As the clock strikes midnight on December 31st most people will be looking to the New Year to provide fresh optimism in their lives, hoping for a better year than the one that has just passed. For mesothelioma campaigners the hope will be that greater justice for victims is achieved and there is progress in the treatments available for this accursed disease. But campaigners know that the fight must go on to achieve these goals, with prominent existing issues and no doubt fresh issues emerging needing to be vigorously fought.
Research and its funding has been a central issue throughout 2014. Whilst there has been progress in getting a higher profile for mesothelioma research and increasing the possibility for research projects to be undertaken, there remains the fact that there is no guarantee of sustainable long term research funding. So this issue will remain at the top of the agenda.
Much discussion on research took place as the Mesothelioma Bill was going through Parliament this year. In the debates on what became the Mesothelioma Act, the Government in seeking to prevent any additional research funds levy being introduced into the scheme that would be funded by the insurance industry, continually emphasised that a 3% levy was all that insurers could afford on the gross premiums for employers liability insurance without insurers having to increase premiums, and the figure of 3% was what would be levied. It has emerged recently that the Government are now promising that the levy will be only 2.2%. The likely reason, although they have yet to confirm this, is that because the number of claims under the scheme has been less than expected, 2.2% is all that is needed to cover the claims made on the basis that each claim will only receive 80% of what a full claim would normally receive. Originally the Government sought to hold the figure at 75% before a re-evaluation of the admin costs revealed that 80% was achievable. Given that the Government had agreed a levy figure of 3% of gross premiums with the insurance industry, there is no justification whatsoever to reduce the figure now to 2.2%. It seems likely that at 3% claimants could now perhaps receive the full 100% value of their claim instead of 80%.
2015 will also undoubtedly see a number of mesothelioma and other asbestos related cases heard by the courts. One especially prominent case – Coventry v Lawrence, will be heard in early February. This case to be heard by the Supreme Court could possibly become a landmark judgment in English legal history, but is in fact not directly about mesothelioma at all despite its potential to have major implications for mesothelioma actions.
Coventry v Lawrence is primarily about noise nuisance created by speedway races held at a stadium in Suffolk, but it has thrown up an issue of potentially far greater legal magnitude than merely that of nuisance which concerns whether the legal costs incurred by the losing party were a violation of their Article 6 right under the European Convention on Human Rights and affected their right to a fair trial. A seven strong Supreme Court panel (normally only five judges sit, so the additional two highlight the significance of the case) will hear the case which the prominent legal commentator, Kerry Underwood, has suggested could make the outcome of the May UK General Election almost pointless from the perspective of the economic options that may as a consequence of the case be available to the incoming Government.
So why has this case the potential to be a landmark judgment in English legal history and be so devastating to the Government and detrimental to mesothelioma claimants?
The case was brought by the claimant alleging the noise nuisance using the old no-win, no-fee system (Conditional Fee Agreement), the funding system created by the Access to Justice Act 1999. I say old, because the system has now been replaced by new arrangements created under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The no-win, no-fee system meant that if a claimant lost their case they would not be liable to pay the legal costs. They would not have to pay their lawyers costs, and the defendants legal costs were taken care of by an insurance policy (ATE insurance) that had been take out. If the claimant were successful in their action however, the defendant was potentially liable for the legal costs of the claimants lawyers plus an up to 100% success fee based on such costs, and the ATE premium. From the High Court hearing of the Coventry case, the costs faced by the defendant from the claimants side alone were said to be of the order of £640,000; £400,000 of which related to the success fee and ATE premium. It is these legal costs relating to the success fee and ATE premium which will provide the particular focus of the February hearing in the Supreme Court.
The Supreme Court have already heard an appeal from the decision of the Court of Appeal in this case, deciding in favour of the claimant as regards the noise issue, but re-sitting in February in order to hear the Government’s position as regards the possible violation of Article 6. Lord Neuberger in the Supreme Court’s initial hearing voiced his concerns over the level of costs, given that the claimants home was worth in the region of £300,000 and the noise nuisance was put at around £74000.
The issue of the validity of the No win, No fee system in light of the European Convention on Human Rights is not totally new. Back in 2004 Naomi Campbell brought an action against the Mirror Group Newspapers alleging infringement of her privacy. Her claim was brought using a conditional fee agreement. She was successful in her action, although being awarded a small level of damages worth £3500, her legal costs amounting to over £1 million, a third of which related to success fees. Mirror Group Newspapers faced with having to pay Campbell’s costs as well as their own commenced a legal action in the European Court of Human Rights arguing that the scale of such costs amounted to an infringement of their Article 10 (Freedom of Expression) rights in that they would be more cautious in publishing stories in an environment of draconian success fee legal costs. In 2011 the European Court agreed with them that in this instance the success fee costs did infringe their Article 10 rights. This case can be seen as a major driver in the reforms introduced by LASPO.
If the Supreme Court were to find a violation of Article 6 in the Coventry case, there is the possibility of a flood of litigation relating to the 14 years the conditional fee system was in place, with the potential for the Government to face an untold level of compensation that could dramatically impact on state finances.
So what are the implications of an Article 6 violation finding for mesothelioma claimants? Following an amendment to the LASPO Bill, which was forced through against Government wishes, mesothelioma claims remain under the conditional fee agreement system until the Government conduct an appropriate review of the implications of the LASPO system for mesothelioma actions. The Government did recently seek to claim that a review had been carried out and as a consequence of that ‘review’ mesothelioma actions would soon be brought within the LASPO system. However, in a judicial review of this decision in the High Court recently, Mr Justice William Davis ruled the review inadequate and therefore illegal, thus requiring the Government to carryout a full review as required by section 48 of LASPO.
But if the no-win, no-fee system is found by the Supreme Court to violate Article 6, then clearly this would leave current and future mesothelioma legal actions in an invidious position. One question is whether the system per se is seen as violating Article 6, or instead it is the scale of the success fee which is the problem, and hence lower level success fees as are provided for in early settlement cases would not be seen as violating the Article. However, a powerful argument is that by providing a lower success fee to ensure early settlement thus deterring full hearing of the case in court due to the potential rise of the success fee to 100%, this itself is a barrier to a right to a fair trial.
The Coalition Government, headed by the Conservatives, are clearly keen on bringing mesothelioma actions into the LASPO system, and the Coventry case could be the lever by which it might be achieved. The Asbestos Victims Support Group Forum will be making legal representations in the Coventry case in February.