High court rules LASPO mesothelioma consultation ‘unlawful’

Campaigners from the Asbestos Victims Support Groups Forum successfully argued that the government did not adequately carry out a review of the likely impact of including mesothelioma victims within the reforms in the Legal Aid Sentencing and Punishment of Offenders Act (LASPO), as required by the act.

The forum mounted the judicial review in response to government plans to remove the exemption of mesothelioma compensation from the provisions of LASPO. It would have ended the ability for successful claimants to recover their costs from the losing side – often up to 25%. Before the changes were brought in, Lord Chancellor and secretary of state for justice Chris Grayling was required to carry out a review of its likely impact under section 48 of the act.

“The issue is whether the Lord Chancellor conducted a proper review of the likely effect of the LASPO reforms on mesothelioma claims,” said the Honourable Mr Justice Davis. “I conclude that he did not. No reasonable Lord Chancellor faced with the duty imposed on him by section 48 of the act would have considered that the exercise in fact carried out fulfilled that duty.”

“This is not a case in which the procedural failing was minor or technical in nature,” the judge continued. “Whilst it is clear that the government has a clear view about the merits of applying the LASPO reforms to mesothelioma cases, there has not been a proper review as required by section 48.”

Lawyers for the claimant said yesterday’s judgment, which follows a two-day hearing in July 2014, was a ‘humiliating’ defeat for Grayling.

The ruling follows stern criticism by a committee of MPs who said the government said the government rushed through the review prematurely because it “was not reconciled to the concession it was forced to make”. As a result, it was “not prepared in a thorough and even-handed manner”.

The committee’s short inquiry brought to light controversial documents drawn up between insurers and the government. Victims’ groups said they amounted to a “secret deal” to reduce insurers’ costs once they had established the scheme to help mesothelioma victims who cannot trace an employers’ liability insurer claim compensation.

A heads of agreement document – a non-binding record outlining the main issues relevant to a tentative agreement – was sent to the committee by the Association of British Insurers (ABI), having been drawn up with the government in 2012.

The ABI intervened into the court action in support of the government.

Tony Whitston, chair of the Asbestos Victims Support Groups Forum, called on the government to: “see this judgment as an opportunity to take a new approach based on justice for victims and not the profits of big financial institutions. The old plans were rooted in a culture of secret deals with insurers and flawed consultations, which excluded the victims of asbestos. Now is the time for a change”.

LASPO brought an end to litigants being able to recover their costs and after the event insurance form the losing party across the board. However amendment to the law as it passed through the House of Lords meant that the government would have to carry out a review into the likely effect this would have to mesothelioma claims before it could be introduced – which became section 48 of the act.

On 18 December 2012 – seven months after LASPO received royal assent – Helen Grant, a junior minister at the MoJ, announcement in a written ministerial statement that her department would be launching a consultation on proposals to reform the way in which mesothelioma cases were dealt with both pre-action and after issue of proceedings. She also said that "as part of that consultation we will carry out the review required under section 48”.

Richard Stein from the human rights department at law firm Leigh Day, who represented the forum, said the government is seemingly intent on doing what it is told by the insurance industry “against the best interests of those suffering from the negligent behaviour of the insured”.

“Today’s judgment should send a clear message to the government that it has to conform with the laws of the land and cannot ride roughshod over the interests of mesothelioma sufferers and their families to benefit the insurance industry.”