Legal Aid, Sentencing and Punishment of Offenders Bill
Memorandum submitted by Asbestos Victims Support Groups Forum UK (LA 72)
Part 2 Litigation and funding costs: Clauses 41-43
The Asbestos Victims Support Groups Forum UK (the Forum)
The Forum represents asbestos victims support groups throughout the UK which are charities, or not-for-profit organisations, dedicated to providing support to asbestos victims and their families who suffer from asbestos-related diseases.
1. It is our firm belief that the requirement to pay legal costs set out in clauses 41-43 will deter many asbestos victims, especially mesothelioma sufferers, from making a claim. Asbestosis claimants could lose the whole of their compensation.
2. We think the reforms will seriously affect access to justice: cases will not go to trial and test cases will not be run. We think that costs can be reduced without making innocent victims pay guilty defendants for the right to claim compensation, and if the Bill is carried government will incur additional costs.
3. We think that recoverability of ATE premiums for disbursements (clause 33) should be extended to industrial disease claims.
4. We think that the 10% uplift in general damages is illusory. One Way Qualified Cost Shifting is likely to be more costly to claimants and gives rise to the risk of losing a home or savings.
Effect on Mesothelioma Sufferers and their families
5. From our day-to-day work with asbestos victims we know that many mesothelioma sufferers simply do not claim compensation because they are too ill and weakened by their disease. Those who do, mainly do so because we can tell them that they will not have to pay any costs. We believe that many more mesothelioma sufferers will not claim because of the increased burden they will face having to be responsible for legal costs as set out in clauses 41-43 of the Bill. To assess the effect of the reforms we conducted a survey of mesothelioma sufferers and their families.
6. The Forum surveyed hundreds of mesothelioma sufferers and their families who have, or who are making a claim for compensation, to ask if they agreed with paying legal costs and, if in doing so, would it have made a difficult time worse and a decision to claim more difficult.
7. Unsurprisingly, the 744 respondents to date (we are still receiving comments) overwhelmingly opposed the change and said it would have made claiming more difficult. What did surprise us was the number (393) who added their comments and the strength of their comments: their disbelief and disgust at the Bill’s proposals. Their comments struck at the heart of the reforms, and some of the comments are found at Annex A.
8. The Bill, based on Sir Rupert Jackson’s report, seeks to‘provide the opportunity to rebalance the risks of litigation between claimants and defendants’. Respondents were outraged that having risked their health and lives by working with asbestos with no protection, they are asked to share the risk of litigation with the defendant who has, literally, given them a death sentence.
9. The Government’s approach set out in the Ministerial Forward to the consultation paper: ‘In seeking to rebalance the costs of civil cases, we are endeavouring to ensure: ….. that unnecessary or frivolous claims are deterred; and that as a result costs overall become more proportionate.’ Respondents were equally outraged at the suggestion that they make frivolous claims or that they should suffer because some people might do so.
Effect on Asbestosis and Pleural Thickening sufferers.
10. Those who suffer non-malignant asbestos diseases, asbestosis and pleural thickening, have often been exposed to asbestos in several workplaces. They must not only provide evidence of heavy exposure dating decades ago, but they must forgo a portion of compensation where insurers cannot be traced for employers that are no longer trading. Furthermore, they have to repay the whole of the government lump sum payment, not a portion of it reflecting the portion of damages they receive. Payment of legal costs will wipe out compensation for many asbestosis and pleural thickening sufferers.
Maintaining access to justice and reducing litigation costs
11. Where a case goes to trial the success fee may be 100% and the ATE premium increases considerably. In such cases a solicitor will not pursue a claim to trial as they will be unable to recover the full success fee. Important test cases simply will not be run as the cost of ATE premiums and success fees will be far too high. Solicitors will defray some of the costs thrown onto claimants, but will be more risk averse, taking on fewer cases.
12. Changes were made to the CFA regime on the abolition of Legal Aid for almost all personal injury cases to improve access to justice. Improved access to justice is now deemed too expensive because litigation costs have risen. We believe that costs can be reduced without penalising claimants and reducing access to justice. Already, significant changes have been made through fixed costs for low value RTA claims. Success fees have been limited to 12.5% for personal injury claims and 27.5% for disease claims. We believe there is further scope for reducing costs by restricting success fees so that none are paid if an offer is accepted within the pre-action period and success fees are staged according to the progress of a claim. Additionally, current success fee percentages should be looked at again. We believe that claims management companies activities, ‘ambulance chasers’, should be controlled and cold-calling outlawed.
13. It should be accepted that there is no ‘compensation culture’, but rather a perception of a compensation culture, as made clear in the House of Commons Constitutional Affairs Committee third report, ‘Compensation Culture’ 2005-06, and more recently in Lord Young’s report.
Costs to Government
14. The inevitable reduction in civil claims resulting from the reforms will reduce the recovery of government lump sum payments and recovery of benefits at some considerable cost to government.
Recoverability of ATE premiums in medical negligence cases
15. Clause 43 allows for the recoverability of ATE premiums relating to the cost of expert reports in certain clinical negligence cases. We think this is an arbitrary decision as it is necessary to provide costly expert medical and engineer reports in asbestos disease cases. Recoverability of expert reports should be extended to asbestos disease cases.
10% uplift of general damages and ATE costs
16. The 10% uplift of general damages is illusory. In some 97% of cases defendants make an offer, which includes all aspects of the claim. It will be impossible to know that there actually has been an uplift of 10%.
17. Even if there is a demonstrable uplift of 10%, in employers’ liability insurance claims, claimants will still be much worse off.
One Way Qualified Cost Shifting (OQCS)
18. Although OQCS will remove the need for ATE, it is qualified by conditionsconcerning conduct of the claimant and the claimant’s financial resources. It will be impossible to tell a claimant that their house or savings will not be at risk. This will rule out many mesothelioma claims. OQCS does not provide for disbursement costs which can be as high as £8,000 for a mesothelioma claim.
The comments below were made by mesothelioma sufferers and their families on survey forms asking what effects the Government’s proposals would have had on them when making a claim.
Comments expressing outrage at the proposals
1. "It’s an outrage"
2. "I think this Bill is outrageous. Victims and their families do not need this as well."
3. "People are losing loved ones through no fault of their own and due to the shortcomings of the companies they worked for. To try and make anyone pay to gain compensation for the death of a loved one is disgusting. I lost my dad on May 19th only 5 months after diagnosis, he was 63 and had worked all his life paying his insurance and taxes. Surely this contribution to the state over 40 plus years warrants his family the right to claim without fear of losing out financially.
4. How ironic, that in working and contributing to the state over all these years, it is through work that my dad, and many more, sometimes do not even get to enjoy their retirement.
5. I would like to express on behalf of my family and my dad, my outrage and disgust at these proposals. I would like, if possible, to be kept informed of any progress made in dealing with this matter."
6. "I am disgusted. They need to come and witness a sufferer dying from this awful disease."
7. "It is bad enough having a death sentence without having to worry about finances."
8. "My husband made a claim in January 2010 after being diagnosed with mesothelioma. He died in August that year. I feel the government’s introduction of this Bill is disgusting considering this disease is mostly found in working class people."
9. "The MPs responsible for this are a disgrace to humanity. Pen pushers with no idea of the real world of hard working class men and women killed by asbestos while the top dogs got richer and richer with the knowledge of how dangerous asbestos was for decades and decades and decades."
10. "It is disgusting that any minister would contemplate proposing such a Bill, when past and present back as far as early 1900s should have banned asbestos and now they are responsible for this illness of people to date because they failed to ban it,"
11. "To even think of a Bill let alone introduce one is disgusting to all sufferers of this dreadful disease (I am only 56 yrs. of age)"
12. "Being told you have this disease is a big shock. Having to pay to get justice is a slap in the face."
13. "Having lost my husband to this vile disease the idea the victim should pay is obscene"
14. "The government should be ashamed there’s enough suffering and heartache for the claimants and family without having to worry about paying any amount of costs."
15. "This is a disgrace! This disease changes every member of the family life through negligence of the people who have no regard for people’s wellbeing"
16. "My father lost his life to an industrial disease. It was not his fault so why should we be penalised. Isn’t losing him enough payment."
17. "Totally unfair and out of order to punish a working man in this way through no fault of his own."
18. "I find it intolerable that I have contracted this cancer through no fault of my own, that this government then want me to pay some of the compensation in legal costs."
19. "Typical of this government, they couldn’t care less about the working man. Sufferers need all the help they can get."
20. "Recently widowed I would like to say the pain and suffering endured by both my husband (the victim) and all his family during and after this atrocious disease is unimaginable. To discover the cause if this disease, pain and suffering is due to the negligence of profitable companies who chose to ignore health and safety laws is beyond comprehension. Then to learn that these companies are to now going to be protected over financial compensation, by law, is to me sickening and too painful contemplate and I personally see this as effectively authorising future employers to go ahead and virtually ignore health and safety laws"
21. "Losing a family member to mesothelioma is bad enough. The heartache of having to relive the pain should be payment enough. We wholeheartedly oppose the Government’s actions."
22. "Let them that caused it pay it all. I didn’t ask to get mesothelioma."
23. "Due to lack of early regulations men and women have been exposed to asbestos without knowing the risks and now are expected to pay for the privilege of asking for their right for compensation for the death sentence they’ve been dealt."
24. "Mesothelioma cancer is horrendous no cure and not self inflicted. We want the people responsible to admit this hence the claims. (I remember on behalf of my sister)"
25. "The victims and families have suffered the ultimate price. This approach is an injustice."
26. "These proposals are disgraceful, losing someone to mesothelioma is absolutely heartbreakingand the fault of persons employing people without the proper protection against asbestos so it is only fair they should pay."
27. "To lose a loved one, and having to face all the legal battles fighting for what should automatically compensation has been a mine field. It’s a disgrace that people who have died, or will die with mesothelioma paid all their NI insurance and tax to know they will never see anybody who will stand up and say sorry. The insurance company’s are a disgrace and this government need to stand up for what is right and give these sick people and family’s help. Where is the dignity watching someone die of mesothelioma."
28. "Obviously these people haven’t seen the effects of mesothelioma to watch someone you love die of the disease was horrendous."
29. "Mesothelioma sufferers should not be penalised for something that was not their fault. The guilty party who provided the asbestos should pay!!"
30. "The whole point of making a claim is to make a guilty party pay attention and take responsibility. As the "victim" why should we "pay" again is our life not enough."
31. "My husband recently died from mesothelioma caused by exposure to asbestos. The new bill proposed is totally unjust."
32. "It can NEVER and under NO circumstances be justified for the claimants to pay any monies from their compensation to the guilty party! Their pain and suffering is enough to bear without this twist of the knife!!"
33. "This proposal is adding insult to injury. Yet again the mesothelioma sufferer will be required to fight at a time they are least able to do so"
34. "Once again the Government is trying to take as much as possible off those that need the help the most"
35. "As the Government knew long before it was admitted, that asbestos was dangerous, it seems very cruel to make sufferers of mesothelioma pay."
36. "Through non fault of their own, sufferers should have no added stress or their families, and everything possible should be done to make this process as smooth as possible.
37. "My life has been turned upside down, and I really didn’t want to think about anything except spending my last days with my family. I am only pursuing the claim to help my family when I am gone. I worked all my life and paid all my N.I and taxes, so this seems unfair."
38. "This Bill is an insult to people suffering from Mesothelioma through no fault of their own. The trauma of seeking compensation and having to pay legal fees and insurance out of a successful claim is shocking. The Government should be more considerate about this."
39. "Another contribution toward the banker bailout no doubt. Picking the pocket of a dying or possibly deceased man…..disgraceful!"
40. "This government is a disgrace. This Bill is a disgrace, and the people going through this have to cope with enough pain and suffering."
41. "Mesothelioma is a terrible disease it has taken my beloved husband away from me"
42. "I find it appalling that through no guilt of your own a person carrying out their work can lose their life and leave their dependants without a mother or father. It is morally sickening that those people left behind are left paying for the justice they so badly deserve and need. It’s disgraceful!"
43. "The results of this dreadful disease will stay with our family forever. His life time work took him in contact with the killer asbestos. The victim sacrificed once more. Defendant, Recognition, Accountability, Responsibility indeed."
44. "Mesothelioma is the cruelest often short lived cancer. Fighting for breath, fighting to live, fighting for possible compensation that is all that seems left. It has no place in this Bill whatsoever."
45. "No amount of compensation could ever compensate for my husband’s suffering and loss of life. To even contemplate this is wrong. My husband’s suffering has ended but still I have terrible images of his horrific suffering which I cannot erase. I had no pension, the payment is my pension. Dick’s died with him."
46. "It is bad enough having this disease, let alone the government taking part of compensation that we are entitled to. In this case, working for the government that caused it!! Disgusting!"
47. "My husband was poisoned going to work. I hope this Government remembers that!"
48. "It is disgraceful to expect victims of mesothelioma to have to pay to receive compensation. Their death sentence should be payment enough!"
49. "It’s absolutely disgusting. Haven’t they given enough with their lives?"
50. "It seems so very wrong."
51. "They are already getting away with murder."
52. "It just makes you feel worthless."
53. "They shouldn’t take any of it – the people getting the compensation are the ones who have the pain and suffering."
54. "As the Government knew long before it was admitted, that asbestos was dangerous, it seems very cruel to make sufferers of mesothelioma pay."
55. "Appalling proposals – suffering the loss of husband/father/granfathyer due to working hard all his life then to lose his life due to his exposure to asbestos – paid taxes &NI all his working life & ultimately cost him his life."
56. "Mesothelioma sufferers are victims they don’t have any say about their condition they live with a death sentence."
57. "My husband was an innocent mesothelioma sufferer who died as a consequence of his employers negligence, it is morally wrong for mesothelioma sufferers to have the additional burden of part of their legal costs"
58. "Whatever will the Government do next to penalise innocent victims of this dreadful disease. It is 2 ½ years since my husband lost his battle with mesothelioma and my family and I are still trying to come to terms with our loss."
59. "The government should be doing more for these people whose lives are wrecked by this terrible disease. The people involved in these diseases should be made to pay and not take any money from the claimants. My Ben worked at Cammell Lairds when submarines were getting built so it took 42 years to become a cancer. It took my husband’s life and firms and government should be made to pay"
60. "The victim and family have suffered enough with this horrible disease. Watching your loved ones life drain away with pain and drugs knowing no cure and they can’t breathe. Depending on oxygen and then watching them die. The worry of paying for a funeral and bill and if you win having to pay the DHSS back. Without insurance policies it’s not worth the years of stress trying to get compensation. So please please fight this unfair bill for all the unlucky people who are suffering now and in the future".
61. "Mesothelioma is a terrible disease and no one should have to endure suffering like it. If someone is responsible they should be held to account. To make the process of proceeding with a claim more difficult can only be wrong."
62. "To see the person you love dearly suffer and die with a terrible disease. You know only misery and loss. I am full of grief and sadness. You make a decision to try to see some justice. For the government to snatch what they can and make you pay for suffering – it is cruel and unfair"
63. "I have lost my dad, who looked after me. Our family have been through a terrible time. This proposal is a disgrace to all the families who have lost a loved one, or who will lose one to mesothelioma. This government must listen to us."
64. "How dare they do this to us? Don’t they think we have suffered enough? Losing a husband at an early age, it gets worse not better".
65. "How can it be fair (or moral) to reduce the costs levied on organisations that have taken your life through their negligence? It’s basically making you pay out for your own death"
66. "The government should live in the shoes of the sufferers for a month to understand the turmoil they and their family go through without having to worry about court costs".
67. Comments on the risk of paying legal costs
68. "If there had been a risk of me paying costs I would not have tried to claim."
69. "I would most certainly have thought very seriously about starting civil claim proceedings if costs were likely to have deducted from an unknown final sum."
70. "This is a terrible thing to happen to those who are innocent victims of Mesothelioma, they have enough to cope with without having to try and find money to defend their chance of claiming compensation. We are presently going through this procedure and if I knew that the government were about to do such a despicable thing I’m not sure we would have embarked on such a hard and emotional journey."
71. "These proposals would only inflict more pain and suffering on innocently affected mesothelioma sufferers and would serve to dissuade them from claiming compensation."
72. A decision on my late husband’s case for compensation has yet to be made. He struggled with the decision to apply for compensation once his diagnosis was known. He could not have gone ahead to claim knowing that we would be made to pay costs. This is wrong for mesothelioma victims and their families added stress.
73. Compensation for Mesothelioma is entirely different from, and can in no way be compared with compensation for personal injury. My late husband made it quite clear on the first consultation with our solicitor, he would not make any claim if there was any risk.
74. I think that if the Bill mentioned in your letter is passed, it should not apply to mesothelioma sufferers. They are a very special case and should not have to risk losing out financially, especially if they lose their case.
75. If we had have known legal costs would have been incurred, with the figures involved, I don’t think we would have made a claim.
76. I am making a claim on behalf of my late father in law but I am sure he would have reconsidered if he had to pay some of the legal costs.
77. Without ‘no-win-no-fee’ agreement we would not have even begun the process.
78. "We thought long and hard about making a claim. At the time we found making any decisions very difficult and we would not have gone ahead with it if there had been any chance of having to pay cost. Through no fault of his own he was in an awful position. Risking our future security would have been the complete opposite of what my husband would have wanted."
79. "My decision to claim would definitely have been affected under these new proposals."
80. "This is a terrible thing to happen to those who are innocent victims of Mesothelioma, they have enough to cope with without having to try and find money to defend their chance of claiming compensation. We are presently going through this procedure and if I knew that the government were about to do such a despicable thing I’m not sure we would have embarked on such a hard and emotional journey."
81. "Living with this devastating disease is bad enough without all this extra stress this decision would put upon us!"
82. "If we had been faced with having to pay out for insurance or risk paying costs we would have been unlikely to make the claim as my Dad, the mesothelioma sufferer, died just a couple of months after diagnosis and the costs would have been another savage blow to my Mum, now widowed."
83. "People who have mesothelioma have suffered enough when the government known about it for years. To try to take money from them is a disgrace and it will stop a lot of people making a claim."
84. "My husband Cliff who died from mesothelioma told our solicitor that he would not proceed if there were any costs. He died 17 May 2009."
85. "In most cases I don’t think people would go ahead with a claim because of financial implications."
86. "Many sufferers and their families would not be able to claim if faced with expensive legal costs. My father worked all his life in filthy foundry conditions full of asbestos, and earned just enough to exist. He sadly died from lung cancer caused through his working conditions."
87. "My husband took some comfort knowing his family would have financial security through his compensation, but I doubt he would have pursued any claim under the new proposals."
88. "The devastating effect of discovering I have mesothelioma has had, not only on myself but also on our family would be compounded by having to risk paying legal costs."
89. "Losing a loved husband to this terrible disease was traumatic. If I’d had to risk more financial cost it would have made me too scared to take the opportunity to seek compensation. I feel this compensation is owed to mesothelioma sufferers who contracted the disease through no fault of their own. They paid with their lives and shouldn’t be asked to pay anything else"
90. "Cancelled claim due to the threat of these payments"
91. Comments on how much increased stress would be involved
92. "It’s bad enough having a death sentence without having to worry about finances."
93. "We have all had enough grief. Please no more."
94. "I think it is a disgrace to put sufferers abd their families through more worry and pain."
95. "The stress that Mesothelioma causes is horrendous, so no further stress is needed by trying to make sufferers and their significant others adhere to these proposals and pay out of their own pocket with money they haven’t got."
96. "Watching a loved one suffering this disease is enough of a trauma without the added worry of legal costs."
97. "Drastically difficult as costs would not be known in advance."
98. "How can this be morally correct? To make in my case, the most heartbreaking time of my life and the family, much harder to bear. My case has not reached court yet."
99. "Being diagnosed with mesothelioma is a big shock. To then be expected to pay legal costs from any compensation that might be awarded adds yet more worry that is not needed."
100. "Its bad enough to have developed mesothelioma whilst just earning a living but to have to pay these costs when making a claim is doubling the worry and suffering – all totally cruel and criminal"
101. "Compensation is the furthest thing from your mind when a loved one has this awful disease. It is only the help of the support group and a helpful solicitor that you could do this. Making things harder is just adding more upset to an impossible situation."
102. "Having to pay costs etc. would have made a bad time even worse".
103. "The changes that the government are intending are against sufferers and families human rights and would make a claim very difficult indeed!!"
104. The risks of using asbestos were well known by Government and Council Authorities years before and this makes them responsible and therefore claimants should not have to worry about legal fees at such a time of distress.
105. "Losing a loved one to this deadly disease is heartbreaking enough, but to have the worry of the costs added, is adding insult to injury. This is just typical of this uncaring and grasping government."
106. "It is hard enough to live with the condition without any other problems."
107. "This disease is hard enough to live with, do not need more problems."
108. "It was very distressing for me and my family to be diagnosed with this terrible disease, caused by no fault of my own, and if I had to pay legal fees to fight a claim it would add to our distress."
109. "Like many sufferers of this disease my husband died before compensation was received. If these proposals had been in place it would have caused us both a deal more stress during a terrible time."
110. "Mesothelioma sufferers and families endure overwhelming suffering. They do not need extra burdens due to costs."
111. "My father died before his time, my mother is left with dementia, why make it harder for her?"
112. "Come the time this decision is made the sufferer and family are at their lowest ebb emotionally and very fragile. All the help necessary should be given. Coming out with a Bill that makes it more difficult means more hardship both financially and personally."
113. "During an already difficult time having to worry about legal costs would have been too traumatic. I would not have been able to carry on. They took all the burden off our shoulders."
114. "When you lose someone due to mesothelioma through no fault if their own the last thing you need is having further stress."
115. "Sufferers go through enough pain and suffering without having to think about costs."
116. " This is a horrific illness to watch someone go through without the worry of monies."
117. "Its bad enough to see someone suffering without all the problems with compensation."
118. "Our family has suffered already as have many others why make our suffering worse?"
119. "You don’t want your family to have the ongoing worry about this after you’ve passed on."
120. "Through non fault of their own, sufferers should have no added stress or their families, and everything possible should be done to make this process as smooth as possible."
121. "I lost my husband to this disease suddenly and at a time when our lives should have been relaxed and enjoyable. He was active and strong until August 2005, but became ill and died within 4 months on the 21 st December 2005, aged 70. Any further stress at this time would have made the situation much worse."
122. "It is immoral for claimants to have to pay any legal costs in mesothelioma cases. It is a very difficult time, I know my husband died and the payments of legal costs hanging over us would be horrendous"
123. "It was a very difficult and upsetting time and it was a very worrying period going through the claim period which would have been even more worrying and stressful if these new legislations had been in place. Mesothelioma sufferers contracted this illness through gross neglect of the government and employers and claimants should not be given any added worry or stress after all the distress the illness entails"
124. "It is a very traumatic & emotional time without having to worry about legal costs as well."
125. Comments on trivial claims and mesothelioma as a special case
126. "I can understand the need for legislation to prevent the trivial no win no fee claims but how can the claim of a mesothelioma sufferer be "lumped" in with "ambulance chasers"? Mesothelioma has only one outcome and that is loss of life it is nothing trivial and patients need help not hindrance. (widow)"
127. "I agree with the government’s decision to try to stop trivial and dishonest claims but in some cases i.e. mesothelioma it is totally wrong."
128. "Perhaps valid to curb ‘whiplash’ type claims but grossly unfair for medically confirmed terminal illness/disease."
129. "I think that if the bill, mentioned in your letter, is passed it should not apply to mesothelioma sufferers. They are a very special case and should not have to risk losing out financially, especially if they lose their case."
130. "This proposal should never affect Mesothelioma sufferers. It is already a painful experience, this will just make it worse."
131. "Mesothelioma is a special case – a dreadful fatal cancer caused by negligence in the workplace in most cases and involving huge suffering for victims and their families."
132. "I believe the issue of claims in respect of Asbestos and industrial related issues to be vastly different to those passing claims for compensation for minor mishaps i.e. tripping over pavements and the like."
133. Comments on deterrent to breach of H&S Law
134. "Compensation just means that money worries don’t compound a very difficult and upsetting situation. It also acts as a deterrent to those who flout the laws on asbestos."
135. "Guilty defendants should pay all the costs making companies now think about health and safety of its employees and the financial implications not only now but in the future."