Kerry Underwood

MESOTHELIOMA CLAIMS – MESOTHELIOMA ACT 2014

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This piece was prepared by Leah Waller, Assistant Solicitor at Underwoods Solicitors –

 

Victims of mesothelioma unable to trace an insurer for the employer responsible for the exposure to asbestos were left without a remedy until the passing of the Mesothelioma Act implemented by The Diffuse Mesothelioma Payment Scheme Regulations 2014 S.I. 916 made under section 1 and section 17(4) of the Act.

Eligible individuals may now apply for compensation packages worth an average of £123,000.00.

This Payment Scheme compensation has increased, as of 1 July 2014, in accordance with The Diffuse Mesothelioma Payment Scheme (Amendment) Regulations 2014 S. I. 917. The maximum award from 1 July 2014 is £216,896.00. The awards under The Diffuse Mesothelioma Payment Scheme (Amendment) Regulations 2014 have increased by an average of £8,000.00 as compared with the awards under Schedule 4, Table 1 of The Diffuse Mesothelioma Payment Scheme Regulations 2014.

The maximum award, from 6 April 2014 to 30 June 2014, was £203,778.00. (Schedule 4, Table 1 of The Diffuse Mesothelioma Payment Scheme Regulations 2014).

The full impact assessment was produced for the Mesothelioma Bill and this stated that the

“scheme payment includes an amount to cover applicants legal fees…this assumption has been moved back to £7,000.”

This assumption, however, has not been made clear in either The Diffuse Mesothelioma Payment Scheme Regulations 2014 or The Diffuse Mesothelioma Payment Scheme (Amendment) Regulations 2014 as no reference to legal fees is made.

However the Frequently Asked Questions on the Government website for the Diffuse Mesothelioma Payment Scheme states the following:-

 

“Who pays my solicitor’s fees?

If your application is successful, the Scheme will pay you a fixed fee of £7,000 out of which you can pay your solicitor’s fee. If you incur legal costs of less than £7,000 you are entitled to keep the difference. If your legal costs exceed £7,000, you will be liable to make up the difference.”

Thus it is obviously the Government’s intention to pay a contribution of £7,000.00 towards the victims legal fees from the payment that they are awarded and indeed the table, presenting the compensatory award is headed with a paragraph stating:-

“The amounts quoted in the table below include a £7,000 contribution to legal fees.”

The table referred to is a copy of the table set out in The Diffuse Mesothelioma Payment Scheme (Amendment) Regulations 2014.

Various conditions must be met:-

  •  the victim must have been “first diagnosed with the disease on or after 25 July 2012.” (section 2(1)(b));
  • the victim must not have brought an action for damages in respect of the disease against the relevant employer or any insurer with whom the employer maintained employers’ liability insurance at the time of the person’s exposure to asbestos; (section 2(1)(c));
  • the victim must not have received damages or a specified payment in respect of the disease and must not be eligible to receive a specified payment; (section 2(1)(e));
  • the person must be “unable to bring an action for damages in respect of the disease against any employer of the person or any insurer with whom such an employer maintained employers’ liability insurance (because they cannot be found or no longer exist or for any other reason)…”; (section 2(1)(d));

The Department for Work and Pensions estimates that 3,500 victims or their families qualify immediately.

The Mesothelioma Act, The Diffuse Mesothelioma Payment Scheme Regulations 2014 and The Diffuse Mesothelioma Payment Scheme (Amendment) Regulations 2014 make no reference to other diseases caused by asbestos such as asbestosis or pleural thickening.

 

Success Fees and After-the-Event Insurance Recoverability in Mesothelioma Claims

 The recoverability of a success fee in mesothelioma claims is yet to be abolished and the Mesothelioma Act, The Diffuse Mesothelioma Payment Scheme Regulations 2014 and The Diffuse Mesothelioma Payment Scheme (Amendment) Regulations 2014 do not deal with the implementation of section 48 of Legal Aid Sentencing and Punishment of Offenders Act 2012 in relation to sections 44 and 46 of Legal Aid Sentencing and Punishment of Offenders Act 2012, which would abolish the recoverability of a success fee from the Defendant.

 Section 48 of Legal Aid Sentencing and Punishment of Offenders Act 2012 requires that the Lord Chancellor carries out a review on the likely effect of sections 44 and 46 in relation to mesothelioma claims and publishes a report on the conclusions of this review before sections 44 and 46 can be brought into force in relation to mesothelioma claims. This report was published on 6 March 2014.

The Government has concluded that it is right to commence sections 44 and 46 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 for mesothelioma cases and proposes to synchronise the commencement of those sections with the making of the compensation payments under The Diffuse Mesothelioma Payment Scheme Regulations 2014 and The Diffuse Mesothelioma Payment Scheme (Amendment) Regulations 2014, see paragraph 119 of the Government’s response. This has not happened and no Commencement Order has been passed in order to abolish the recovery of success fees in mesothelioma claims.

The commencement of sections 44 and 46 will be implemented by way of a Commencement Order under section 151 Legal Aid Sentencing and Punishment of Offenders Act 2012.

The proposal to abolish recoverability of the success fee and the After-the-Event insurance premium is subject to Judicial Review proceedings, heard on 29 and 30 July 2014, brought on behalf of the Asbestos Victims’ Support Groups Forum UK.  Judgment will be handed down on 2 October 2014.

In any event the Government has indicated that abolition will not take place until December 2014 at the earliest.

 

Fixed Fees

The Government has decided not to proceed with the fixed fee scheme set out in its consultation paper – Reforming Mesothelioma Claims.

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Written by kerryunderwood

August 8, 2014 at 12:46 pm

Posted in Uncategorized

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