Page 15 - PIC Magazine Autumn Issue 16

Section 48 exemption from LASPO 2012
Much debate ensued in Parliament and many argued that asbestos disease sufferers should be exempted and eventually a Section 48 exemption, was obtained for sufferers of mesothelioma, as the Government accepted there was a “special case”.
Inexplicably, on 4th December 2013, only six months after announcing this exemption the Government announced that it would now proceed to remove the Section 48 exemption from LASPO 2012.
The Asbestos Victims Support Groups Forum UK (the Forum) commenced a Judicial Review on 3rd March 2014 represented by Harminder Bains. The Forum argued that the Government had a statutory obligation to carry out a review into the “likely effect” of the abolition
of recoverability of success fees and the ATE insurance premium from the losing party and not to bring
in such provisions until the Lord Chancellor had published a report on the conclusion on the review. The Association of British Insurers (ABI) intervened in the Judicial Review proceedings as it supported the Government. 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, introduced by the Mesothelioma Act in 2014. These concerns were justified when as a result of the Justice Select’s Committee’s investigation on the 13th May 2014, James Dalton on behalf of the ABI was forced
to provide a copy of the “secret agreement” entitled “Mesothelioma Heads of Agreement between Her Majesty’s Government and the Association of British Insurers dated 13th July 2012”. It stated that “this document is confidential and remains the property of the ABI. Neither
the contents of this paper nor the document itself may be disclosed
to a third party including under
a request under the Freedom of Information Act without prior written consent from the ABI”.
On 2nd October 2014 William Davis J gave judgment in the Forum’s
Judicial Review. He agreed with the Forum in that the Government had not conducted a proper review of the “likely effect” of LASPO. He found that the Lord Chancellor had acted “unlawfully”. Therefore, mesothelioma Claimant’s success fees and ATE premiums are continued to be paid by the losing party.
On 30th October 2017 the then Lord Chancellor David Lidington presented a post-legislative memorandum to the Justice Select Committee which stated “the content and purpose of a post-implementation review is different to a post-legislative memorandum; post-implementation reviews are primarily concerned with assessing the reforms from an analytical perspective, in the manner of an impact assessment, rather than reporting certain elements of the Act’s implementation and operation. As such, the analysis provided in the preliminary assessment sections of this memorandum is at a high level. The Ministry of Justice intends to undertake a more thorough and substantive analysis in the post-implementation review”.
However, when the post-implementation review of the effect of LASPO was published on the 7th February 2019 it confirmed that there would be “no change” in respect of the effects on LASPO regarding any cases including those with asbestosis, pleural thickening and lung cancer. The Forum found this decision indefensible considering the effect of LASPO on victims of these diseases. The Forum instructed Harminder Bains to commence a Judicial Review and it argued that the review published on 7th February 2019 had not discharged the Lord Chancellor’s obligation to carry out a “thorough and detailed impact assessment” of the LASPO reforms with regard to asbestos related disease sufferers.
Sadly, the Forum did not succeed, as the Judgment on 31st July 2020 confirmed 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.
As a consequence of the judgment the Forum has made an application for permission to appeal to the Court of Appeal and is awaiting the decision.
Harminder Bains, Partner and Joint Head of the Asbestos and Mesothelioma Team.
On the 1st August 2014 the Justice Select Committee published
its report and criticised the Government over its approach to compensation for victims of mesothelioma. It said the Government’s approach had been “maladroit” and a promised review to the effects of LASPO had not been conducted in an even-handed manner.
The Committee stated “we are concerned that the Government had not been transparent or open either with us or other interested parties about the fact that its overall policy in relation to mesothelioma has been shaped in accordance with an agreement however informal
and elastic which it had reached with employer’s liability insurers.
It is hard to see how a balanced and informed public debate can take place where a prior agreement has been reached between two of the principal parties to that debate and that agreement is not known to other participating in the debate including victims”.
www.pic.legal Autumn 2020
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