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'Pragmatic' deal reached overmesothelioma claims
the Mesothelioma Bill on 7 January which ended with the Government having successfully defeated a number of potential amendments, including one to raise £4 million from the insurance industry to fund further research into all asbestos-related illnesses. In its current planned form, the scheme will be funded by
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a levy on current employer’s liability insurance providers and will see victims of the incurable disease receive 75% of the compensation they would have been entitled to, had their claim ended up in court. Ministers have planned for the scheme to be operational from
July 2014 and open to anyone diagnosed with mesothelioma after 25 July 2012. Penning told MPs that the deal struck with insurers had to be a
pragmatic one in order to get the scheme up and running as soon as possible. But the Association of Personal Injury Lawyers (APIL) described
ministers' plans as “watered-down justice”. Matthew Stockwell, president of APIL, said that the scheme
was a valuable first step in helping people with work-related diseases who cannot claim compensation because insurance records cannot be traced, but criticised the amounts that victims could claim. “It is bad enough that victims are exposed to deadly asbestos
just by turning up for work, then forced to use this scheme because insurance records are no longer around. Now they are to be penalised by losing a quarter of what the courts determine is fair redress. This is not the justice these people deserve,” said Matthew Stockwell, president of APIL. Jamie Hanley a partner at Pattinson & Brewer and Labour’s
parliamentary candidate for Pudsey, said that he remained concerned that the Bill did not go far enough for the victims of mesothelioma. "I believe that the reason for this is the current Government’s
relationship with the powerful insurance lobby," he said. He argued that the 75% compensation level was too low
and that the levy placed on insurers to run it (at 3% of gross written premiums) should not be lowered at any time during the scheme's existence. Ministers have said that the levy will be reduced after four
years, but Hanley said that extra money could be used to expand the scheme to cover other asbestos-related diseases and to increase spending on medical research into mesothelioma. Hanley also said that the scheme should have been backdated
10 /Claims Magazine/Issue 11
he Government has decided on how to shape a scheme to compensate mesothelioma victims who cannot trace a liable employer's insurer.
The House of Commons had its third and final reading of
After rejecting the insurance industry's plans to handle out-of-court mesothelioma settlements, the Government has attempted to appease both claimants and insurers with its new scheme
further, back to February of 2010, and was critical of the decision to lift the exemptions that currently apply to mesothelioma victims under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). From July, recovery of success fees and ATE premiums from defendants in mesothelioma claims will no longer apply. Most commentators have said that in practice most
mesothelioma victims will be charged success fees from solicitors. "Expecting mesothelioma victims to give up 25% of their
damages to lawyers as a success fee is wholly unreasonable," said Hanley. The new scheme is to come in after the Government
rejected the insurance industry's own compensation plan for mesothelioma. The Ministry of Justice (MoJ) opted to scrap the Mesothelioma Pre Action Protocol (MPAP) on 4 December after reviewing the responses to its consultation on claims involving the disease – many of which were highly critical of the proposals put forward by insurers. The MPAP would have been built by the insurance industry and was supposed to help victims or their lawyers to quickly settle uncontested claims with the insurers of the employers responsible for exposing them to asbestos. Its components were similar to another protocol put forward by
the Association of British Insurers (ABI) in 2007, which was rejected by the then Labour Government after objections from charities and support groups. Critics of the MPAP argued that taking cases to the specialist
mesothelioma court is usually the only way to persuade defendants and their insurers to admit liability for causing the disease, and so to get the claim settled quickly. Emma Costin, an industrial disease lawyer with Simpson Millar,
also applauded the decision to block insurers' proposals, saying that if the MPAP had gone through, then claimants would have been forced down prescribed procedural steps before court proceedings could be issued. "This process would take weeks or months and many sufferers
would have died before they saw a penny of compensation,” said Costin. “By lobbying the government and constantly playing to the
popular press the ABI has created the myth of a compensation culture and seeks to apply this label to victims of asbestos disease. "Insurers know that if claimants are restricted in the level of
legal costs they can recover to the extent that they propose, the consequence will be that many specialist lawyers in the field will not survive and fewer claims will be made. "Without specialist advice claims will inevitably take longer and claimants recover less,” she added. ●
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