Clinical negligence and mesothelioma: further exceptionalism?

policy definitionDespite claims arising from clinical negligence and those for compensation for mesothelioma being very clearly within the definition of “claim for personal injuries” at CPR part 2.3(1), both types of claim are subject to certain special provisions because of their particular nature. Two further such exceptions have been just confirmed:

  • a temporary relaxation of costs budgeting in clinical negligence claims, and
  • a refinement of how the increases in court issue fees introduced earlier this year will apply to mesothelioma claims.

The latter is due to be clarified a Statutory Instrument.

As well as being subject to the general CPR provisions applying to claims for personal injuries, clinical negligence claims and those for mesothelioma follow certain specific provisions. Each type of claim has recently seen further such special measures.

  • In respect of clinical negligence, it has just been confirmed that these cases will be exempted from costs budgeting requirements for three months – from October 2015 to January 2016 – so as to clear the backlog of cases in the High Court.

This approach first was proposed by Jackson LJ in a lecture in May and, despite some concerns of principle expressed by Lord Dyson MR at that time – his “fear that the lack of [judicial] resources card would be played in many cases and that there is a real danger that costs management would become the exception and, and not the rule, in clinical negligence cases” – it very much appears that pragmatism has won the day among the judiciary and masters. There will be a time limited exception to costs management requirements to ensure these claims continue to move forward.

  • For mesothelioma claims, on 3 July the MoJ stated that the enhanced court fee regime will be modified in some cases, stating that “It was not our intention that people suffering from mesothelioma should be required to use their compensation to pay court fees”.

This latest move by the MoJ was in response to yet another judicial review of its policies as they apply to mesothelioma claims. The Asbestos Victims Support Groups (AVSG) Forum UK sought to challenge the imposition of so called “enhanced court fees” (for which read significantly increased charges) in mesothelioma claims. The AVSG’s argument was a technical one, based on the risk of payment of statutory entitlements increasing a claimant’s disposable capital and thereby disqualifying him or her from being exempt from the increased court fees if his or her civil claim was subsequently litigated.

On 2 July, the Government Legal Department (formerly Treasury Solicitor) wrote to the AVSG and, in effect: (a) conceded the point above, (b) undertook to amend the relevant Statutory Instrument and (c) indicated it would meet legal costs up to £35,000. The GLD’s letter made it clear that:

“The Lord Chancellor has decided to exclude from the definition of ‘disposable capital’ compensation awards made to mesothelioma sufferers under the PWC Act, the 2008 Scheme and the Diffuse Mesothelioma Payment Scheme. He proposes to place an amending Statutory Instrument before Parliament and pending such amendment … to treat such awards as excluded disposable capital for the purposes of fee remission…”

It remains to be seen if the amending SI will be tabled before the 2015 summer recess.

The clarification or climb-down by GLD / MoJ may be more significant symbolically than in practice. Yes, there is a headline message here that the MoJ has lost another judicial review (JR)brought by the AVSG (its previous JR stalled the MoJ’s attempts to bring mesothelioma claims within part of the LASPO Act).

In spite of this, the ‘disposable capital’ threshold for remission of court fees remains at £16,000, disregarding the value of the claimant’s home and now, as clarified above, statutory payments made in respect of mesothelioma. At a practical level, it is unclear how many (or how few) additional mesothelioma claims might qualify for fee remission as a direct result of the JR. In any claims which do now so qualify, the consequences would appear to be that:

  • claimants are no better off in damages
  • they do not need to fund the fees on issuing
  • defendants will not have to repay the fees as recoverable disbursements.

The final substantive paragraph of the GLD’s letter observes that: “It is a matter of regret that the points … raised in these judicial review proceedings were not raised during the consultation process …”

About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).

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