Page 14 - PIC Magazine Autumn Issue 16

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Asbestos Disease Sufferers versus LASPO
Harminder Bains, Partner and Joint Head of the Asbestos and Mesothelioma Team at Leigh Day Solicitors reports.
In 1995 Conditional Fee Agreements (CFA’s) became lawful and the success fee and ATE premium was paid by the Claimant. After a few years due to the injustices caused by this, the then
Lord Chancellor Lord Irvine issued a consultation in 1998. The consultation considered whether the insurance premium and the success fee should be recovered against the losing party.
fter much consultation with the insurance industry, the Access to Justice Act 1999 was enacted. The Government decided to extend the use of CFA’s by abolishing Legal Aid for almost all personal injury litigation. One of the main objections to this
Some suspected that the Government’s decision was based on a “secret deal” having been made between it and the ABI. It was believed that the ABI and the Government agreed that there would be a lifting of the Section 48 exemption to fund the Diffuse Mesothelioma Payment Scheme.
had been that, Legally Aided personal injury clients, who had the benefit of Legal Aid for their personal injury litigation suffered little or no deduction from their compensation by way of contribution to fees. If they were forced to use CFA’s they would end up paying success fees and premiums out of their compensation. Lord Irvine’s solution was to enact the Access to Justice Act 1999 which allowed the successful party to recover the cost of the success fee
and the ATE premium from the losing party.
In effect, the Government was transferring the cost of providing assistance to victims of injury in bringing injury cases, from the taxpayer to the losing party’s insurers.
Incensed by the additional financial burden, the insurance industry constantly made challenges to CFA’s and argued that even single minor breaches voided the CFA thus preventing their liability to pay.
In 2004 the Civil Justice Council (CJC) commenced mediations. Data was obtained from interested parties. As a result of the mediations the CJC Annual Report 2005 announced that
an “industry agreement” on levels of success fees in asbestos cases had been reached. This agreement worked well, until, Lord Justice Jackson commenced a review in December
2009, which resulted in the LASPO 2012. It had
a dramatic impact on the provision of Legal Aid and how legal costs are paid in asbestos disease cases. It allowed up to 25% of asbestos disease sufferer’s compensation to be paid for legal costs, in addition to the ATE premium.
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