Wednesday, 5 February 2014

The government's U-turn on mesothelioma is wrong

There's something about U-turns that automatically rings alarm bells.

On the roads, they're banned in almost every circumstance - for a good reason. A driver executing a U-turn goes against the prevailing traffic, causing danger and the risk of an accident.

Governmental U-turns are no less dangerous. Last week we were confronted with one by Justice Minister Shailesh Vara. It is difficult not to see it as both a disaster and an injustice.

U-turn sign

A manifest injustice

It transpires that the government has decided to revoke the exemption of mesothelioma claims from the success fee and after the event premium elements of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). This follows a consultation launched in July last year.

The consultation was initiated to determine whether sections 44 (on success fees) and 46 (on ATE premiums) of LASPO should be brought into force in relation to mesothelioma claims. Along with many other personal injury practitioners, I was concerned to ensure that they remained exempt. Bringing them into force for mesothelioma claims could only result in a manifest injustice, which was summed up succinctly by my colleague Matthew Stockwell, the current president of the Association of Personal Injury Lawyers. As Matthew put it:

"It's impossible to rationalise why dying people should have to pay for the inherent risks of pursuing redress, when they certainly never asked to be in a position where they need compensation.

"Mesothelioma claimants know they are going to die, and they know they have to race against the clock when they make a claim. They are simply trying to make their last few months more bearable, and to ensure that their families will have some security when they're gone. If ever a claimant needed full compensation, it is surely the claimant facing a death sentence just because he turned up for work."

Adding to the distress of sufferers

Matthew's sentiments are absolutely right. Moreover, Shailesh Vara's declaration that "the Government carried out the section 48 review as part of the consultation on reforming mesothelioma cases, which concluded on 2 October 2013" and that, as a result, the government has "concluded that they intend to apply sections 44 and 46 of the LASPO Act to mesothelioma cases" comes across as dry and insensitive to the point of indifference.

This feeling is bolstered by the Justice Minister's additional statement. He said that the government understands “mesothelioma victims face an appalling and fatal disease with which they and their families have to come to terms, while also having to engage with the claims process. Without in any way seeking to minimise the distress this entails, however, there are many other serious personal injury and fatal claims, to which the LASPO reforms already apply, that produce difficult challenges for victims and families."

What is this statement, other than one which minimises, if not enhances, the distress of mesothelioma sufferers and their families?

To her credit, Conservative MP Tracey Crouch has joined with Labour MPs in saying that a proper review has not been carried out. Shadow justice minister Andy Slaughter has also urged the Justice Minister to conduct another consultation. We can only hope that sense, justice and fairness prevail, and that the government reverses its decision. For once, that would be a U-turn that makes sense.

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