ASBESTOS LAW

This post was written by Spencer Turner

Introduction

In April 2013, the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) made fundamental changes to the way in which claims made in civil courts were funded. The Claimants in this case, the Asbestos Victims Support Groups’ Forum UK (‘the Forum’) challenged the Post Implementation Review (‘PIR’) of LASPO. The Forum’s case was that the PIR 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. A copy of the full judgment can be found here.

The background to the JR

From the Legal Advice and Assistance Act 1949 through to the advent of CFAs and then the Access to Justice Act 1999 the judgment provides a comprehensive background to the way in which funding in civil claims has developed over the last 70 years.

As is well known Lord Justice Jackson was appointed to conduct a review into the costs of civil litigation in November 2008 and he produced his report in December 2009. The MOJ subsequently issued a consultation paper in November 2010 titled ‘Proposals for Reform of Civil Litigation Funding and Costs in England and Wales’. That paper addressed the implementation of Jackson LJ’s recommendations and endorsed the view that if the recoverability of success fees and ATE insurance premiums was abolished, market forces would operate to bring both of those costs down because, as before 2000, they would be payable by claimants who would “shop around” for lower success fees and ATE insurance premiums.

In 2011 the LASPO Bill went before the House of Commons and subsequently the Lords. The pertinent parts of the Bill were the clauses which subsequently became sections 44 and 46:

“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 condition 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 sub-section (2).” 

Concerns were raised during the debates in Lords as to the effect of these reforms on access to justice in mesothelioma cases. Lord Alton sought to exclude the operation of section 44 and 46 from cases of diffuse mesothelioma. The amendments were re-proposed in March 2012 and related to claims for respiratory disease generally. At the conclusion of the debates the amendments were carried, despite Government opposition.

It was eventually decided that the Government would not commence sections 44 and 46 in relation to mesothelioma claims, but those sections were brought in full force in relation to all other claims including other claims arising out of asbestos exposure. Section 48(1) of LASPO provided that:

“Sections 44 and 46 may not be brought into force in relation to proceedings relating to a claim for damages in respect of diffuse mesothelioma until the Lord Chancellor has a) carried out a review of the likely effect of those sections in relation to such proceedings, and b) published a report of the conclusions of the review.” 

LASPO and the PIR

LASPO came into effect on 1 April 2013 and the government said that a PIR would be undertaken of the LASPO reforms. In January 2017 Sir Oliver Heald QC MP said that the PIR process would begin with a Post Legislative Memorandum (‘PLM’) which would lead to an initial assessment of the way in which LASPO had met its objectives. This would be followed by the wider PIR. David Liddington subsequently told the Justice Select Committee in October 2017 that:

“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.”

In June 2018 an initial assessment policy paper was published by the Lord Chancellor which stated that:

“The Ministry of Justice is committed to undertaking a post implementation review (PIR) of part 2 of [LASPO]. It is clearly good practice to examine whether the legislation has met its objectives, and whether there are unintended consequences that need addressing. That is what this PIR is intended to deliver. We are publishing a survey to seek stakeholder views: we hope as many people as possible will complete it.

In July 2018 ‘stakeholders’ were encouraged to complete an online survey to supply data and evidence which would help indicate the impacts of LASPO for the final review. The responses that concerned asbestos claims provided for some interesting reading:

• The Forum had seen 350 newly diagnosed cases of asbestos related diseases in 2017. 42% were mesothelioma, 33% were asbestosis, 17% were diffuse pleural thickening and 7% were asbestos related lung cancers.
• The responses of the Forum indicated that they had seen no evidence that the reforms under LASPO had resulted in a wider choice or cheaper litigation for asbestos victims. There were likely fewer firms pursuing this work as cases had become less profitable and riskier. Asbestos victims were experiencing deductions from their compensation that did not happen pre-LASPO and many potential claimants were being put off because of the risks.

Leigh Day also provided a response to the consultation. Within that response they set out, amongst other things, the following:

• As a result of commercial sustainability there was an increased reluctance amongst Claimant lawyers to run potentially meritorious but difficult claims for asbestosis, pleural thickening and lung cancer because of the impact of sections 44 and 46 of LASPO.
• Difficulties were created by QOCS as claimants could still be liable to pay the costs of defendants.
• Asbestosis, pleural thickening and lung cancer cases are all treated as divisible conditions. Claimants therefore have to frequently bring claims against multiple employers. Often as a result of EL insurance not being in place, it isn’t possible to bring every tortfeasor into proceedings.

The Defendant submitted to the court that no qualitative data was submitted which showed that asbestos victims’ access to justice had suffered disproportionately compared to other personal injury litigants as a result of LASPO. Various other comments were made in a series of meetings [35-36].

The full PIR was published on 7 February 2019. Although there was reference to some of the evidence submitted by both the Forum and Leigh Day, their concerns were merely noted but were not specifically analysed nor dealt with substantially. Subsequently the Claimant brought a claim for judicial review. It was alleged that the PIR had filed to contain any thorough or substantive analysis of the effect of LASPO or any assessment which was akin to an impact assessment. Specific criticism was made of:

The failure of the PIR’s conclusions to refer at all to the deductions from compensation experienced by asbestos victims or to the fact that victims with meritorious cases are being deterred from seeking justice. Nor, it was said, do the conclusions make reference to the alleged lack of evidence that the LASPO reforms had resulted in wider choice or cheaper litigation for asbestos victims.

At the judicial review hearing before Bean LJ and Martin Spencer J the submissions made on behalf of the Claimant were:

• That there was a legitimate expectation that the PIR would adequately examine the impact of the LASPO reforms on asbestos related victims. This expectation arose from the statements made to the Justice Select Committee in October 2017, the PLM and in the initial assessment.
• The Defendant had frustrated these promises by (i) not identifying asbestos related claims as a major issue of examination, (ii) not referring to deductions from compensation experienced by asbestos related disease victims and (iii) failing to engage with the evidence that asbestos related disease victims were being deterred from seeking justice.

The Defendant’s response was threefold:

• In R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, Laws LJ made clear that a legitimate expectation only arises if there is a “promise or practice” which amounts to a “specific undertaking, directed at a particular individual or group”. No such expectation arose in this case because the Defendant’s representations were general in nature.
• The Defendant promised to carry out an evidenced-based review of the LASPO reforms in a more thorough manner than he did in the Post-Legislative Memorandum. He fulfilled this promise through the PIR. Therefore, in any event, the Claimant’s legitimate expectations had been met.
• Finally, it would not be unfair for the Defendant to resile from such a promise, if such a promise had been made.

The decision of the Court is set out in full at [55-65]. In summary, the Court found that contents of the PLM and the MoJ’s intention that the PIR would undertake ‘a more thorough and substantive analysis’ than the initial assessment did not come close to establishing a substantive legitimate expectation on the part of the Claimant that there would be a would be detailed consideration in the PIR of the alleged adverse effects of LASPO Part 2 on access to justice by claimants with non-mesothelioma asbestos related diseases:

• There was not a clear and unambiguous promise of any kind;
• There was no specific undertaking directed at a particular individual or group;
• The failure to deal with the concerns raised by the Forum and Leigh Day was not in any sense equivalent to a breach of contract or breach of representation;
• The Defendant’s actions could not be described as unfairness amounting to an abuse of power;
• In any event, the degree to which the PIR could have been completed depended upon the quality of data available to the MoJ at the time.

The court therefore dismissed the application for judicial review.

For those interested, Leigh Day has published a copy of a witness statement from Lord Alton which was used at the hearing and can be accessed via the firm’s website here.