Coventry decision should not extend to mesothelioma cases

The Supreme Court has heard that any judgment made in Coventry concerning conditional fee agreements (CFAs) should not be extended to cover mesothelioma or personal injury cases.

The Asbestos Victims Support Groups Forum UK, represented by Leigh Day, was granted permission to intervene in Coventry, which has been considered at the Supreme Court this past week. The much publicised case already had an 11-day trial and two appeals before the three-day hearing at the UK's highest court.

The forum submitted there should be no general declaration of incompatibility in respect of the Access to Justice Act 1999, in relation to ongoing mesothelioma claims, covered by that type of CFA.

Further, CFAs in mesothelioma cases, as well as personal injury cases in general, are compliant with the European Convention on Human Rights (ECHR).

Finally, the forum also argued that whether CFAs in defamation cases fall within a class which are deemed incompatible with a defendant's article 10 rights, the reasoning in MGN Ltd v United Kingdom (2011) 53 EHRR 195 provides no basis for a finding that personal injury cases fall within such a class.

Doug Jewell, chair of the forum, said: "If claimants in mesothelioma cases are made liable for additional legal costs, such as success fees and the premiums for after the event [ATE] insurance policies, the numbers who do pursue claims for personal injury will decline dramatically.

"This is likely to leave their families at a financial disadvantage and could mean their spouse not only loses a partner but also sees their income slashed. We believe this would be a double injustice."

Harminder Bains, a partner in the industrial diseases team at Leigh Day, commented: "The success fee and the ATE premium claimed in the Coventry case is far in excess of the amounts that are claimed in the majority of cases and the Coventry case should not be taken out of context. Further, if success fees and ATE premiums become recoverable from the claimant and not the defendant, this will place an enormous pressure on mesothelioma sufferers to settle their claims below full value.

"In many cases, it will simply be uneconomic for them to continue to trial, even if they are faced with an inadequate part 36 offer, because of the likelihood that any additional damages they may hope to recover would be wiped out by payment of the ATE premium and the success fee.

Bains added that the additional 10 per cent increase in general damages provided under LASPO would be a "completely inadequate substitute" and that Qualified One Way Costs Shifting to mesothelioma claims would "not help matters at all".

"This would not offer protection where the mesothelioma claimant had failed to better a part 36 offer and therefore would not address the primary concern expressed by most sufferers," she said.

Image from left to right: Achas Burin (counsel from 12 King's Bench Walk), Tony Whitston (Asbestos Victims Support Groups Forum UK Trustee), Harminder Bains (partner at Leigh Day), Robert Weir QC (counsel from Devereux Chambers) and Harry Steinberg (counsel from 12 King's Bench Walk) at the Supreme Court 

John van der Luit-Drummond is legal reporter for Solicitors Journal