Government gives way over impact of Jackson reforms on mesothelioma victims

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By Legal Futures

25 April 2012


Mesothelioma: MPs welcome government ‘pause’

Mesothelioma claims are to remain outside of the Jackson reforms once they are implemented next April, pending a review of their impact on sufferers, the government announced yesterday.

However, despite the surprise concession aimed at breaking the deadlock with the House of Lords over the Legal Aid, Sentencing and Punishment of Offenders Bill, the Commons again reversed the other two amendments to the bill passed by peers. The bill will now return to the Lords once more.

Justice minister Jonathan Djanogly told MPs: “On careful reflection about the special position of mesothelioma sufferers, I can now give the House the assurance that we will not commence the relevant provisions in clause 43, on success fees, and clause 45, on after-the-event insurance, in respect of mesothelioma claims in April next year.

“Rather, we will implement the clauses in respect of those claims at a later date, once we are satisfied on the way forward for those who are unable to trace their employer’s insurer.

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“The amendment commits the Lord Chancellor to carrying out a review of the likely effect of the clauses in relation to mesothelioma proceedings and to publish a report before those clauses are implemented.”

Seven Coalition MPs defied the whip last week to support the Lords’ amendment, and members from across the House – including shadow Lord Chancellor Sadiq Khan – welcomed the concession.

Mr Khan said: “We welcome the pause, and we approach the amendment in good faith. For reasons that we appreciate, the details could not be fleshed out today, but we assume that there will be an independent assessment of the evidence gathered during the due diligence phase.”

Mr Djanogly also emphasised that the bill did not require solicitors to take a success fee out of their clients’ damages – and he said that in cases in which causation is not an issue, “there is in many respects no reason why solicitors should have a success fee for that type of work”.

In his one contribution to the debate, Lord Chancellor Ken Clarke echoed this: “Lawyers do not have to take 25% of the compensation. All the costs are recovered from the defendants in a case that has been won. It is only those costs that are irrecoverable from the defendants that can sometimes be recovered [from the client].

“In a straightforward case there is no reason for anything to be recovered over and above that, and lawyers should not automatically take 25% of the claim and say that it is for their costs.”

The government again resisted Lord Pannick’s amendment that would require the Lord Chancellor to ensure that people have access to legal services “that effectively meet their needs”. Mr Djanogly said this would remove “the uncontroversial, unambiguous duty the bill places on the Lord Chancellor to ensure that legal aid is made available according to part 1 of the Bill. This made a clear link between the duty and legal aid.

“In terms of a clear duty, it does not get much clearer than this. However, the amendment would not only remove that but would replace it with a duty that would bring ambiguity and uncertainty. It refers to ‘legal services’ rather than ‘legal aid’.”

The argument over legal aid for domestic violence has boiled down to whether evidence from more than two years ago is acceptable – the Lords say it should be six – and whether evidence from specialist domestic violence organisations will count as acceptable proof of abuse. Mr Djanogly said such detail should not be on the face of the bill.

In response to a question from Liberal Democrat Simon Hughes, Mr Djanogly also revealed that the Ministry of Justice will conduct a review of the impact of withdrawing legal aid in immigration appeals about a year after the reforms take effect.

 

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