A leading defendant firm has called for an immediate end to the exemption for mesothelioma cases from the costs provisions of LASPO.
The firm, Kennedys, said the existing process for treating asbestos-related cancer cases nullifies the need for them to be left out of Jackson reforms.
The government, which allowed the exemption just before LASPO received royal assent in April 2012, is now consulting on how to speed up the settlement of mesothelioma claims. It proposes the creation of an online case management system funded by the insurance industry with a fixed recoverable costs regime.
In its response to the consultation, Kennedys said mesothelioma claims carry lower costs risks than other types of personal injury claims, with the only issue at stake usually the level of damages.
The firm said this makes them well suited to a fixed recoverable costs regime with no recoverable success fee or after-the-event insurance premium, in line with the Jackson reforms already in force in almost every other class of litigation.
The firm suggested that the government’s proposed new protocol and the secure claims gateway are unlikely to make a substantial difference to the existing practice of managing mesothelioma claims.
Kennedys partner Philippa Craven said: ‘We support the aim of the consultation to ensure speedy distribution of payments to those suffering from mesothelioma. However, it is important to ensure that speed is not achieved to the detriment of a sound and fair claims process.’
The first wave of consultation responses have started to be released, with the Association of Personal Injury Lawyers (APIL) raising several objections in its submission earlier this week.
The group said the proposals are ‘unworkable and unfair’ and a missed opportunity to improve the system for victims.
Karl Tonks, former president of APIL, said the issue of liability is not as clear-cut as defendants would argue.
’The proposal in the consultation to introduce a new protocol to settle more cases out of court sounds like a great idea in principle,’ he said. ‘But taking cases to the specialist mesothelioma court is usually the only way to persuade defendants and their insurers to admit liability for causing the disease, and to get the claim settled quickly.
‘It is also often the only way to obtain early interim payments to help provide some comfort for the victim in his final months, without having to wait for the case to end.
’We know from experience and from our own research that almost half of those lawyers asked said defendants admit liability in fewer than 10% of cases during the protocol already in place.’
Tonks said a more rigid system will ‘play into the hands’ of insurers and mean victims spend their last months in dispute with the people who have caused their illness.