Michael Gove, Secretary of State for Justice, concedes defeat in landmark case over remission of fees for Mesothelioma sufferers

The Secretary of State for Justice, Michael Gove has conceded defeat in a landmark court case in the High Court today (3 July 2015) over the legal fees charged to sufferers of an asbestos related cancer.

The Asbestos Victims Support Groups Forum UK brought the case alongside Mesothelioma sufferers Ian Doughty and Carole Sloper, represented by law firm Leigh Day.

The legal action was brought after the Government implemented two pieces of legislation, which would have seen sufferers of mesothelioma, a tumour caused almost exclusively by asbestos, being charged £10,000 or close to it, to commence court proceedings against negligent employers.

These two orders were the Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015/576 (“the Fees Order”) and the Civil Proceedings Fees Order 2008/1053 as amended by the Courts and Tribunals Fee Remissions Order 2013/2302 (“the Remissions Order”).

Lawyers from Leigh Day argued on behalf of the Claimants that mesothelioma sufferers are typically of modest means. Their illness makes them disabled within the terms of the Equality Act 2010.

Invariably they will have recovered a ‘lump sum’ payment under the Pneumoconiosis Etc (Workers’ Compensation) Act, known as the PWC Act, of around £15,000; that means that, provided they have a nominal amount of other capital, they will fall outside the scope of those entitled to benefit from the fee remissions scheme which is £16,000.

Their claims for damages will generally be worth somewhere in the bracket of £150,000 to £300,000 so that they would have to meet an issue fee to the Courts of £10,000 or close to it.

The Claimants argued that for mesothelioma sufferers with a limited life expectancy giving up any of their disposable capital in the last months of their lives would prevent them from pursuing a claim.

The Claimants applied to the Court for permission to Judicially Review the matter on an expedited basis due to the short life expectancy of mesothelioma sufferers. They were granted permission to do so and a hearing date was set for 23 and 24 July 2015.

However, on the 2 July 2015, the Lord Chancellor agreed in a letter to ‘exclude’ from the definition of ‘disposable capital’ compensation awards made to mesothelioma sufferers under the PWC Act, the 2008 Scheme and the Diffuse Mesothelioma Payment Scheme.

He proposes to place an amending Statutory Instrument before Parliament and pending such amendment, to exercise his discretion in such a way as to treat such awards as excluded disposable capital for the purposes of fee remission and/or to interpret paragraph 10(j) of the Remissions Order in that way.

Therefore, it is important to note that, from 3 July 2015, ‘lump sum’ payments under the PWC Act will be ‘excluded’ from the calculation of ‘disposable capital’ when applying for fee remissions.

This will enable a substantial number of mesothelioma sufferers to be able to receive remission of their court issue fee.

The court order with the explanatory note and letter from the Lord Chancellor is here. This should be sent to the court with any application for fee remission.

Harminder Bains, Partner, Leigh Day said: “Initially the Government challenged the claimants arguments, stating that it was not 'unreasonable' for mesothelioma victims to use the lump sum payment to pay for court fees. A statement, which suggests an astonishingly uncaring attitude to the predicament of mesothelioma sufferers.

“By taking this legal action against the Government our clients have successfully ensured that mesothelioma sufferers will continue to have access to justice via the courts which the Lord Chancellor, by substantially increasing court fees, seems determined to prevent”.

Anthony Whitston on behalf of the Asbestos Victims Support Groups Forum UK said: “Yet again, dying mesothelioma sufferers who have very limited financial resources have had to take court action to get justice.

“In this case they should never have had to launch legal action to stop the Government charging £10,000 in court costs to claim compensation for the criminal negligence of employers, often Government as employer, who continued to expose them to asbestos decades after it was known to cause cancer.”

The legal team for the claimants was Harminder Bains & Jamie Beagent partners at Leigh Day , Robert Weir QC from Devereux Chambers, Jeremy Hyam and Kate Beattie from One Crown Office Row.