Health: Mesothelioma

Lord McNally Excerpts

Wednesday 29th February 2012 Lords Chamber

[Lord Alton of Liverpool]

To ask Her Majesty’s Government what has been the cost to the Exchequer of mesothelioma cases heard in British courts in the past five years.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, based on the data available to us, it appears that the vast majority of mesothelioma claims against the state settle rather than proceed to the courts. While we do not collect centrally data relating to costs in individual categories of cases, there is no evidence to indicate that these cases differ markedly from other personal injury cases, either in cost to the Exchequer or in the costs of bringing them.

[Lord Alton of Liverpool]

I am grateful to the Minister. Will he demolish two myths? The first is that these cases are legally aided, which they are not, and, secondly, that they are part of a compensation culture, which they are not—given that there have been 30,000 deaths from mesothelioma. Would it be possible in any circumstances to fake such a disease? Instead of confiscating, as the Government intend to do, some 25 per cent of the modest compensation awarded to a terminally ill victim, why not consider other ways, such as fixing success fees—as has been done for industrial disease claims—without using asbestos victims as a rod to discipline solicitors or to aid and support the insurance industry?

[Lord McNally]

My Lords, the noble Lord uses strong words. Of course I do not believe that victims of this dreadful disease are in any way part of a compensation culture. He is quite right to say that legal aid for these kinds of cases was removed by the previous Administration in 2000. However, his strictures on what we are trying to do on this are too harsh. First of all, there is no compulsion on solicitors to charge any success fee, let alone 25 per cent, which is the maximum they can charge. The reforms that we are proposing upgrade the costs awarded by 10 per cent and protect a large amount of that compensation for future care. It is therefore not fair to term our reforms in the way that the noble Lord described, but I am pleased to make the clarifications that he asked for.

[Lord Bach]

My Lords, will the Minister confirm that the Government’s civil justice proposals mean that mesothelioma sufferers may have to pay 25 per cent of their general damages, plus their special damages for past loss, which, because of the length of these cases, can be very significant? Given that these sufferers may die in a short period of time, why will the Government not back the principle that hard-working people who have done nothing wrong should receive their full damages and not a penny less?

[Lord McNally]

The noble Lord keeps on picking these cases to support. The fact is that the previous Government removed legal aid from these cases, as was pointed out—not many cheers for that. As to the package that we have put together, as I said before there is no compulsion on solicitors to demand a 25 per cent success fee from these people. Solicitors still get their full fee; we are talking about the maximum success fee that they can get. We are putting in place a system that deals with a real abuse in the costs of these cases that crept in after the reforms that the noble Lord’s party introduced in 1999. We are simply returning to the system as originally brought in by the previous Government. We think that that worked well and will work well again.

[Lord Avebury]

My Lords, it is clear from their response to the Jackson committee report on civil litigation that the Government’s main objective is to save money. Does my noble friend acknowledge that in the case of mesothelioma sufferers, they do that by deterring people from making genuine claims? Does he also accept the estimate in the London Economics report on the fiscal impact of the Jackson proposals in the area of employers’ liability that the net loss to the Exchequer of the proposals is £70.2 million a year? If not, can he place a note in the Library of the figures that the Government would substitute for those in the Jackson committee report?

[Lord McNally]

My Lords, we are in no way deterring people from making claims for this terrible disease. We fully acknowledge that a large number of people have been diagnosed as sufferers. Even more tragically, the estimate is that many more will be diagnosed over the next 30 years. That is the terrible nature of this affliction. We have been trying to lower the bar to litigation. As I said, most cases, certainly against government bodies, are settled before they get to court. The Department for Work and Pensions has undertaken various initiatives to make it easier for claimants to trace their employer's insurers. Discussions are being held with stakeholders to determine what more can be done for sufferers. The High Court is introducing a fast-track procedure so that these cases can be dealt with more easily.

I understand why noble Lords are campaigning on this, but I do not think that the charge that we are trying to victimise the sufferers in some way really sticks.

[The Lord Bishop of Liverpool]

My Lords, is the Minister aware of the landmark judgment won in the Supreme Court recently by the president of the Liverpool Law Society about compensation for this disease? Is he further aware that Mr Jones commented afterwards that, had it lost the case, his firm would face bankruptcy? Will not the Minister reconsider the policy in the light of that experience?

[Lord McNally]

My Lords, the Supreme Court has removed some of the hurdles for sufferers of respiratory diseases in bringing claims, and that is all to the good. We are also progressing with the primary legislation brought forward under the Compensation Act 2006. As I said, Senior Master Whitaker, who oversees these cases in the High Court, has helped to introduce a fast-track procedure, which has been incorporated into a practice direction, ensuring that claims are dealt with as quickly as possible. These are terrible cases. It is right that noble Lords and others, such as the Daily Mirror, campaign for sufferers, but I reject the claim that we are in any way penalising or victimising them by what we propose.

[Lord McFall of Alcluith]

My Lords, as one who represented many hundreds of mesothelioma sufferers from local shipyards in Scotland, I give the noble Lord some examples of what happened there. Given that court cases were taking two years and the average life of sufferers was 18 months, the Lord President was approached and he decided to designate a judge to look at those cases in particular, thereby cutting down the waiting time in courts. Also, the Scottish Parliament passed the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill, which took away the iniquitous choice of either sufferers claiming while they were living or their relatives waiting until they died before making a claim. By adopting these two measures, the Government could, at a stroke, save themselves money, save court time and produce a more humane way of treating the sufferers of this terrible disease.

[Lord McNally]

I fully appreciate the noble Lord’s concern arising from his experience as a Member in the other place. One thing that we have been trying to do—the previous Administration also initiated this—is to speed up these cases. As I mentioned before, perhaps taking the lead from the Scottish example, Senior Master Whitaker oversees these cases in the High Court and brings his expertise to the whole matter. However, perhaps I may give one example of misinformation. The Daily Mirror suggested that up-front insurance of £2,300 would have to be paid. The reforms that we are bringing in remove that burden on sufferers. Therefore, I think that a proper, balanced look at our reforms would make some of the accusations made today seem very unfair indeed.