Legal blog: Wise moves on personal injury

I read the Supreme Court judgment in BAI v Durham [2012] last week – the most recent judgment in a long litany of asbestos litigation over recent years.

There was a sense of relief in reading their Lordships’ conclusions as they essentially restated the position for mesothelioma claims as being where most of us believe it should always have been. The insurance in place at the time of exposure will answer to the claim, irrespective of how an employers’ liability policy defines injury.

The judgment will help simplify mesothelioma claims for practitioners and provide compensation to many claimants who would otherwise have gone without. For that reason, this judgment deserves praise and should be welcomed by all.

Inevitably, though, the outcome created some clamour in the media, with Unite general secretary Len McClusky declaring that “for callous insurers, this means that the responsibility holiday is over”.

This is hardly a fair reflection of the litigation when many of the current ‘live’ market fought to preserve the status quo and to overturn the Court of Appeal decision. The litigation was brought by four ‘run-off’ compensators that sought to limit their exposure. The ‘live’ market pushed back and helped preserve compensation for many. The ABI was quick to welcome the judgment, and called for further work and progress to accelerate the delivery of compensation to those suffering from this most dreadful disease.

Amendments overturned

The timing of all this was quite coincidental with the passage of the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) in the House of Lords. On 14 March at report stage, two amendments were moved by the opposition and defeated by government.

Amendment 132 AA has the effect of excluding respiratory claims from the LASPO clauses relating to the non-recoverability of both ATE premium and success fee. Amendment 132 AB has the same effect for all other claims for damages for industrial disease claims. 

FOIL believes this was an unhelpful development in the now emergent Jackson package of reform including the LASPO legislation, and was pleased that the Commons rejected both amendments on 17 April. The clauses will now be sent back to the Lords for further consideration.

Although I would not support the amendment put forward by the Lords in relation to respiratory claims, I think we would all agree that mesothelioma claims should be treated somewhat differently from the norm. The will from insurers that I speak to is to pay these claims quickly once liability is established and, if possible, prior to the death of the claimant.

Seeing through the rhetoric

Why the TUC considers that claims for low-level noise-induced deafness and vibration cases should also be classed as an exception is difficult to understand. They see the rise in claims frequency as an RTA-specific problem. Yet talk to any compensator with a legacy book and they will tell you that the number of claims being presented for both deafness and vibration has dramatically increased over the last 18-24 months.

As discussed in last month’s blog, these are cases where the claimant lawyer enjoys an hourly-rate cost regime allied to a success fee, more often than not all backed by an ATE product at the expense of the defendant. As such, it should not come as a huge surprise that the TUC was so anxious to push this amendment alongside that for mesothelioma.

Progress is being made in terms of the delivery of compensation to those with mesothelioma – improvements in tracing and in process. The amendment removing such claims from LASPO is unwarranted. The broader exemption is completely unjustified and leaves the impression that this is an income-stream issue for one sector.

The government seems to have seen through the rhetoric. We are pleased that it has sought to reverse these amendments at the first opportunity. We cannot start to unravel the Jackson interlocking package – it is a cohesive bundle of reform that should apply to all personal injury claims.

Finally, as I write, news has reached me that Lord Justice Jackson has been taken ill and will be away from his duties over the coming months. I am sure all will wish to join me in wishing him a full and speedy recovery.

Don Clarke is president of the Forum of Insurance Lawyers and a partner of Keoghs LLP