A government in denial, changing the very laws which currently allow ‘access to justice’, no matter how deep their pockets. A junior minister championing those reforms who has investments in the companies that will profit most from the changes. No, not a third world dictatorship, but Britain in 2012, writes Thomas Blackburn.
For the late Mrs Maureen Young, exposure to asbestos unfortunately ran in her family. Mrs Young was diagnosed with terminal mesothelioma (a rare form of cancer) in late 2004, and was given only months to live. She passed away in early 2005.
- You can read the judgment in the case of Fahy v Cape HERE.
- Thomas Blackburn is national advocacy manager at Just Costs solicitors, instructed by the law firm Pannone LLP in Fahy v Cape.
Mrs Young’s disease was caused by exposure to asbestos fibres, and although her case was a tragic one, it was merely the tip of the iceberg. Mrs Young’s cancer was caused by her handling and cleaning her husband’s overalls after work. Her husband was a dock worker in the East End of London, and the asbestos sacks which Mr Young handled in the course of his work leaked asbestos fibres which attached themselves to his clothes, to then be ingested by Mrs Young when she washed those clothes.
Mr Young died of mesothelioma in 1986. But the tragedy that befell this family was not limited to just Mr and Mrs Young. Mrs Young’s parents had also died of mesothelioma in the late 1960s, having previously worked in an asbestos factory.
However, before Mrs Young passed away she instructed Patrick Walsh, a partner at Pannone LLP, to make enquiries as to whether her exposure was unlawful, and whether her imminent death could have been prevented. Mr Walsh undertook the case on a conditional fee arrangement (more commonly known as a ‘no win, no fee’ arrangement), meaning that if he didn’t win Mrs Young’s case, she (or more likely her estate) would pay nothing.
Over the next four years hundreds of letters were sent to prospective witnesses, old family friends were tracked down, and ex co-workers of her parents (miraculously still alive and in the East End) were contacted. Mr Walsh won the case for Mrs Young’s family. The defendant – Norse Shipping Company – admitted that they ought to have prevented Mr Young from wearing his contaminated overalls home, and in not doing so they failed in their duty of care to him and his wife. The case settled for £135,000, with all the money going to Mrs Young’s estate, and none of it being taken by the Solicitor.
In the view of Pannone, the case had been fraught with difficulty and risk. Had they lost, they would have received nothing for the £50,000 of time, effort and expertise spent over the previous four year period in investigating and pursuing the Defendant. For this reason Pannone sought a 100% ‘success fee’ from the defendant. A success fee recompenses solicitors for high risk cases they bring and lose, so that on very risky cases they bring and win, they can recover a success fee from the defendant to pay for the cases they lose.
Norse Shipping Company maintained that this case wasn’t risky at all, and the success fee should be no more than 27.5%. Thus the parties went to Court and in a very rare decision, Master Haworth awarded Pannone a 100% success fee, finding that the case was exceptionally difficult and had anyone but a leader in the field of asbestos law been instructed, the defendant would probably have won.
At the time of writing, the coalition government is intent on reforming the law under a piece of legislation generally referred to as LASPO (the Legal Aid, Sentencing and Punishment of Offenders Act), and these reforms are planned for April 2013. Under the proposed new rules contained within LASPO, success fees will not be recoverable from defendants. Instead, the coalition government’s new rules will mean that individuals will have 25% of their damages taken by their solicitors in risky cases. Either that, or in extremely risky cases (where 25% of Mrs Young’s damages would not have funded the case), cases simply wont be brought in the first place.
LASPO didn’t go unopposed. The Association of Personal Injury Lawyers (APIL) and many other organisations fought tooth and nail against the proposed legislation.
Lawyers have reacted angrily, informing the government that the new rules would mean less access to justice for those who couldn’t afford it, leading to a two tier system – if you can afford to pay, you have access to the Courts, but if you can’t afford to pay then tough luck.
LASPO was championed by Conservative MP (and Parliamentary Under-Secretary of State at the Ministry of Justice) Mr Jonathan Djanogly.
Mr Djanogly is supported in his efforts by insurance companies, who complain that claims for compensation drive up the cost of policies. He has been applauded by these same insurance companies for introducing LASPO, which will lead to less claims being made. How odd then, that Mr Djanogly has £250,000 of money invested in those very same insurance companies, which are set to save up to a billion pounds on not having to pay out in cases (such as Mrs Young’s) that are never brought.
Mr Djanogly told BBC Radio 4 in 2011 that his reforms, based on Jackson’s 2010 report, would change the current system, which ‘helps claimants to the detriment of defendants, who would normally be the insurance companies’. After April 2013, claims such as Mrs Young’s are unlikely to be made any more, because they are too difficult and too expensive, and Solicitors who take on such cases and lose will likely go under.
People such as Mrs Young (and there are still hundreds of thousands of the same types of stories, ex-miners, ex-railwaymen, ex-dockers etc, who were all failed by their employers), simply wont have access to justice. They won’t have access to justice because insurance companies (who make huge donations each year to the Conservative party) have successfully run an expensive and highly publicised campaign against the ‘compensation culture’ of this country.
This is of course is the same compensation culture that allowed Mrs Young access to justice for dying years before her time. And there we have it, two entire generations dead as a result of exposure to asbestos, a law firm willing to take risks on their behalf, a government intent on changing the rules to deny access to justice to all but those who can afford to pay, and the chief champion of these very same reforms having investments in the insurance companies set to benefit most from them. You couldn’t make it up.
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award