The burden of having to pay legal insurance premiums and costs following a successful mesothelioma claim may soon be lifted from terminally ill sufferers, their spouses and close family.

In a legal action brought against the Ministry of Justice (MoJ) by the Asbestos Victims’ Support Groups Forum UK, the High Court considered that a government review had not been “properly” undertaken. Consequently, attempts to deduct 25 per cent from the mesothelioma compensation awarded for legal costs were ruled as “unlawful.”

The ruling would undoubtedly bring considerable relief to the many mesothelioma victims and their loved ones who are fearful of being left financially vulnerable despite winning damages for their case. However, the hope may be short-lived as it seems likely that an appeal could be mounted against the verdict. According to a MoJ spokesman their view remains that the review had been “conducted fully and openly”, and they are considering their “next steps.”

Thrown back into turmoil

Mesothelioma victims and their families look to be thrown back into turmoil as their future financial security is again held in the balance by the wrangles over insurance payments and costs. Many were still reeling from the passing of the Mesothelioma Bill in January, which reduced payments under the proposed Diffuse Mesothelioma Payment Scheme (DMPS) to 75 per cent of the full amount, and excludes eligibility to anyone diagnosed with the incurable cancer before 25th July 2012.

Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was proposed by the government in 2012, pressure had been building from MPs, legal and medical bodies, and mesothelioma support groups to provide special exclusion for victims of the fatal, incurable asbestos cancer. In particular, sections 44 and 46 of the act, which targets the ‘no-win no-fee’ mechanism, aimed at preventing the winning party from recovering a success fee or the “After The Event” insurance premium from the losing side.

In December 2013, the government announced their decision to apply the LASPO provisions to mesothelioma cases, as of July 2014. However, under Section 48 of LASPO, mesothelioma claims are exempted until the Lord Chancellor has completed a review and the conclusions published in a report. In April 2014, a consultation was allowed to further examine the case for the exclusion of successful mesothelioma claimants, which would focus, among other issues, on the features which distinguish mesothelioma claims from other types of personal injury claims.

The need to settle a claim in the time remaining

A primary issue affecting mesothelioma victims and their families is the need to settle a claim in the time remaining to the patient. In most cases, the long incubation period of up to 50 years from initial asbestos exposure to the eventual emergence of asbestosis symptoms means that diagnosis often comes at a very late stage in the spread of the cancer. Invariably, life expectancy may be no more than 2 – 6 months.

One of the reasons given for the final, albeit restrictive terms agreed for the Mesothelioma Bill for the introduction of DMPS, was to ensure victims gain faster access to compensation in the short time they have remaining.

The continuing dispute over sections 44 and 46 of LASPO look set to once more to bring unnecessary fear and suffering to the terminally ill and their family carers, notwithstanding the added distress of not knowing if full financial security will be obtained before they succumb to the fatal disease.