Mesothelioma Bill [HL]

Lord German Excerpts

Monday 10th June 2013 Grand Committee

[Lord German]

Following that point, I will quote from a House of Commons document, Mesothelioma: Civil Court Claims, dated 22 March 2011. Under the section marked, “Claimants other than employees”, it reads as follows:

“In a number of cases, claims have been made by those, including family members, who have contracted mesothelioma following secondary exposure to asbestos. Each case is determined on its own facts”.

I dread to quote the following fact:

“For example, the Ministry of Defence admitted liability for the transmission of mesothelioma to Mrs Debbie Brewer, whose father died from small-cell lung cancer … after a career as a lagger at the Devonport Dockyard. He had greeted his daughter each evening whilst wearing dusty overalls from which she is believed to have inhaled the fibres that caused her disease”.

It goes on to cite another case. There have obviously been some cases. The one I have quoted admittedly has the Government as the employer, but there is one involving another company further on.

[Lord Freud]

My Lords, I am grateful for those observations. I am sure that we will have a chance to discuss this in more detail later. I now move to—

--- Later in debate ---

[Lord German]

My Lords, I am grateful to the noble Lord, Lord Howarth, for raising these issues, because it gives me an opportunity to raise some of the questions around legal costs and about the work that has to go into preparing a case under the proposed scheme.

My first question concerns civil cases and the information that has been provided to us in the tariff about the awards. Is it net or gross, and does it include the legal costs? Have they been excluded from the awards or do they come on top? If they are on top, we need to know what kind of money has been paid to lawyers when a claimant has been awarded in order to be able to judge whether the figures in the documentation before us are accurate. I had always assumed that the impact assessment would provide accurate information, so I was rather stunned to realise that the figures of £7,000 for a successful applicant, £9,000 for an unsuccessful applicant downgraded to £2,000, is something of a leap. If you are a sufferer or the relative of a sufferer, engaging a lawyer to do the preliminary work that is necessary to undertake this sort of action presents some sort of risk if the application fails. I want to explore that area as well.

The impact assessment gives an estimate of unsuccessful legal fees as £3 million out of a total of £24 million. A rough division shows that one case in every eight is unsuccessful, so if you are the one person out of the eight, presumably in a civil case action you are going to have to find those fees, unless of course you can find a no-win no-fee lawyer. I raised this issue at Second Reading. It seems that if you were about to embark upon this legal route, unless there is some form of support guaranteed at the end of it it would be the no-win no-fee lawyer to whom you would have to turn. I would be grateful if my noble friend could confirm that or tell us what alternatives there are.

The issue of evidence that requires a lawyer is quite substantial. Having now had the benefit of seeing the draft rules for the scheme, Part 1 paragraph 2 lists the evidence that an applicant may be required to provide. It is quite substantial and includes the history of employment and the companies to which the applicant is referring. In civil cases the courts have made it clear that you have to prove negligence, and three tests are given in the Appeal Court judgment. Three measures have to be satisfied in order to prove negligence. My second question, therefore, is: does the applicant have to prove negligence? That would be far more difficult to do in a case where the company or insurer is not present, unless the word of the applicant is determined to be acceptable.