma Claims. I have read the report. Many of the issues discussed in the report were raised in the evidence placed before me in the course of the judicial review proceedings and in the submissions made during the hearing on the 29th and 30th July 2014. I do not consider that it is necessary for any party to make further written submissions about the content of the report. As the Committee notes on page 14 of the report it is not its function to adjudicate on the Secretary of State's compliance with the relevant statutory requirement; rather its judgment is a political one. That political judgment may or may not lead to the same result as my judgment on the alleged breach by the Secretary of State of his statutory and public law duty. The report cannot inform my conclusion.”

The court, allowing the application, held that the Secretary of State had not conducted a proper review of the likely effect of the LASPO 2012 reforms on mesothelioma claims, as required by s 48(1) of the Act.

Court considers mesothelioma and recovery of success fees

For further analysis of the case, Harminder Bains, partner and asbestos mesothelioma claims expert at Leigh Day, acted for the Asbestos Victims Support Groups Forum against the government. See the full interview: Court considers mesothelioma and recovery of success fees

What next?

The HCJC recommended that:

• a further consultation should take place on whether the LASPO 2012 provisions should apply to mesothelioma claims
• the consultation should be informed by an updated costs-benefit analysis and should not be undertaken until sufficient time has passed to allow proper assessment of the effects of LASPO 2012 on non-mesothelioma personal injury claims
• an independent review of the risks of success and failure of all mesothelioma claims to inform the setting of a maximum success fee (to be a percentage of costs rather than damages) should take place
• research should be carried out to evaluate trends in the ATE insurance market in relation to personal injury claims since the introduction of LASPO.

It remains to be seen whether the committee recommendations will be followed, but for the time being the application of ss 44 and 46 of LASPO 2012 to mesothelioma claims has been deferred.

Watch this space...

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