Historic Victory over Barker!
For the first time in living memory, the UK Government reversed a decision of the Law Lords in a matter of weeks to restore justice.1 The discredited judgment was issued on May 3, 2006 in the case of Barker v. Corus;2 on July 17, the House of Commons approved legislation to reimpose the concept of joint and several liability on defendants in mesothelioma cases; on July 19 the House of Lords concurred. The bill is expected to receive Royal Assent on July 25, after which it becomes UK law. From start to finish, the process took a mere 12 weeks!
During the 3 month post-Barker limbo, the majority of mesothelioma cases were stayed; those which were settled will be entitled to apply to a relevant court to have the settlement varied. The mesothelioma amendment will affect cases brought by claimants in England, Wales, Scotland3 and Northern Ireland.
The swift action taken by the Government over Barker was almost certainly precipitated by the widely shared perception that asbestos victims have become the focus of a coordinated and well-resourced attack by UK PLC to strip them of their rights. Compensation for pleural plaques, a condition which is responsible for the majority of asbestos-related claims, was effectively ended by a ruling of the Court of Appeal on January 26, 2006 in the case of Rothwell v. Chemical & Insulating Co. Ltd.; should this decision stand, it could deprive plaque sufferers of £25 million a year.4 Within weeks of the Rothwell verdict, reports were circulating that comments by the Law Lords adjudicating the Barker appeal foretold yet another defeat. And so it was.
The Barker reversal is truly historic. The members and supporters of the Asbestos Forum of Victim Support Groups led the campaign to overturn this unjust decision. MP Michael Clapham, Chair of the Asbestos Sub-Committee and Hugh Robertson from the TUC also played major roles in working with Ministers and civil servants to find a way around the Law Lords' decision. Concurrently, efforts were being made to find ways to streamline the compensation process for mesothelioma sufferers. On July 20, Work and Pensions Secretary John Hutton announced interim measures which included the production of information literature, a joint project with HM Revenue and Customs to speed up access to employers' records and a new telephone enquiry service being set by the Association of British Insurers (ABI) in the Autumn. Hutton said:
I am committed to ensuring sufferers of this awful disease, which progresses so rapidly from the time of diagnosis, will get compensation before they die. We will continue to work with our partners to ensure these short-term outcomes are just the first steps as we develop options for the future I will provide a further update in the autumn.
July 21, 2006
1 There is little doubt that this ruling will also benefit sufferers of other occupational diseases.
2 See: Developments Post-Barker and Shameful Decision by UK Law Lords
3 As the law of damages is devolved in Scotland, this act of the UK Parliament could only be extended to Scotland because of the adoption on June 29, 2006 of a legislative consent motion by the Scottish Parliament giving Westminster the power to bring in the change under Scottish law. See: http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-06/sor0629-01.htm
4 Kazan-Allen L. Apportionment of Liability for an Indivisible Disease? British Asbestos Newsletter. Issue 62. Spring 2006.