Mesothelioma Claims - Justice Committee Contents

4  The section 48 review

22. Section 48 of LASPO says that sections 44 and 46 of the Act may not be brought into force in relation to claims for damages in diffuse mesothelioma cases "until the Lord Chancellor has -

i)  carried out a review of the likely effect of those sections in relation to those proceedings, and

ii)  published a report of the conclusions of the review."[36]

The Lord Chancellor's review has been criticised for failing to comply with these statutory requirements. It has also been criticised on other grounds. In particular, amongst the main criticisms it has been argued that:

·  the review was premature, and it will not be possible to evaluate the LASPO reforms until they have been in operation for a much longer period, probably three to five years after implementation - we note that Lord Justice Jackson himself, in a paper submitted to the Civil Justice Council conference on 21 March 2014, said it was too early to reach "balanced conclusions" on the overall package of reforms to civil litigation costs;[37]

·  the question posed in the consultation paper (see paragraph 7 above) was predicated on the adoption of consultation proposals which were subsequently abandoned;

·  the process followed did not comply with section 48 of LASPO as the Government announced its decision, in December 2013, before publication of a report.

A number of witnesses argued that it was not even clear to them that the consultation formed part of a section 48 review.[38]

23. For its part, in its consultation response the Government said that it was clear from the opening paragraph of section 4 of the consultation document, headed "Review under section 48 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012", that the consultation was part of the review.[39] This line was supported by insurers and defendant lawyers, who were unanimous that the review had been conducted properly and in accordance with requirements.

24. It is not our function to adjudicate on whether the Government's review complies with the statutory requirements laid down in section 48 of LASPO. Our judgment on the process of the review is a political one. In that context Lord Faulks's comments on the background to the review are highly relevant. He explained:

    The Government always intended to bring in these changes, which included all personal injury claims not excluding mesothelioma. That was their intention. During the passage of the Bill a great deal of amendments were put forward to Part 1 of the Bill, which was legal aid, and very few to Part 2. The focus in Part 2 was on mesothelioma, which, of course, is a very emotive issue. There were arguments that this was a special case. I have dealt with that in answer to various questions about why it was not a special case, and that was, indeed, what the Ministers said in the Commons and the Lords. Facing various defeats, in due course Lord McNally in the House of Lords, and in the House of Commons I think it was Jonathan Djanogly …. decided to consult in the way that they did. Nothing from the consultation caused any rethink by the Government, but the consultation took place. There was nothing in any of the responses that would come as a surprise to the Government, and nothing, I would suggest, had it been available to Sir Rupert Jackson, that would have caused him to think differently. Of course, that was what the Ministers agreed—to have the consultation. They set up the consultation and the Government responded to the consultation.[40]

25. The evidence which we have received leads us to the following conclusions on the section 48 review:

·  the Government always intended to bring in the changes to personal injury claims, including for mesothelioma, and was not reconciled to the exemption of mesothelioma claims from the provisions of Part 2 of LASPO; it therefore decided to hold a section 48 review as swiftly as it could in order to reverse a concession which it was forced to make in Parliament during the passage of the Bill;

·  as a result of this decision on timing, much relevant information which could have informed the review was not available to respondents - it is unsatisfactory, for example that respondents did not have the benefit of being able to comment on the Government's cost-benefit analysis;

·  the shoehorning of part of the section 48 review into a wider consultation was a maladroit way of proceeding: partly as a consequence the sole question in the consultation document which respondents were asked in relation to the section 48 review sought views in the light of certain changes to the claims process which were not proceeded with.

36   Section 48 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  Back

37   Lord Justice Jackson's paper for the Civil Justice Council conference on 21 March 2014, paragraph 10.8. Back

38   See e.g. Qq 22-23 Back

39   Reforming mesothelioma claims: The Government response to consultation on proposals to speed up the settlement of mesothelioma claims in England and Wales, Ministry of Justice, 6 March 2014, paragraph 107. Back

40   Q 97  Back

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Prepared 1 August 2014