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Disease Update

It’s been another busy month for developments on mesothelioma claims. The Justice Committee announced an inquiry into the removal of the LASPO exemption regarding the recoverability of success fees and ATE premiums; and preparation for the start of the Mesothelioma Payment Scheme continues with the publication of the Regulations governing the scheme. There have also been developments on the Recovery of Medical Costs Asbestos Diseases (Wales) Bill as this week the Supreme Court has been considering whether the National Assembly for Wales has the power to enact the Bill which was passed in November 2013.

LASPO exemption in mesothelioma claims

Last month the government published its response to the Reforming Mesothelioma Claims consultation which confirmed the December announcement that success fees and ATE premiums would cease to be recoverable in mesothelioma claims (ss.44 & 46 LASPO) with effect from July 2014. Following that response, the Justice Select Committee decided to hold a short inquiry into the appropriateness of the decision to apply the LASPO provisions to mesothelioma claims. The Committee invited written submissions on:

  • The potential impact of the provisions on mesothelioma claims;

  • Features which distinguish mesothelioma claims from other personal injury claims; and

  • The process of the review under section 48 of the Act.

DWF responded to the inquiry and our response along with those of other stakeholders can be found on the Parliament website. Partner and Head of Occupational Health and Casualty, Derek Adamson was subsequently invited to give oral evidence before the Committee on 13 May. A recording of the meeting can be viewed on the Parliament website.

Mesothelioma Payment Scheme

The new scheme is due to start in July and in preparation The Diffuse Mesothelioma Payment Scheme Regulations 2014 and The Diffuse Payment Scheme (Amendments) Regulations 2014  governing the administration of the scheme have been published. 

Commenting recently on the scheme, Derek Adamson said: "The passing of the Mesothelioma Act has been welcomed by sufferers' support groups and those who have campaigned for a fairer system to seek compensation for this type of long-term industrial disease claim. However from an employers' and their insurers' perspective, it is disappointing there has been little progress on claims process reforms aimed at accelerating settlements and reducing the legal costs of pursuing such claims.

"From our experience in the insurance sector, we know that the majority of EL insurers will have exposure to mesothelioma claims from long-tail liabilities dating back 40 to 50 years when the UK's economic landscape relied on heavy industrial output. Though many of those primary industries are in decline, we are seeing a rise in claimants from lighter industries where exposures were not so severe but enough to increase the risk of developing mesothelioma.

"The decision to move again the final compensation figure offered by the Scheme from 75% to 80% was taken without consulting the insurance industry but the Government regarded this amount as feasible within the agreed 3% levy that would be placed on EL insurers. This amount will now remain static within the Scheme for the next four years. After that time, the 80% figure will be reviewed alongside the performance of the Scheme generally. The levy itself will be actively managed and reviewed for each year of the first four years.

"We believe that the Government should now look again at the processes and costs involved in handling mesothelioma claims outside the new Scheme and find ways of speeding up mesothelioma claims process reforms. We need to ensure that those claims can be dealt with in new ways designed to ensure fair resolutions through processes which are both quicker and more costs effective than current ones which risk becoming over-burdened by lengthy procedures and escalating costs which are ultimately detrimental for legitimate claimants wanting to reach a prompt and fair resolution."

Recovery of Medical Costs for Asbestos Diseases (Wales) Bill

On 14 and 15 May the Supreme Court heard submissions on whether the National Assembly for Wales has the power to enact the Recovery of Medical Costs Asbestos Diseases (Wales) Bill, passed in November 2013. The Counsel General referred the Bill to the Supreme Court in December 2013 following argument from the insurance industry. To read more about the issues surrounding this Bill see Patrick McBrien’s review from our December Insurance Brief.

Contact

For further information, please contact Alex Fusco, Professional Support Lawyer, on 0161 603 5211.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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