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BRIEFING PAPER Number 04450, 3 August 2016

Mesothelioma: civil court claims

By Terry McGuinness

Contents: 1. Introduction: mesothelioma 2. Civil claims 3. The law of negligence 4. Liability of more than one

employer and apportionment 5. Claimants other than employees 6. Legal Aid, Sentencing and

Punishment of Offenders Act 2012: reforms to civil litigation funding

7. The Mesothelioma Act 2014

2 Mesothelioma: civil court claims

Contents Summary 3

1. Introduction: mesothelioma 4

2. Civil claims 5

3. The law of negligence 6

4. Liability of more than one employer and apportionment 8 4.1 The Fairchild exception 8 4.2 Barker v Corus UK plc 9 4.3 The Compensation Act 2006 9 4.4 The Financial Services Compensation Scheme 9 4.5 Subsequent case law 10

5. Claimants other than employees 11

6. Legal Aid, Sentencing and Punishment of Offenders Act 2012: reforms to civil litigation funding 12

6.1 What is a conditional fee agreement? 12 6.2 What changes were made to CFAs by LASPO Act 2012? 12 6.3 How do the LASPO Act 2012 reforms affect mesothelioma claims? 13 6.4 Ministry of Justice proposals 13 6.5 Government decision to implement LASPO Act 2012 provisions for mesothelioma

claims 16 6.6 What happened next? 16

Judicial review of the Lord Chancellor’s decision 16 The Justice Committee’s report 17 The Government response to the Justice Committee’s report 18 Announcement of the review 18

7. The Mesothelioma Act 2014 19

Cover page image copyright Attributed to: Royal Courts of Justice by Joe Dunckleyhttps://www.flickr.com/photos/psteichen/. Licensed under CC BY 2.0 / image cropped.

3 Commons Library Briefing, 3 August 2016

Summary This note provides an overview of civil court claims for mesothelioma.

Mesothelioma is a cancer of the protective lining of the lungs or abdomen. At present, there is no known cure for mesothelioma and sufferers often die within months of diagnosis.

A mesothelioma sufferer may be able to make a claim for damages (compensation) in the civil courts based on the employer’s negligence or breach of statutory duty. Provisions in the Compensation Act 2006 reverse the effect of a decision by the House of Lords in the case of Barker v Corus UK Plc and others. This means that where a mesothelioma sufferer has been negligently exposed to asbestos by more than one employer, and it cannot be established where and when they were exposed to the ‘fatal’ fibre, then, in relevant circumstances, any one employer could be pursued for full compensation. In certain circumstances claimants other than employees are able to bring a successful claim.

The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO Act 2012) reformed civil litigation funding for most types of civil claim by removing the recoverability from the losing party of Conditional Fee Agreement success fees and after the event insurance premiums. The changes were not to apply to mesothelioma claims until the Government had conducted a review as required by LASPO Act 2012. In 2014 the Government’s decision to extend these reforms to mesothelioma claims was judicially reviewed. The High Court found that the Government had not consulted in the way required by LASPO Act 2012.

A fresh review will take place as part of the wider Post Implementation Review of the reforms introduced under Part 2 of the Act. That review will take place ‘towards the end’ of the period April 2016 to April 2018.

Other Library briefings on asbestos and mesothelioma payments can be found on the Industrial Health and Safety subject page of the Parliament website.

4 Mesothelioma: civil court claims

1. Introduction: mesothelioma Mesothelioma is cancer of the mesothelium, a protective lining surrounding the body’s internal organs. It most commonly affects the pleura (the outer lining of the lungs and chest cavity), but it may also occur in the peritoneum (the lining of the abdominal cavity) or the pericardium (a sac that surrounds the heart). Progress of the disease is usually rapid once diagnosed; death typically occurs within twelve to eighteen months.1

People who develop the disease have usually worked in jobs where they inhaled asbestos particles, but exposure may have occurred in other ways such as by washing the clothes of a family member who worked with asbestos, living near a factory using asbestos or a contaminated site, at illegal dumps, or during renovation work where asbestos is present. There is no known cure for mesothelioma.

The most recently published Health and Safety statistics (published July 2015) show:

• There were 2,515 mesothelioma deaths in Great Britain in 2014, a similar number to the 2,556 deaths in 2013, and 2,549 deaths in 2012

• In 2014 there were 2,101 male deaths and 414 female deaths.

• The number of new cases of mesothelioma assessed for Industrial Injuries Disablement Benefit increased from 2,125 in 2012 to 2,145 in 2013 and 2,215 in 2014.

• Men who worked in the building industry when asbestos was used extensively are now among those most at risk of mesothelioma.2

Based on the latest projections of annual mesothelioma deaths by the Health and Safety Executive, the Government estimate that there will be around 53,000 mesothelioma deaths in Britain over the 25-year period 2013-2037.3

1 One reason that progress is rapid is because the disease is difficult to diagnose and

so it is often in the advanced stages by the time a diagnosis can be made. 2 Health and Safety Executive, Mesothelioma in Great Britain 2014, July 2015 3 PQ HL5853, 24 March 2015. The statistical model used suggests an uncertainty

range of 49,000 to 58,000 deaths on that estimate. However, the true uncertainty range may be wider as longer-range predictions are reliant on assumptions about asbestos exposures that cannot currently be fully validated.

5 Commons Library Briefing, 3 August 2016

2. Civil claims A mesothelioma sufferer may be able to make a claim for damages (compensation) in the civil courts based on the employer’s negligence or breach of statutory duty. Each case is decided on its own facts and anyone wishing to make a claim would need to seek specific legal advice.

Civil liability can be insured against, and most employers must take out suitable insurance.4

There are time limits for bringing claims. Those contemplating litigation should seek legal advice to determine the time limits which would apply in their particular circumstances.

The process for bringing mesothelioma claims is set out in the Civil Procedure Rules, with guidance provided in Practice Direction 3D.5

4 Employers’ Liability (Compulsory Insurance) Act 1969 5 Ministry of Justice, Civil Procedure Rules, Practice Direction 3D CPR.

Claims may be based on negligence or breach of statutory duty

6 Mesothelioma: civil court claims

3. The law of negligence In order for a claim in negligence to be successful, a number of elements must be present:

• There must be a duty of care. This is determined by the facts in issue in a particular case (eg did this defendant owe a duty of care to this claimant?). This involves the court considering whether it was reasonably foreseeable that the conduct of the defendant would cause damage to a class of persons including the claimant; whether there was a relationship of “proximity” between the parties (this may consist of various forms of closeness); and whether the situation was one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon one party for the benefit of the other.6

• There must be a breach of that duty. The question of whether there has been a breach of the duty of care involves two elements:

─ How much care is required to be taken (the standard of care)

─ Whether that care was in fact taken.

The court will consider what a reasonable person should have done in the circumstances. What amounts to reasonable care in any particular case will vary according to the circumstances. For example, in the case of a professional person, the defendant would be expected to show the skill and care which would be expected of an ordinary competent person with those particular professional skills.7

• There must be actual damage caused as a result of the breach of the duty to take care.

• The damage to the particular claimant must not be so unforeseeable as to be too remote a consequence of the breach of duty.

This is an area of law governed mainly by common law, and, as such, it has evolved largely through a series of court judgments. When considering the nature of a particular standard of care, and the liability of any party, several factors may need to be considered. They include:

6 Caparo Industries plc v Dickman [1990] 2 AC 605 7 See Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

A duty of care must exist

There must have been a breach of that duty

Actual damage must have been caused

Was this consequence too remote?

7 Commons Library Briefing, 3 August 2016

• the age, experience and expertise of the persons concerned;

• the dangers of the particular activity;

• the risks and foreseeability of the damage occurring;

• whether adequate steps were taken to prevent the incident;

• the gravity of the consequences and the effect of a finding of negligence.

In short, the court will consider whether the defendant acted reasonably in all the circumstances of the case. The court will also consider the similarity or otherwise of any proposed duty of care to other duties of care already recognised as arising in other situations.

A Court of Appeal decision has confirmed that mesothelioma sufferers making a civil claim for compensation for exposure to asbestos during their employment must first prove employer negligence.8

8 Brett v University of Reading [2007] EWCA Civ 88

Factors going to the nature of a standard of care and liability of a party

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4. Liability of more than one employer and apportionment

4.1 The Fairchild exception The usual rule in proving liability in civil cases is that the claimant must show that, on the balance of probabilities, the defendant’s conduct caused the damage. Medical opinion has not yet established whether mesothelioma is caused by exposure to a single fibre, several fibres or many fibres. Once the condition is caused, it is not aggravated by further exposure. There is apparently no way of identifying, even on the balance of probabilities, the source of the fibre or fibres that caused the condition to develop. This means that if a person is exposed on more than one occasion, and by more than one employer, it may not be possible to determine which exposure caused the disease.

In Fairchild v Glenhaven Funeral Services Limited, the Appellate Committee of the House of Lords9 ruled that, in cases where the claimant had been negligently exposed to asbestos by more than one employer and subsequently developed mesothelioma, and it could not be established where and when they had been exposed to the ‘fatal’ fibre, then all the relevant employers could be liable and any one could be pursued for compensation.10 This, therefore, created an exception (the Fairchild exception) to the rule that, on the balance of probabilities, the defendant's conduct must have caused the damage. The House of Lords decided that, in these circumstances, the causing of a material increase in the risk of injury would suffice.

This case did not, however, establish whether liability should be divided between relevant employers, or, if so, how it should be done. According to the then Department for Constitutional Affairs (DCA),11 it was presumed by insurers that employers would be jointly and severally liable.12 This meant that full damages could be recovered from any one or more of them.

9 The highest court of appeal at that time, before the creation of the Supreme Court. 10 Fairchild v Glenhaven Funeral Services Limited [2002] UKHL 22 11 Now the Ministry of Justice 12 Department for Constitutional Affairs press release 147/06, Government to act on

mesothelioma claims, 20 June 2006

In Fairchild the Law Lords created an exception to the rule that the defendant’s conduct must have caused the damage

9 Commons Library Briefing, 3 August 2016

4.2 Barker v Corus UK plc The precise nature of an employer’s liability was considered in a subsequent case, Barker v Corus UK Plc and others.13 The House of Lords held that damages should be apportioned among the persons responsible for the exposure according to their relative degree of contribution to the chance of the worker contracting the disease.14 Lord Hoffmann held that “when liability is exceptionally imposed because you may have caused harm, fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm”.

The Barker decision provoked considerable reaction because it was perceived that it diminished the chances of a claimant recovering full damages. The DCA explained the consequence of the Barker decision as being that the claimant would have to trace all relevant defendants (as far possible) before liability could be apportioned and compensation paid, or issue multiple claims, and that the risk of any of them being insolvent and unable to pay the appropriate share would fall on the claimant. This could make claims much more difficult and time-consuming for claimants to bring and in some cases they would not receive full compensation.15

4.3 The Compensation Act 2006 Provisions in the Compensation Act 2006 reversed the effect of the Barker decision. This Act establishes joint and several liability in cases where a person has contracted mesothelioma as a result of being negligently exposed to asbestos. Therefore, in relevant circumstances, a claimant may claim full compensation from any relevant employer and that employer may then claim back contributions from other responsible employers.

4.4 The Financial Services Compensation Scheme

The Financial Services Compensation Scheme (FSCS) was established by the Financial Services Authority16 by virtue of s212 of the Financial Services and Markets Act 2000. The FSCS is the UK's compensation fund of last resort for customers of authorised financial services firms. This means that FSCS can pay compensation if a firm is unable, or likely to be unable, to pay claims against it. Amendments were made to the FSCS to ensure that, in relevant circumstances, an employer or insurer,

13 [2006] 2 WLR 1027 14 [2006] UKHL 20 15 Department for Constitutional Affairs press release 147/06, Government to act on

mesothelioma claims, 20 June 2006 16 Now the Financial Conduct Authority

The effect of the judgment in Barker was reversed

In Barker the Law Lords held that fairness required apportionment of damages where the Fairchild exception applied

10 Mesothelioma: civil court claims

which has paid full mesothelioma compensation, can recover a contribution from the FSCS. Previously, the FSCS was prevented from contributing to claims already paid in full. This could cause delays in paying compensation while the liability of all parties was established, and a process of ‘parallel payment’ set up, whereby a lead insurer and the FSCS (on behalf of any insolvent insurer) paid the claimant at the same time.

4.5 Subsequent case law In March 2011, the Supreme Court gave judgment in the cases of Sienkiewicz v Greif (UK) Ltd and Knowsley Metropolitan BC v Willmore.17 The issue in both appeals was whether the Fairchild exception applied in cases where only one defendant was proved to have exposed the victim to asbestos, but where the victims were also at risk of developing the disease from environmental exposure to asbestos in the general atmosphere. In both cases, the lower courts had ruled that the Fairchild exception applied and the defendants appealed.

The defendants argued that the Fairchild exception should have been held to be inapplicable when proceedings were directed against one defendant and submitted that, in such cases, liability could only be established if a claimant could prove on the balance of probability that the mesothelioma was a result of exposure caused by the defendant (ie that such exposure had at least doubled the risk of the victim developing mesothelioma).

The Supreme Court unanimously dismissed the appeals. It held that the Fairchild exception applied to cases of mesothelioma involving a single defendant and that there was no requirement for a claimant to show that the defendant’s breach of duty doubled the risk of developing the disease.

In Heneghan v Manchester Dry Docks Ltd18 - a case of exposure to asbestos leading to lung cancer, rather than mesothelioma - the Court of Appeal found that the right approach to damages was one of apportionment between the multiple defendants in proportion to the increase in risk for which each was responsible.

The claimant’s argument that each defendant was liable for damages in full having materially contributed to his father’s cancer was dismissed on the basis that it ignored the fact that there is a fundamental difference between making a material contribution to an injury and materially increasing the risk of an injury. Apportionment of damages was fair as whilst it was not possible to infer that all or any of the defendants had made a material contribution to the father contracting lung cancer, all of them had materially contributed to the risk that he would contract the cancer.

17 Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan BC v Willmore [2011] UKSC 10 18

The Fairchild exception applies in mesothelioma cases with only one defendant

Apportionment of damages between multiple defendants is the right approach when the evidence goes no further than showing they each increased the risk of mesothelioma

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5. Claimants other than employees

In a number of cases, claims have been made by those who have contracted mesothelioma following secondary exposure to asbestos. Each case is determined on its own facts. For example, the Ministry of Defence admitted liability for the transmission of mesothelioma to Mrs Debbie Brewer, whose father died from small-cell lung cancer, linked to asbestos, after a career as a lagger at the Devonport Dockyard. He had greeted his daughter each evening whilst wearing dusty overalls from which she is believed to have inhaled the fibres that caused her disease.19 In a similar case, the widow of Barry Welch received compensation after he contracted mesothelioma after childhood exposure to asbestos from the work clothes of his step-father after his employer admitted negligence.20 Conversely, in another case, the Court of Appeal held that it was not reasonably foreseeable between 1960 and 1965, and ahead of contemporary understanding, that a wife washing her husband’s dust covered work clothes would herself be likely to suffer mesothelioma and allowed the employer’s appeal against an earlier award of damages to her.21

19 “MoD admits 'cancer hug' liability”, BBC News, 20 February 2007 (on 9 February

2015) 20 “Damages won after asbestos death”, BBC News 13 December 2006 (on 9 February

2015) 21 Maguire v Harland & Wolff plc [2005] All ER (D) 242 (Jan)

Claims made by family members of mesothelioma sufferers

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6. Legal Aid, Sentencing and Punishment of Offenders Act 2012: reforms to civil litigation funding

6.1 What is a conditional fee agreement? The expense of litigation and the withdrawal of legal aid means that many claimants rely on ‘no win, no fee’ agreements such as the conditional fee agreement (CFA) to fund their claims.

Under a CFA lawyers share with the client the risk of losing the case. If the case is lost, the lawyers will not charge the client for the work done. However if the case is won the lawyers will charge an additional success fee on top of the normal fees. This is intended to compensate the lawyers for the risk of not being paid and for the delays in getting paid.

To protect against having to pay the opponent’s legal costs and both sides’ disbursements (other expenses or charges, such as fees for expert witnesses if they are needed) claimants entering into CFAs may take out an after-the-event (ATE) insurance policy under which the insurer agrees to underwrite the claimant’s liability to pay the costs of another party to the litigation.

Prior to the implementation of relevant provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO Act 2012), the losing party could be ordered to pay the winning party’s success fee and ATE insurance premium, in addition to their ordinary legal costs. Given that a lawyer could charge up to 100% of the base legal costs this added substantially to the losing party’s costs.

6.2 What changes were made to CFAs by LASPO Act 2012?

Part 2 of LASPO Act 2012 implemented a number of the recommendations of the Review of Civil Litigation Costs by Lord Justice Jackson, whose final report was published in 2010.22 Lord Justice Jackson described ‘no win, no fee’ agreements such as the CFA as “the major contributor to disproportionate costs in civil litigation in England and Wales”.23

22 Lord Justice Jackson, Review of Civil Litigation Costs: Final Report, December 2009 23 Ibid, page xvi

‘No win, no fee’ agreements are relied on by those otherwise unable to afford access to justice

Lawyers’ success fees and insurance premiums drove up costs

13 Commons Library Briefing, 3 August 2016

The main changes to the funding of civil litigation included provisions which removed the recoverability of success fees (section 44) and ATE insurance premiums (section 46) from the losing party.

Background information about the reforms introduced by LASPO Act 2012 is provided in a House of Commons Library research paper on the Bill which became LASPO Act 2012. 24 Further information may be found in the briefing paper on ‘no win, no fee’ funding arrangements.25 In addition, the Ministry of Justice has published a summary of the reforms to civil litigation funding and costs.26

6.3 How do the LASPO Act 2012 reforms affect mesothelioma claims?

Many mesothelioma claims are funded under CFAs. Legal aid has not been available for such claims for some time.27

During the passage of the Bill which became LASPO Act 2012, there was particular concern about the impact of the reforms on the funding of mesothelioma claims.28 As a result, the Government accepted that sections 44 and 46 of LASPO Act 2012 (which removed the recoverability of success fees and ATE insurance premiums from the losing party) should not be brought into force in relation to mesothelioma claims until a review of the likely effect of those sections in relation to such claims had been undertaken and published. A provision to this effect was included as section 48 of LASPO Act 2012.

Sections 44 and 46 came into effect with respect to most other civil claims from April 2013, but in mesothelioma claims it is still possible for the successful claimant to recover success fees and ATE insurance premiums from the losing side.

6.4 Ministry of Justice proposals On 24 July 2013 the Ministry of Justice published Reforming mesothelioma claims: proposals to speed up the settlement of mesothelioma claims in England and Wales (the paper).29

This made a number of proposals, including:

• A new dedicated Mesothelioma Pre-Action Protocol (MPAP) to establish a quicker standard process to set timescales for more straightforward mesothelioma claims. This aimed to encourage

24 Legal aid, Sentencing and Punishment of Offenders Bill, House of Commons Library

Research Paper 11/53, 4 July 2011 25 No win, no fee funding arrangements, House of Commons Library Research Paper

7607, 31 May 2016 26 Ministry of Justice, Civil justice reforms, (last updated 8 May 2015) 27 The Access for Justice Act 1999 removed legal aid for most personal injury claims. 28 See for example HL Deb 23 April 2012 cc 1605-1626 29 Ministry of Justice, Reforming mesothelioma claims: proposals to speed up the

settlement of mesothelioma claims in England and Wales, 2013

Mesothelioma claims are exempt from the reforms until a review of the likely impact is undertaken

14 Mesothelioma: civil court claims

the early settlement of claims without litigation where possible, helping the courts to focus on the more complex mesothelioma claims.

• An industry funded electronic Secure Mesothelioma Claims Gateway (SMCG) which aimed to support the MPAP by providing a secure method for claimants to register necessary information such as medical records.

• A fixed recoverable costs regime which would reflect the greater speed and efficiency of claims, encouraging proportionality in the amount of legal work undertaken and providing greater certainty about legal costs for claimants. 30

It also reiterated the Government’s commitment to enable mesothelioma sufferers to make claims directly against an insolvent defendant’s insurer under the Third Parties (Rights against Insurers) Act 2010, thereby removing the need to sue the insolvent defendant first.31

Section 4 of the paper was headed “Review under section 48 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012”. The Government considered that sections 44 and 46 of LASPO Act 2012 should be brought into effect for mesothelioma claims at the same time as other changes were implemented:

The Government believes that other changes set out in this consultation, and the changes to the statutory framework for funding of litigation described above, together with the changes being introduced in the Mesothelioma Bill should make it possible, and appropriate, for sections 44 and 46 of the LASPO Act to be brought into force for mesothelioma claims at the same time as those other changes. The Mesothelioma Bill was introduced in Parliament on 9 May 2013, and it is hoped that it will receive Royal Assent this year, with the relevant provisions coming into effect in 2014. [32]

73 The Government is committed to ensuring that all the changes – set out in this consultation paper and in the Mesothelioma Bill - are considered in a synchronised manner, and that mesothelioma sufferers benefit from the changes and receive compensation in a speedy and efficient way. Views on the likely effects of sections 44 and 46 of the LASPO Act in relation to mesothelioma claims in the light of the other changes would therefore be welcomed.

The paper then dealt specifically with the recoverability of success fees and ATE insurance premiums:

The success fee

74 If the Government concludes, as a result of this review, that sections 44 and 46 should be brought into force in relation to mesothelioma claims, lawyers acting for claimants under a CFA

30 Ibid, Executive Summary. 31 Ibid, Ministerial Foreword. 32 Information about the Mesothelioma Act 2014 is provided in section 7 of this note.

The Government announced it favoured extending wider ‘no win, no fee’ reforms to mesothelioma claims

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will need to consider whether they wish to charge a success fee. A success fee would be payable by the claimant out of damages, and not by the defendant. In this context it should be noted that (pursuant to another recommendation made by Lord Justice Jackson) general damages for non-pecuniary loss such as pain, suffering and loss of amenity are being increased by 10%, in part to compensate for claimants having to pay the success fee. Judicial Guidelines currently set these damages in mesothelioma cases at between £50k-£90k.

75 The Government is keen to protect claimants’ damages in personal injury cases. Regulations under the powers introduced by section 44 of the LASPO Act accordingly provide in relation to personal injury cases for the success fee that a lawyer may charge to be capped at 25% of the damages recovered, excluding damages for future care and loss (It may be noted that the success fee is ‘capped’ at that level: there is no requirement for any success fee to be charged). This provision would apply equally to mesothelioma claims, should sections 44 and 46 be brought into force in relation to such claims.

After the event (ATE) insurance premiums

76 The ability to recover the premium for ATE insurance from the losing party has, as Lord Justice Jackson found, increased the costs of civil litigation. For personal injury cases, a system of 'qualified one way costs shifting' (QOCS) has been introduced via rules of court (again pursuant to a recommendation of Lord Justice Jackson) as a cost effective alternative. QOCS is a form of costs protection under which the claimant will be protected from paying the other side’s costs if the case is lost; and this should reduce the need for ATE insurance. However, a losing defendant remains liable for the claimant’s costs in the usual way. This general protection is subject to qualifications relating to the claimant’s behaviour in the conduct of the litigation, and failure to accept an appropriate offer to settle the claim. The QOCS regime has been implemented in personal injury cases from 1 April 2013. The same QOCS protection would apply in relation to mesothelioma claims should sections 44 and 46 be brought into force in relation to such claims.

The Government then posed the following Consultation Question:

Question 15: Do you agree that sections 44 and 46 of the LASPO Act 2012 should be brought into force in relation to mesothelioma claims, in the light of the proposed reforms described in this consultation, the increase in general damages and costs protection described above, and the Mesothelioma Bill?

The review was limited to one question

16 Mesothelioma: civil court claims

6.5 Government decision to implement LASPO Act 2012 provisions for mesothelioma claims

On 4 December 2013 junior Justice Minister, Shailesh Vara, made a Written Ministerial Statement announcing the Government’s decision to apply sections 44 and 46 of LASPO Act 2012 to mesothelioma claims but not to take forward other proposals contained in the proposals paper. He stated:

The Government has carefully considered the responses and has concluded that it intends to apply sections 44 and 46 of the LASPO Act to mesothelioma cases, as for all other personal injury cases. The Government does not believe that the case has been made for mesothelioma cases to continue to be treated differently, in particular by comparison to other personal injuries, which can also have profound consequences for the sufferer.[…]

The Ministry of Justice has also carefully considered responses to its other consultation proposals. We have declined to take forward a dedicated Mesothelioma Pre-Action Protocol supported by a fixed recoverable costs regime as they currently stand on the grounds that there is not a strong enough case that they will meet the Government’s declared aim of ensuring that mesothelioma compensation claims are settled quickly - where necessary - and fairly. [...]

At this stage we still hope to identify potentially valuable reforms to mesothelioma claims process from the responses to the consultation and the Government will work closely with interested parties to discuss how these can be taken forward.33

The Government confirmed this decision in its response document published in March 2014.34

6.6 What happened next? Judicial review of the Lord Chancellor’s decision The Asbestos Victims Support Groups Forum35 applied to judicially review the decision of the Lord Chancellor to implement sections 44 and 46 of LASPO Act 2012 on the grounds that he had failed to carry out a review of the likely effects of the LASPO Act 2012 reforms on mesothelioma claims, as required by Section 48. The hearing took place on 29 to 30 July 2014.

33 HC Deb 4 December 2013 cc55WS 34 Ministry of Justice, Reforming mesothelioma claims: The Government response to

consultation on proposals to speed up the settlement of mesothelioma claims in England and Wales, 6 March 2014

35 The Forum acts as a representative body for those afflicted with asbestos related diseases in respect of legal and political issues arising from such diseases.

17 Commons Library Briefing, 3 August 2016

On 2 October 2014, the High Court found that, while the Secretary of State had discretion as to how to conduct the review required under section 48, the consultation did not invite the consultees to assess the likely effects of the sections 44 and 46 of LASPO Act 2012 on mesothelioma claims, and therefore did not meet the requirements of section 48:

I do not find that a consultation exercise per se was an inappropriate means of fulfilling the duty. Rather, the nature of this consultation meant that it did not permit the Lord Chancellor to do so...36

The Judge stated that the Government would need to carry out a further review under section 48:

[…] it is now for the Lord Chancellor to carry out a proper review of the likely effects of the LASPO reforms in whatever manner he concludes will permit him reasonably to achieve the required purpose.

On 8 December 2014, Justice Minister, Lord Faulks made a written statement confirming that the Government would undertake a review under section 48:

The Government intends to undertake a review under s.48 in due course; further details on the format and timing of that review will be set out at a later date. The Court’s judgment and the [Justice] Committee’s report will be considered as part of that process.37

The Justice Committee’s report The Justice Committee’s report Mesothelioma Claims, which assessed the appropriateness of the Government’s decision to apply sections 44 and 46 of LASPO Act 2012 to mesothelioma compensation claims, was published on 1 August 2014. The Report stated that:

It is not our function to adjudicate on whether the Government’s review complies with the statutory requirements laid down in section 48 of LASPO. Our judgment on the process of the review is a political one.38

The Report recommended that the Government should consult on the effect of LASPO Act 2012:

Our overall conclusion is that the Government did not prepare the ground for its section 48 review in a thorough and even-handed way, and we recommend that the Government undertake a further review by means of a consultation framed unambiguously and centrally on the question of whether the LASPO provisions should be brought into effect for mesothelioma. We consider that this consultation should not be

36 The Queen (oao Tony Whitston, Asbestos Victims Support Groups Forum UK) v

Secretary of State for Justice v Association of British Insurers [2014] EWHC 3044 (Admin.) paragraph 37

37 HL Deb 8 December 2014 HLWS68 38 Justice Committee, Mesothelioma Claims, 1 August 2014, HC 308, p14

The Secretary of State’s review did not meet the requirements of section 48

As a result the Government announced that a further review would be conducted

The Committee called for a fresh review

18 Mesothelioma: civil court claims

undertaken until sufficient time has elapsed for the effects of the LASPO changes in non-mesothelioma cases to have been assessed.39

The Government response to the Justice Committee’s report On 11 December 2014, the Government published its response to the Justice Committee’s Report confirming that CFAs in mesothelioma cases would continue to operate “for the time being” on a pre-LASPO Act 2012 basis:

The Government’s decision to commence the LASPO reforms for mesothelioma cases has now been overturned by the High Court. As a result of the Court’s decision, CFAs in mesothelioma cases continue to operate on a pre-LASPO Act basis, which means that any additional legal costs — CFA success fees and ATE insurance premiums — remain payable by the losing party for the time being. As a consequence, claimants will of course not receive the 10% general damages uplift either, since this relates to application of the LASPO reforms.40

Announcement of the review In a Written Statement41 on 17 December 2015 the minister for civil justice, Lord Faulks, announced that the review under section 48 of LASPO Act 2012 in relation to mesothelioma cases will take place as part of the Post Implementation Review of the reforms introduced under Part 2 of the Act. That review will take place ‘towards the end’ of the period April 2016 to April 2018.

39 Justice Committee, Mesothelioma Claims, 1 August 2014, HC 308, p3 40 Justice Committee, Mesothelioma Claims: Government Response to the

Committee’s Report, HC 849, 11 December 2014, Appendix, p4 41 HLWS410, 17 December 2015

For the time being, success fees and ATE insurance premiums remain recoverable in successful mesothelioma claims

The review will likely take place in 2017-18

19 Commons Library Briefing, 3 August 2016

7. The Mesothelioma Act 2014 The Mesothelioma Act 2014 received Royal Assent on 30 January 2014. This Act provides for a new Diffuse Mesothelioma Payment Scheme (DMPS) to make payments to people:

• who were diagnosed with mesothelioma on or after 25 July 2012,

• who were exposed to asbestos either negligently or in breach of statutory duty by their employer, and

• who are unable to bring a claim for damages against the employer or that employer’s Employers’ Liability (EL) insurer.

The DMPS is intended to address the problem where, by the time an individual has been diagnosed, the employer is no longer in business, and it is not possible to trace the employer’s EL insurer because the relevant records have been lost or destroyed.

The DMPS is run by Gallagher Bassett in accordance with arrangements made with the Department for Work and Pensions.

BRIEFING PAPER Number 04450 3 August 2016

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