Law Lecturer Dr Alan McKenna says the Government has been found to have acted in violation of the law towards mesothelioma victims following yesterday’s ruling in the High Court.
Dr McKenna comments: ‘The government yesterday suffered a humiliating defeat in the High Court, when in a judicial review brought by the Asbestos Victim Support Groups Forum, Mr Justice William Davis ruled that the Secretary of State for Justice had failed as was required by section 48 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 to conduct an appropriate review into the likely effects of changes made under the LASPO Act to the civil litigation funding system on mesothelioma claims.
‘Section 48 had been included in the LASPO Act following strong concerns in the House of Lords over the changes being brought about under the Act and their potential negative impact on mesothelioma claimants, and prevented sections 44 and 46 of the Act being implemented in respect to mesothelioma actions until an impact review on mesothelioma actions had been carried out. Sections 44 and 46 providing that success fees and After the Event Insurance premiums would no longer be paid by losing defendants.
‘The government sought to argue that the section 48 review had been effectively carried out within a general consultation exercise it commenced in July 2013 under the title, ‘Reforming mesothelioma claims – a consultation on proposals to speed up the settlement of mesothelioma claims in England and Wales’. This Mr Justice Davis emphatically rejected. The government had constructed the review on the basis of looking at a package of measures it was proposing to implement as regards mesothelioma, and the question it asked consultees to respond to, was based on their view of the impact of the package of measures, not the straightforward section 48 requirement of reviewing the likely effect of the section 44 and 46 changes.
‘In a critical report published on the 1st August, the Justice Committee of the House of Commons in looking at the section 48 review as conducted by the government, had accused the government of conducting a maladroit review, and concluded that a new review must be undertaken. Evidence in the form of a letter between the Association of British Insurers (ABI) and the government was given to the Justice Committee that pointed to a secret deal having been concluded that in essence could be seen as the insurance industry funding the compensation scheme under the new Mesothelioma Act in return for the LASPO changes being implemented for mesothelioma claims.
‘Whilst the report of the Justice Committee was a political statement on the government’s conduct, yesterday’s judgment was a legal analysis of their conduct, and the judgment of Mr Justice Davis re-emphasises that a government cannot ride roughshod over the law, and it must follow the law as laid down by Parliament, something this government has clearly had difficulty with.’
Dr McKenna is an Associate Lecturer in Law at Kent Law School. In addition to his research expertise in asbestos-related issues, Dr McKenna has research interests in the information society, communication law, information law, media, human rights, information technology law, international commercial law, data protection and privacy. For further details of Dr McKenna’s research and publications, visit his staff profile page.