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Government Overturns Lords Amendments

Check out these statistics. About 2,000 people in the UK are diagnosed with Mesothelioma each year, and some 60,000 people in Britain will develop mesothelioma over the next decades because of past exposure, and almost 40,000 have died thus far — the highest levels in the world. It can take around 30-40 years to be diagnosed and once diagnosed some sufferers with advanced symptoms have less that 9-12 months to live.

With the above in mind it makes sense that the House of Lords attempted to protect these Claimants from the reforms proposed by Jackson. And whilst we thought there may be a glimmer of hope for these Claimants, the House of Commons has now rejected those amendments so that the Jackson reforms will indeed apply to Industrial Disease claims in the same way as all other personal injury claims. It is difficult to understand the ideology behind the Governments’ refusal to
accept the proposed amendment to the Bill however, in light of the above facts.

Justice Minister, Mr Djanogly, argued that accepting the ‘Lords amendments’ to the Jacksons Reform would ‘create inconsistency and damage the wider goal of [our] reforms – to restore sense to the costs of litigation, which have substantially increased by way of which "no win, no fee’ cases operate, largely to the detriment of the defendants”. Basically, it is all about reducing expenditure and stopping lawyers from receiving "inflated profits”.

In his view, under Jackson, Asbestos Claimants would not be out of pocket from bringing their claim, as damages for future care and losses are protected and general damages are to be increased by 10% with a success fee capped at 25%. Ultimately, the suggestion is that  Claimants will not lose out if they shop around for the best deal on legal fees, and of course it would be up to the lawyer as to whether a success fee will be charged – (but surely, by making law firms compete for legal fees ignores the original policy behind success fees, which was to compensate the lawyers for the cases that they lose?)

Furthermore, given the life expectancy of these sorts of Claimants, I am not sure how much comfort the above reforms will give.  After all, given the seriousness of the illness, is it not a bit much to expect them to shop around for the cheapest deal and how much of this will actually benefit their beneficiaries? Not a lot, I say.

It was suggested by Shadow Justice Minister Andrew Slaughter, that if it is one of main objectives of the Jacksons Reform to reduce costs, then the "obvious way to stop inflated costs” would have been to reduce lawyers’ base costs rather than to take money out of victims damages. "The beneficiaries would be the defendants and their insurers." This argument was strongly opposed  by Mr Djanogly, he argued that the focus of the Reform is not on cutting legal fees but on cutting inflated margins, and not making exemptions for one type of disease. The difficulty I have is that these types of claims are utterly different from road traffic claims. Cases centring on diseases such as asbestosis and mesothelioma are complex and require intensive research before liability is admitted.

Such claims cannot be dealt with by inexperienced litigators, but if they are unable to take them on a ‘no win no fee’ basis without an uplift or a recoverable ATE premium, then ultimately many experienced solicitors will be unable to take on such cases. The potential for injustice, I am afraid, is huge.

Sairha Hussain
Legal Support Advisor
Box Legal Limitied

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