Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Avebury Excerpts

Monday 30th January 2012 Lords Chamber

[Lord Avebury]

My Lords, the noble Lord, Lord Alton, referred to the curtain-raiser debate we had a few hours ago in which, among others, the noble Lord, Lord Newton, spoke. He told your Lordships that the nature and problems of mesothelioma called for special treatment. It took us a very long time to recognise the immense dangers to public health caused by mesothelioma. It took us even longer after that to take steps to ban the use of asbestos and, finally, to get under way with proper means of compensation for the victims of this frightful disease.

In the 1970s I was privileged to have a lot to do with the late Nancy Tait, who was described in her Guardian obituary two years ago as a,

“tenacious campaigner for the victims of asbestos diseases”.

Nancy was the founder of the Society for the Prevention of Asbestosis and Industrial Diseases, which lobbied hard for tighter controls on asbestos, and she fought for the rights of victims to adequate compensation. In 1976, the Silbury Fund published a booklet entitled “Asbestos Kills”, written by Nancy, exposing the failure of Governments to act against the risks, even though the Department of Health had known, at least from 1968 onwards, that,

“mesothelioma can be produced by slight exposures, and … We must assume that no amount of exposure is completely free from risk”.

Water pipes were still being made of asbestos cement; electric toasters were still being made with the element wound around a piece of asbestos, and in people’s homes, sheet asbestos was being cut for partitions, to block fireplaces or to line doors. Thirty-six years later, people are still being diagnosed with mesothelioma, which is, as we have heard, an extremely unpleasant disease which kills the sufferer within an average of something like 12 months from the date of diagnosis, as the noble Lord, Lord Alton, has said.

Now the Government have decided, according to yesterday’s Independent on Sunday, that in a major survey to be undertaken of England’s 23,000 schools to plan a huge refurbishment programme, asbestos is to be ignored because of cost implications. The system-built schools of the 1960s were riddled with amosite brown asbestos sheeting, which is one of the reasons why we have the highest incidence of deaths from mesothelioma in the world. As a result of this possibly illegal exclusion from the survey, compounded by the stripping of funding needed by local authorities to carry out their survey responsibilities under the Control of Asbestos Regulations, instead of the decline in mesothelioma deaths—the noble Lord, Lord Alton, said that that decline was expected to occur from 2012 onwards—as they tail off over the next 40 years, they may continue for the rest of the century.

I urge your Lordships to look at the website of Mesothelioma UK, the resource centre that provides information and support to patients and carers, allowing them to exchange their experiences and thus to cope better with the situation they face. The practice nurse in that organisation, Liz Darlason, told me that in 2004, when she started work at Mesothelioma UK, there were 1,850 new cases, and in 2010 there were 2,500. The idea that all these people sentenced to a lingering death should have to pay towards the legal costs of making a claim for compensation is intolerable, and some 400 hostile comments from patients and their families on this provision have been received by the Asbestos Victims Support Groups Forum UK, chaired by the eminent Tony Whitston, who has been mentioned by the noble Lord, Lord Alton, and has briefed many of your Lordships for this debate.

Industrial injury disease benefit payments numbered 3,940 in 2010, of which 3,680 were for asbestos-related illness. More than half of these were mesothelioma cases, and the figure has increased, year on year, for decades. As the noble Lord explained, the reason for this is that mesothelioma can take 40 or 50 years or more to develop after exposure to asbestos, and patients are still succumbing to the disease long after its use was first prohibited in 1985. This disease is fatal on average within 12 months of diagnosis, and only one in four survive for two years or more.

Due to the time that it takes for the disease to emerge, it is sometimes difficult to trace the employer against which a claim is to be lodged; and before 1972, when employers’ liability insurance became compulsory, some 10 per cent of such employers were not insured. Urged on by the All-Party Parliamentary Group on Occupational Safety and Health, the Government at last agreed to set up an employers’ liability insurance bureau, ELIB, analogous to the Motor Insurers’ Bureau that compensates victims of road accidents involving uninsured drivers. The consultation on the proposal closed in May 2010 but the DWP has sat on it since, even though all respondents were in favour of the ELIB. The asbestos victims forum had a meeting with my noble friend Lord Freud to press him to act, and I should be grateful if the Minister could tell your Lordships what needs to be done to get the ELIB under way.

I gather that the Government may be waiting to see what happens in the so-called trigger case in the Supreme Court before deciding on whether the liability of an employer’s insurer to indemnify the insured dates from a sufferer’s exposure to asbestos or from the onset of mesothelioma. The case is likely to be heard in May, and if the next step is primary legislation, it would not be ready for the next Session of Parliament. We could be talking about some time in 2013 before these forgotten victims are able to claim compensation, and those who have already been diagnosed by that time will no doubt be excluded by reason of retrospection.

The typical mesothelioma patient will have been exposed to asbestos in their early adult life. Thirty or 40 years later, they experience shortness of breath and chest pain, and visit their GP. Painkillers or antibiotics may mask the problems, until the GP finally calls for an X-ray, which then confirms a pleural effusion—a build-up of fluid between the layers of tissue that line the lungs and chest cavity. However, this is not an easy disease to diagnose, and several further investigations involving procedures such as thoracentesis—the extraction of fluid from the pleural cavity using a cannula—may be needed before the disease can be confirmed. From then on, chemotherapy is the only treatment that has proven to be effective in ensuring some degree of survival in randomised and controlled trials, although claims are made for surgery combined with chemotherapy and radiation, which is referred to as trimodality therapy, among patients with favourable prognostic factors. As the disease takes hold, the patient has to cope with extreme shortness of breath, intractable pain and debility.

Those are the dramatically unpleasant experiences of mesothelioma patients, who know that inevitably they face death within a few months anyway. They are trying to cope with the physical and emotional phenomena of a terminal illness, vividly described in the literature of Macmillan Cancer Support, and your Lordships can imagine the likely frame of mind of such a person trying to put in a claim for compensation. Many have said they would not have incurred the extra worry and anxiety of claiming if the payment of costs had been required at the time, and it is surely unconscionable to dock someone who is terminally ill of up to a quarter of the damages he may be awarded.

Unless these amendments are accepted, the victim will have to pay two separate fees. Initially, there is the after the event insurance, amounting, as the noble Lord said, to an average of £2,300, to indemnify the claimant against having to pay the defendant's costs if the claim is lost, which up to now has been recoverable from the losing defendant but is now to be deducted from the claimant's award. Then there is the success fee, the amount of which is to be specified in regulations, understood to be 27.5 per cent of base costs—the cost actually incurred by the solicitor in conducting the claim. This has also been paid by the defendant in the past, but is now to be borne by the claimant. Assuming that the case is a simple one, with base costs of £10,000, the claimant would pay the solicitor £2,750 out of the total sum agreed. The knowledge that he is liable to pay that sum on top of the ATE insurance fee will be enough to deter many terminally ill patients from bothering to pursue their claim.

Suppose the defendant makes an offer that is manifestly inadequate or there are complex issues that can be determined only by the court, one of which happens in just 2 per cent of cases—only one in 50 cases goes to trial? The base costs rise steeply, with counsel's fees and court costs, and a further payment of ATE insurance, many times larger than the original £2,300, which the claimant now has to pay. The premium for one of the claimants in the Sienkiewicz case, decided in the Supreme Court in March 2011, was £219,000, and it is obvious that now the claimant is responsible for ATE, no test case of that kind will ever be taken again.

Another factor comes into play at that point. The defence solicitor is entitled to 100 per cent of base costs as success fee whichever way the case goes, but the downside from their point of view is that if they lose, they probably get nothing. In the Sienkiewicz case, the solicitors for one of the two parties involved incurred base costs of £300,000 and there was a success fee of the same amount. The success fee is capped under these proposals at 25 per cent of general damages, providing the solicitor with a substantial disincentive to pursue cases in which success is less than certain. There will be a strong temptation for the solicitor to recommend settling for what may be a totally inadequate sum, and the victim, in the last few months of his life and probably enduring severe pain, will not have the strength or the will for a long and traumatic court case.

None of that is revealed by the Explanatory Memorandum, and I deplore the Government's failure to spell it out. That means that solicitors will be deterred from pursuing cases where the defendant has even a small chance of winning, and there will be temptation to settle for what may be a totally inadequate offer.

Let us think again about this mean-spirited, callous fine imposed on the victims of mesothelioma, asbestos cancer and other very nasty respiratory diseases. It is wrong to deter people from pursuing claims they have every chance of winning, and immoral to take thousands of pounds from the amounts they win. I shall be very surprised if, now that the facts are out in the open, the Government do not beat a hasty retreat before they suffer a defeat on Report.