High Court hears legal challenge from Asbestos Victims Support Groups Forum UK
A new law called the Legal Aid, Sentencing & Punishment of Offenders Act 2012 (LASPO) came into force in 2013. It had a dramatic impact on the provision of Legal Aid and how legal costs are paid in a wide range of cases including asbestos disease cases. It meant that up to 25% of asbestos disease sufferer’s compensation could be paid to lawyers for legal costs. Prior to this new law, victims of asbestos disease retained 100% of their compensation and the “losing party” paid the legal fees in addition to the compensation. This system worked well.
In 2014 the Asbestos Victims Support Groups Forum (the Forum) represented by Harminder Bains, Partner at Leigh Day brought a legal case against the Government regarding LASPO. The Forum argued that by including victims of mesothelioma without a review of the likely effects on mesothelioma victims, the Government were acting “unlawfully”. The Forum “won” that case. This meant that mesothelioma sufferers to this day retain 100% of their compensation and in addition the legal fees are paid by the losing party.
However, victims of other asbestos diseases including asbestosis, pleural thickening and lung cancer still may pay up to 25% of their compensation in respect of legal costs. This therefore reduces their compensation or may prevent victims from proceeding with their case.
The Government carried out a post-implementation review of the effect of LASPO which was published on 7th February 2019. The review confirmed that there would be “no change” in respect of the effects on LASPO regarding any cases including those of asbestosis, pleural thickening and lung cancer. The Forum found this decision indefensible considering the effect on victims of other asbestos diseases. As a result, the Forum commenced a legal action, called a “Judicial Review”, in the High Court in London and argued that the Lord Chancellor’s obligation to carry out a thorough and detailed impact assessment of the reforms with regard to asbestos related disease sufferers had not been discharged. It gave evidence that the LASPO reforms had adversely impacted on asbestos disease sufferers in ways which were significantly worse than in normal standard personal injury claims. As a result asbestos disease sufferers received less than full compensation and were therefore prevented from accessing justice.
Sadly, the Forum did not win the argument and the High Court handed down a Judgment on 31st July 2020 confirming that 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 Forum had provided the Court with a statement together with statements from solicitors, QCs, Dr. Robin Rudd and Lord Alton who had taken part in the debates in Parliament in 2012. Part of Lord Alton’s evidence was 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.”
As a consequence of the Judgment the Forum has made an application for permission to appeal to the Court of Appeal and is awaiting a decision.
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.