Judicial review cases are not the usual fare of this website. However, R (on the Application of The Asbestos Victims Support Groups’ Forum UK) v Lord Chancellor  EWHC 2108 (Admin) is a case of interest to industrial disease specialists.
The complaint in this case flows from the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Clearly, that Act significantly affected the way personal injury claims are funded. Importantly for this case, restrictions were introduced on the recovery of conditional fee agreement uplifts and ATE insurance from defendants.
Relevant parts of section 44 and section 46 of LASPO provide that:
“Section 44…A costs order made in proceedings may not include provision requiring the payment by one party of all or part of a success fee payable by another party under a conditional fee agreement.”
Section 46…A costs order made in favour of a party to proceedings who has taken out a costs insurance policy may not include provision requiring the payment of an amount in respect of all or part of the premium of the policy, unless such provision is permitted by regulations under subsection (2).”
At the time of implementation, section 48 provided that sections 44 and 46 shall not apply for mesothelioma proceedings.
In fact, section 48 provided that those sections could, in the future, be implemented in relation to mesothelioma proceedings. The steps that the Lord Chancellor would have to take were set out.
The Lord Chancellor did try to do this in 2013 but that was itself judicially reviewed in the case of R (on the application of Tony Whitston) v Secretary of State for Justice  EWHC 3044 (Admin).
Accordingly, sections 44 and 46 still do not apply for mesothelioma cases. However, they do apply for claims in relation to other asbestos related diseases.
The Claim for Judicial Review
At the time of implementation of LASPO there had been much debate as to whether the exception to sections 44 and 46 would apply to all asbestos related disease cases. Ultimately, of course, only mesothelioma cases were included in the section 48 exception. Other asbestos related disease claims are treated in the same way as any other personal injury claim in those regards.
In February 2019 the Lord Chancellor published a Post Implementation Review (PIR) of LASPO. This sought to assess the impact of the reforms and the effectiveness of the legislation.
It was the Claimant’s assertion that the PIR should have carried out a thorough and detailed impact assessment of the reforms with regard to asbestos related disease sufferers, but that the PIR did not in fact do so.
The Basis of the Claim
The substance of the Judgment is heavily seated in judicial review law, which I do not seek to set out. However, it was noted along the way that a number of features of asbestos related diseases are inconsistent with the aims of the LASPO reforms.
It was said that one of the aims of LASPO was to reduce unmeritorious claims. However, it was conceded that asbestos related disease cases were not the type of unmeritorious claims that were sought to be reduced.
It was further noted that with the exception of mesothelioma, other asbestos related diseases are considered divisible. Therefore a claimant may need to bring claims against a number of defendants. Not all those defendants may have insurance cover or be a going concern.
Further, owing to the decision in Cartwright v Venduct Engineering, a claimant may end up paying the costs of those defendants against which he was unsuccessful out of any damages he was awarded. Although not unique to asbestos related disease cases, it was noted that it was a common in these cases.
Other features were noted which are not specific to asbestos related disease, including: solicitors taking a more risk adverse approach since costs are reduced; fewer solicitors specialising in the area for the same reason; claimants now potentially being liable for defendants’ costs; and that there was an effect on the development of the common law owing to only straightforward cases being taken on.
The Judgment is lengthy, but for present purposes it can be set out only briefly. The claim for judicial review was dismissed.
The court found that there was no legitimate expectation of a more thorough assessment in relation to asbestos related diseases within the PIR as had been claimed. The failure to conduct a more thorough assessment could not be described as an unfairness amounting to an abuse of power.
The court also found that the Lord Chancellor had not failed to engage consciously with the issues raised in the consultation.
The court found that the PIR was a broad-brush document to address the Justice Select Committee dealing with some of the major themes of LASPO. Any failure to go into further detail which was not so unfair as to be unlawful.
For now there is no change, therefore, in relation to non-mesothelioma asbestos claims. There does not appear to be any aspiration to extend the section 48 exception to all asbestos related disease cases. Conversely, there was no indication that the exception in relation to mesothelioma is likely to be removed.
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