On 9 March 2015, after just 7 weeks from initial announcement, the Ministry of Justice introduced a 5% levy on court fees for compensation claims worth over £10,000. The increase saw the fee for issuing a claim worth over £200,000 increase overnight from £1,515.00 to £10,000.00. Awards for compensation for mesothelioma and associated financial losses frequently exceed this figure and so the hike in court fees presented a huge deterrent to those suffering this incurable cancer, from seeking and obtaining justice against those responsible for causing their illness – usually former employers who failed to take any or inadequate steps to protect them.
Many of these sufferers would fail to qualify for remission of the court fee due to the fact that they had received a lump sum payment under the Pneumoconiosis etc (Workers’ Compensation) Act 1979 or the Diffuse Mesothelioma Payments Scheme 2008, the level of payment being in the order of £15,000 upwards. These sufferers, often of modest means and with a limited life expectancy, would be expected to use the lump sum payments obtained from one government department, to pay another department, to bring those who have caused their illness to book via the courts.
Mesothelioma being an incurable illness, sufferers would often be reluctant to pay this level of court fee which they need to pay for care costs and to provide some financial security for themselves and their families and so would be prevented from seeking compensation and from obtaining justice.
The Asbestos Victims Support Groups Forum UK challenged the introduction of this levy against suffers of mesothelioma, by way of an action for judicial review of the policy, arguing that it was unlawful. The Ministry of Justice, having initially countered the claim by arguing that it was not unreasonable for mesothelioma victims to have to use the lump sum payment to pay their court fees, later climbed down and last week the Lord Chancellor, Michael Gove, agreed that these lump sum payments should not be included in a person’s “disposable capital” for means-testing for remission of court fees.
This concession follows an earlier climb-down by government over a series of other measures relating to the process whereby mesothelioma sufferers can seek to obtain compensation by those who have caused their illness. These included the proposed removal of an exception applicable to mesothelioma sufferers only, whereby their full legal costs can still be recovered from the companies if they are successful in their claim.
This and other proposals favoured by the Association of British Insurers, whose members have historically benefitted from premiums paid by the companies who have caused the exposure to asbestos fibres, were also challenged by the Asbestos Victims Support Groups Forum. The result of that judicial review in 2014 was, preservation for the time being at least, of the exception in recovery of legal costs for mesothelioma sufferers.
Whilst these laudable and necessary actions have undoubtedly removed from sufferers of malignant mesothelioma, significant obstacles in their fight for justice, unfortunately, those who have developed other forms of asbestos disease, such as asbestos-related lung cancer or progressive asbestosis, are not able to take advantage of these exceptions; a position which those of us involved in helping asbestos sufferers find unpalatable.