Mesothelioma U-turn is a pyrrhic victory
Journalists are sometimes accused of misquoting people (not me, you understand, just in case Lord Justice Leveson is reading). So let me give Jonathan Djanogly an opportunity to be quoted in full, without amendments.
Here is the justice minister, speaking in the House of Commons, on 17 April. He was asked why mesothelioma cases could not be exempted from reforms in the Legal Aid, Sentencing and Punishment of Offenders bill, as an amendment tried to do.
‘Amendments would create inconsistency and damage the wider goal of our reforms - to restore sense to the costs of litigation, which have been substantially increased by the way in which no win, no fee cases operate, largely to the detriment of defendants.’
It was clearly a resounding message, for it bounced across the central lobby of parliament into the Lords a few days later.
There, fellow justice minister Lord McNally was resolute, declaring that ‘to exempt mesothelioma cases wholly from our reforms would be to retain the status quo, undermining the package of reforms and allowing cases to drag on’.
Yet within 24 hours of these words, mesothelioma was exempted, plucked out of the bill and sent into the long grasslands of further consultation.
The government now wants a report into the effect of LASPO, though these is no indication how long it will take or who will be asked to contribute.
It is now almost a year since the Ministry of Justice published its consultation on LASPO, having listened to a variety of opinions for more than six months. What more can we possibly learn about the effect of this bill? The government wants more time to consider the implications of a Fund of Last Resort - rumoured to be coming this summer - but this has been on the cards for two years. Did it not cross the mind of the MoJ to take account of it in LASPO?
The irony is the claimant lobby should be happy to have secured one exemption, albeit perhaps only a temporary stay of execution. But the overwhelming feeling will surely be of exasperation that this debate had to be fought so hard. It always seemed ludicrous - bordering on offensive - for the government to lump mesothelioma cases into the compensation culture, with Djanogly only last week describing solicitors involved as operating a ‘racket’.
The government, at least, had showed some backbone in fighting its corner, arguing for the ‘all or nothing’ policy in the face of fierce opposition. To then U-turn at the last moment smacks of a lack of conviction and uncertainty - perhaps even doubts about the reforms of LASPO themselves.
And of course the government’s original position was right, in a way. Why should the mesothelioma sufferer be treated differently (in terms of right to keep their compensation) to a victim of gross clinical negligence? How can one person’s suffering be differentiated from another’s, simply because of the root cause?
Ultimately for the claimant lobby, there will be the feeling of a pyhrric, unfulfilling victory. The government has played the part of Mr Bumble, offering a few breadcrumbs long after most of the children have grown up and left the orphanage. An exemption will be welcomed, but it’s too little, if not quite too late.
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