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MoJ backs flat fees for mesothelioma cases

Plans include ABI's pre-action protocol and 'secure gateway'

24 July 2013

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The Ministry of Justice has set out its plans to introduce fixed fees for claimant lawyers handling mesothelioma cases.

Fixed fees would be applied to cases handled under a new mesothelioma pre-action protocol (MPAP), as put forward by the Association of British Insurers, which would aim to encourage early settlement.

In a consultation paper launched today, the MoJ also asked for views on another proposal by the ABI, in which it would fund an online Secure Mesothelioma Claims Gateway.

The gateway would not be compulsory, but the ABI said its aim would be to handle all claims, including those subject to litigation.

The MoJ said it was the government's "provisional view" that fixed costs should apply only to claimants, but it also wanted to hear views on whether it should apply the same, or a different, approach to defendants.

Officials said in the consultation that fixed costs would bring more "transparency and certainty" and reduce the risk of claimants shopping around to "find the best deal in legal representation".

Adrian Budgen, head of Irwin Mitchell’s national asbestos team, said: "Mesothelioma cases are by their very nature complex, but unfortunately the insurance industry has persuaded the government that they are straightforward.

"You’re going back over 30 years and piecing together detailed evidence – it’s not like an RTA. These investigations are painstaking and you’re representing a terminally ill client.

"The government’s proposals would force claimants to work within arbitrary fixed costs while their opponents could have access to the best representation money can buy. There’s no equality of arms there."

Although fixed costs would apply only to cases which followed the protocol procedure, and other cases would be subject to guideline hourly rates, the settlement of cases outside the MPAP could take into account whether the protocol should have been used.

The MoJ put forward three kinds of fixed fees, all incorporating flat fees in some form.

Officials said the "simplest option" would be a single flat fee, which could be based on the median legal costs for all claims where the defendant was traced, currently around £8,300 excluding VAT.

However, the flat fee could be set at less than the median cost to reflect the efficiencies produced by the MPAP.

A second option would be separate flat fees for separate stages of the process, with the first stage ending with the issue of the letter of claim.

Alternatively, fixed fees could take the form of a single base rate plus a percentage of damages, such as two per cent.

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