Mesothelioma (Insurance Premiums)

Andy Slaughter Excerpts

Wednesday 29th January 2014 Westminster Hall

[Mr Andy Slaughter (Hammersmith) (Lab)]

I too want to begin by paying my respects to Paul Goggins. As many hon. Members have said, the issue that we are debating was hugely important to him. When I was researching the debate, his name ran through matters to do with mesothelioma like a golden thread—through the LASPO Act and the Mesothelioma Bill, and repeated questions to Ministers at Justice and other questions. Indeed, the last communication that I had with him, by e-mail on 19 December, was proposing this debate, and agreeing that we needed to debate the specific issue, which we had been unable to resolve through the Bill or questions. As my hon. Friend the Member for Middlesbrough (Andy McDonald) said, it is most likely that Paul would have introduced the debate. We miss him very much. Nothing sums up as well as the present issue his humanity and his assiduousness as a parliamentarian.

I thank my hon. Friend the Member for Middlesbrough, who set out the case so clearly, and other hon. Members who have spoken: my hon. Friend the Member for Wansbeck (Ian Lavery), who has just spoken, and the hon. Member for Chatham and Aylesford (Tracey Crouch). It is not the first time that either of them have taken part in such debates; they have a fantastic track record on such issues. I thank, also, my hon. Friend the Member for Stretford and Urmston (Kate Green) and the right hon. Member for Belfast North (Mr Dodds). Many other hon. Members, such as my hon. Friends the Members for Blaydon (Mr Anderson) and for Llanelli (Nia Griffith), wanted to take part but were unable to be here.

The issue matters to hon. Members of all parties in both Houses. Many of the achievements that got us where we are today came through the efforts of Lord Alton, supported by Lord Beecham and Lord Bach and of course the late Lord Newton. Finally, although he has already been spoken of, Tony Whitston should be mentioned again. He co-ordinates the Asbestos Victims Support Groups Forum. A huge amount of good work is being done on behalf of mesothelioma sufferers, including support from many claimant law firms, but I am afraid some of the arguments fall on deaf ears.

This debate is slightly different from some Westminster Hall debates, because it is not so much a general discussion as an opportunity to ask the Minister for specific action and to answer specific questions on quite a narrow point. The reason for seeking such a debate was that satisfaction has not been gained through other channels—in the Mesothelioma Bill and repeated questions on the Floor of the House—and through correspondence, as has been stated. I hope that the Minister will answer those questions and tell us when the report, which the hon. Member for Chatham and Aylesford mentioned, will be available to us.

I do not think I need to talk about the general issue of mesothelioma, other than to say that it is a long-tail disease, the symptoms of which may not show for decades. Once it has been diagnosed, death is an almost certain consequence, usually within months rather than years, and it causes terrible suffering to the victims and to their families. That is why it has been treated as a particular, special case.

Currently, there are about 2,300 deaths per year and that is still rising, although those will peak because of the curve in the mortality that comes from the negligent behaviour of employers over a period of time. The number of deaths has been growing steadily since the 1970s and will peak at the end of this decade, but there are still tens of thousands of people in this country alone who will die from the disease.

The debate pack briefings were principally concerned—not surprisingly, as it has been in the news so much recently—with the Mesothelioma Bill. It has already been made clear that that is a wholly discrete issue from what we are talking about today. I was struck by how important this issue is to the public. The pack contains cuttings from newspapers from all around the country, not just from the old industrial areas. Real anger comes through in the personal case histories, and from commentators, about how the Government have been selling mesothelioma victims short.

I will mention just one case that illustrates the important point that we are debating. The Evening Standard last Friday published the case of Monica Haxton:

“A grandmother whose terminal cancer was caused by washing her husband’s asbestos-laden overalls today described her ‘relief and peace of mind’ after being awarded £700,000 damages in a landmark case.

Monica Haxton, 66, lost her husband Ronald to mesothelioma …caused by his years spent working as an electrician in Balham.

Over the years, she said she spent hours washing her husband’s boilersuit after his shifts at Philips Electronics where he was exposed to asbestos dust while dismantling boilers.

Two years after his death in July 2009, she began suffering the same symptoms and was diagnosed with the same cancer in January 2012.

But Mrs Haxton, from Sutton, was caught up in a protracted legal dispute over the scale of her damages which has only now been resolved in the Appeal Court.

The mother of four said: ‘Ronald and I were married for 45 years and he worked there for 42 years, but the negligence of that company by failing to protect us from asbestos exposure has ruined both our lives.’”

The Standard reported:

“Mrs Haxton’s lawyers helped secure her payout after the company’s insurer admitted full responsibility for her husband’s cancer but refused her a second settlement for negligence over her own terminal cancer.

They claimed that because her life expectancy had been reduced she was not entitled to the extra damages.”

That shows something that insurers often deny: the complexity of some mesothelioma cases—causation often can be an issue—and the lengths to which some insurers will go to defend claims. The point that the insurers made in Mrs Haxton’s case is that, because she was going to die soon because of mesothelioma, she was not entitled to the same amount of damages as she would have received if she were a dependant of her husband who had not been affected and lived longer.

Thankfully, the Court of Appeal ruled entirely in Mrs Haxton’s favour. The £700,000 awarded will perhaps be of some assistance to her family, but it is no comfort to that family that both parents will have died from this terrible disease. That is the type of case we are dealing with and that is why there were arguments with the Government, throughout the progress of the Legal Aid, Sentencing and Punishment of Offenders Bill in both Houses, about why that exception should be made.

Votes as well as arguments went on in both Houses. In the other place, votes were successful, in the sense that the Government were defeated. The final defeat of the Government on this issue took place on 23 April 2012, by 205 votes to 214, on a motion on an amendment moved by Lord Alton. Consequently, on the following day in the ping-pong process, the then Minister made this concession:

“I can now give the House the assurance that we will not commence the relevant provisions in clause 43, on success fees, and clause 45, on after-the-event insurance, in respect of mesothelioma claims in April next year. Rather, we will implement the clauses in respect of those claims at a later date, once we are satisfied on the way forward for those who are unable to trace their employer’s insurer. The amendment commits the Lord Chancellor to carrying out a review of the likely effect of the clauses in relation to mesothelioma proceedings and to publish a report before those clauses are implemented.”

Hon. Members from all parties did not entirely accept what the Minister said. The hon. Member for St Ives (Andrew George), who is rightly sceptical on such occasions, said:

“On the point about the delay until the review has been undertaken, is that merely a delay or is it a genuine review? If it is a review, what will it consider and will he give an indication of its timetable?”

The Minister replied:

“Given the timing of this development, we have not thought through the exact procedures of the review, but it will certainly be undertaken before we move to ending the provisions that remain.”

That, at least was honest.

Other hon. Members made speeches, raising concerns, including the hon. Member for Chatham and Aylesford and Paul Goggins. The shadow Lord Chancellor, my right hon. Friend the Member for Tooting (Sadiq Khan), also mentioned the review and was intervened on by the hon. Member for St Ives, who said:

“The right hon. Gentleman will have heard my intervention on the Minister, when I sought to distinguish between a mere delay in the implementation of the policy and a genuine review. I hoped that the Minister would give me some indication that if the findings of a review required the Government’s policy to be amended in some way, there would be an opportunity for a rethink.”

The shadow Lord Chancellor, showing unusual confidence in the Government, said:

“I believe that this will be a genuine review…but the report needs to be based on proper evidence”.—[Official Report, 24 April 2012; Vol. 543, c. 831, 837.]

The concession was accepted here and in the other place, in good faith, because it was believed that there would be a proper review and a report. However, on 24 July 2013, considerably later, the consultation paper, “Reforming Mesothelioma Claims”, was published. That consultation was primarily about the proposed pre-action protocol, fixed cost proposals and the electronic gateway. Tagged on to the end of that paper—it really was tagged on to the end, at part 4 of that report—was a heading, “Review under section 48 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.” The Minister was not in post at the time, but I hope that he has read it.

That peculiar document begins:

“This part of the consultation paper”

examines

“the review…The Government believes that other changes set out in this consultation, and the changes to the statutory framework for funding of litigation described above, together with the changes being introduced in the Mesothelioma Bill should make it possible, and appropriate, for sections 44 and 46 of the LASPO Act to be brought into force for mesothelioma claims at the same time as those other changes.”

It talked about a review but did not appear to be the review. The question that it posed at the end bore no relation to a review taking place. The review, if it claimed to be a review, was flawed. As has been the case throughout, it appears to have been convenient for the Government to muddle through, to let time elapse and to go back to the position they wanted in the first place.

It gets worse, because we then come to the written ministerial statement of 4 December in which the Minister blithely said:

“The Government have carefully considered the responses and have concluded that they intend to apply sections 44 and 46 of the LASPO Act to mesothelioma cases, as for all other personal injury cases.”—[Official Report, 4 December 2013; Vol. 571, c. 56WS.]

Extraordinarily, the report was not published at the same time as the statement, and it has still not been published, so we do not know what the reasons are. The statement really was a “we are here because we are here” answer. The Minister said, “We are going to do what we were going to do all along,” ignoring all the objections, the votes and the assurances that were given during the passage of the LASPO Act.

Further attempts have been made to ascertain where the Government are on this, and the issue has come up repeatedly at Justice questions. My hon. Friend the Member for Stretford and Urmston has brought it up. At the most recent Justice questions on 17 December, I raised the issue with the Secretary of State, who replied:

“Of course this is not a new problem, and in many areas we are picking up on things that were not done by the previous Government. We will bring forward a further consultation on these issues shortly.”

I do not know whether that is right, and the Minister will no doubt enlighten us on whether there will be a further consultation, but when Paul Goggins asked the same question later in the same Question Time, the Minister replied:

“We had a consultation, and we have come up with the preliminary report. As was said earlier, we will come up with a fuller report in due course.”—[Official Report, 17 December 2013; Vol. 572, c. 610, 618.]

Again, I do not know what that preliminary report is, and I do not know when the fuller report will come to light, but none of that helps to clarify the situation.

I will not take up much more time, but there has not been a proper review. My hon. Friend the Member for Wansbeck read out the question that purported to be the review:

“Do you agree that sections 44 and 46 of the LASPO Act 2012 should be brought into force in relation to mesothelioma claims, in the light of the proposed reforms described in this consultation, the increase in general damages and costs protection described above, and the Mesothelioma Bill?”

That is not a proper review, and it is not the review that Parliament was promised.

Two months after the written ministerial statement announced the decision, the report has still not been published. Most importantly, the Government have conceded that their criteria for not making mesothelioma a special case no longer apply. They conceded that point on the Mesothelioma Bill, as they did when they finally answered the letter from my hon. Friend the Member for Stretford and Urmston. A similar response was given to my noble Friend Lord Beecham and Tony Whitston, which made it clear that the only link between the LASPO provisions and the Mesothelioma Bill is that they might happen at the same time, in July 2014. Well, the World cup final is happening in July 2014, so it has as much to do with LASPO as the Mesothelioma Bill in that respect.

The second point that has been made, which I will not labour, is that, somehow, it was right to go ahead with applying sections 44 and 46 to mesothelioma claims because of the other changes that were being made. Under the influence of the Association of British Insurers, as always, the Government were pretending that the pre-action protocol, the gateway and the fixed costs would actually help mesothelioma sufferers. Let us be fair to the Government, because for once they did not go down the route of pursuing the ABI agenda. I am pleased to say that on some issues, such as the changes to the small claims limit for whiplash—with which the Government are not going ahead either—the Government are not slavishly following the insurance industry’s agenda, as they have previously. They are following that agenda most of the time, but not all the time.

Having now resiled from those positions, the Government cannot rely on the changes as a reason for not going ahead with the review and for not persisting with mesothelioma as a special case. All they are left with is the proposed reforms described in the consultation. That is a completely circular argument that takes us back to exactly where we were when the Government tried in the first place to say that the changes to CFAs and ATE premiums should apply to mesothelioma as they do to everything else. All the Government are saying is, “We were right all along. We had to say something to get our legislation through, but we never had any intention of complying with it. We have gone forward.”

Finally, I remind the Minister of the points made by Paul Goggins during our consideration of both the LASPO Act and the Mesothelioma Bill. The problem with the new cost regime is, first, that a successful claimant will pay up to 25% of their general damages as success fees. Secondly, to mitigate that attack on their damages, a claimant will have to shop around for a cheaper lawyer. Thirdly, the qualified one-way costs shifting does not provide a complete defence against costs. It does not address disbursement, part 36 offers or issues where a court decides that a claim has been misconducted. Finally, there are far fewer lawyers who will be able under the new regime to take on such cases. It may be that not only will people have to pay their own costs out of the damages but they may not be able to bring the case at all. That is without going into the problems of complexity and difficulty that, under the most difficult circumstances, mesothelioma claimants already have to deal with, as my hon. Friend the Member for Wansbeck and the hon. Member for Chatham and Aylesford have said.

With all those problems, which affect other personal injury and civil claims but which many Members of both Houses believe particularly apply in mesothelioma cases, the Government should honour their commitment to doing a proper review and a proper report explaining why, if they wish to persist with applying sections 44 and 46, they intend to do so. They should not do that in such a flippant and offhand way.

Perhaps the Minister could take the Secretary of State’s hint and go back to consult properly by calling for evidence on exactly what will be the consequences of applying sections 44 and 46. If he did that, he would find overwhelming evidence that mesothelioma sufferers are a particular case and that the Government’s commitments should be honoured. I end on that point, but I ask the Minister to tell us what the Government’s plans are, to justify the Government’s intended actions and to tell us whether he will now go away, properly consider the matter and honour the pledges made by his predecessors when the LASPO Act was considered by both Houses.