Last week the long awaited Supreme Court Judgment in Coventry v Lawrence was finally handed down.
Although the case was concerned with noise nuisance suffered by the owners of a property near a speedway stadium, the main issue arising from the Judgment relates to Conditional Fee Agreements (CFA) and After the Event Insurance (ATE). These have been integral to personal injury claims, including claims for asbestos diseases such as pleural thickening, asbestosis and continue to be so in respect of any mesothelioma claim.
The claim was run on the old no win, no fee system whereby if a claim was unsuccessful, the Claimant was not liable to pay any legal costs. The Claimant’s legal fees were not paid and the Defendant legal fees were paid through the ATE insurance. However, if a Claimant was successful in their claim the Defendant was responsible for their own costs, the Claimant’s costs and a success fee of up to 100%.
In the initial claim, the Claimants won and the Defendant was ordered to pay damages along with 60% of the Claimants’ costs, a 100% success fee and 60% of the ATE premium. The costs amounted to £1,067,000 with the Defendant being liable to pay £640,000. The Defendant objected to having to pay a success fee and ATE premium to the Claimants, arguing that this went against the Access to Justice Act 1999 and was in breach of their human rights to a fair trial.
The no win, no fee system was reviewed and reformed under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Since April 2013 solicitors have continued to act for clients on a no win, no fee basis, however if claims are successful, the Defendant is no longer liable for a success fee or the ATE premium. Instead, up to 25% can be taken from the Claimant’s damages to pay for costs which are no longer recoverable from a Defendant. This was done with the aim of rebalancing the fairness of claim costs which were previously thought to be Claimant friendly.
When LASPO was introduced, asbestos disease claims were included, meaning those suffering with pleural thickening, asbestos lung cancer and asbestosis could have up to 25% of their damages taken away to cover legal costs. Thankfully, mesothelioma claims exempt from the LASPO reform with sufferers and their families still being able to recover the success fee and ATE premium from the pursued Defendant.
An amendment was included in the LASPO Bill which allowed mesothelioma claims to remain under the old Conditional Fee Agreement system until the situation could be reviewed. The Government recently claimed that this review had taken place and as a result, mesothelioma claims would be joining other asbestos disease claims under the LASPO system. Fortunately, Mr Justice William Davis in the High Court has ruled that the review was inadequate and therefore illegal and stated that a full review was required.
As mesothelioma claims are still being run under the old system, the Judgment in Coventry v Lawrence would have implications for people suffering with mesothelioma trying to claim compensation for their condition.
The case was heard before seven Justices due to the importance of the case whereas usually such matters are considered before five.
Submissions were made by the Appellants (Claimants), Respondents (Defendants) and a number of interveners, including a representative of the Asbestos Victims Support Groups Forum UK.
Judgement was found in favour of the Appellants with the Respondent being ordered to pay both the success fee and ATE premium.
The Judgment is good news for mesothelioma sufferers and their families, meaning they are able to claim the compensation they deserve without the worry of how they will pay for legal fees. It also alleviates any concerns they may have had in relation receiving enough compensation to pay for their ongoing needs and to secure financial security for any loved ones left behind.
Until the Government carries out an adequate review of mesothelioma claims in relation to the LASPO Bill, we can continue to act for mesothelioma patients on a no win, no fee basis, ensuring that they receive 100% of the compensation awarded to them.