Government Mesothelioma Reforms Illegal
On a sunny Thursday in early October, justice was done in courtroom 7 of the Royal Courts of Justice. I was there to see it. Proceedings were scheduled to begin at 10 a.m. At the appointed time, a few people gathered to await the entrance of Mr. Justice William Davis who was due to hand down his decision in a judicial review (of government proposals) requested by the Asbestos Victims Support Groups Forum UK (the Forum). Those present included key actors in the litigation: Forum Chair Doug Jewell and Solicitors Richard Stein and Harminder Bains whose firm Leigh Day & Co. represented the claimants in the case of Tony Whitston (for and on behalf of the Asbestos Victims Support Groups Forum UK) v. Secretary of State for Justice and Association of British Insurers.1 Legal representatives for the Secretary of State for Justice and the Association of British Insurers were noticeable by their absence. Unfortunately, an administrative hiccup meant that although we were present, the Judge was not; an adjournment was scheduled until 2:30 p.m.
The evidence in the Forums legal challenge to government reforms which would disadvantage asbestos cancer sufferers was submitted on July 29 and July 30, 2014. In a nutshell, the Forum alleged that as a proper review of the consequences of the proposals had not been carried out, the government had acted illegally. In the circumstances, a judicial review was needed to ascertain the likely effects of the LASPO (Legal Aid Sentencing and Punishment of Offenders Act 2012) on mesothelioma cases. The findings of Justice Davis were categorical:
the Lord Chancellor has failed to carry out a review as required by Section 48 [of LASPO]. The statutory consequence of such a declaration must be that Sections 44 and 46 cannot be brought into force in relation to proceedings related to a claim for damages in respect of diffuse mesothelioma. The decision of the 4th of December 2013 will fall as a result of the operation of Section 48.2
Welcoming this judgment, the Forums press release pointed out that:
Until this review is concluded the Government cannot implement the changes A proper review is needed, one based upon evidence of the likely consequences of making these changes. We need to understand that it will take three to five years for that evidence to emerge. This matter must go back before Parliament. It is time that we had an open and transparent debate about an agenda for justice not another shabby deal done in the dark.3
This was the second legal challenge by the Forum over the coalition governments assault on mesothelioma victims rights. In 2013, calls by the Forum for a judicial review were abandoned when plans to introduce contentious measures including a Mesothelioma Pre-Action Protocol, a Fixed Recoverable Costs Regime and an Electronic Secure Mesothelioma Gateway were unceremoniously and rather mysteriously dropped.
Before heading back to Birmingham to continue the daily battle for victims rights, Doug Jewell said:
Today was a huge defeat for insurers as well as the government. The shoddy measures by which they had planned to strip the injured of their rights was exposed by documents and emails we submitted in evidence. We have been informed that the judgment will not be appealed and so the government will now have to undertake a proper and transparent review before any changes are made. The Forum is only too happy to cooperate with this process and look forward to working with civil servants and politicians to accomplish this. I speak for all the Forum members when I thank our legal team, experts and judicial officials for this great result.4
Outside the Royal Court of Justice on October 2, 2014: Laurie Kazan-Allen, Doug Jewell, Richard Stein and Harminder Bains.
October 2, 2014
1 Tony Whitston (for and on behalf of the Asbestos Victims Support Groups Forum UK) v. Secretary of State for Justice and Association of British Insurers.
2 Paragraph 39: 2 October 2014 verdict of Mr. Justice William David Between The Queen (oao Tony Whitston (for and on behalf of the Asbestos Victims Support Groups Forum UK) and Secretary of State for Justice and Association of British Insurers.
3 Asbestos Victims Support Groups Forum UK Press Release. High Court Halts Government Plans to Increase Asbestos Victims Legal Costs. 2 October 2014.
4 For information on the background to this judicial review, please see:
Kazan-Allen L. Challenging the Governments Secret Deal on Mesothelioma. British Asbestos Newsletter, Issue 95, Summer 2014.