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Asbestos in Schools
Legal Aid, Sentencing and Punishment of Offenders Bill
On 30th January the Lords debated the Legal Aid Bill. The law was meant to eliminate frivolous and fraudulent claims, such as many whiplash claims from car accidents. However the bill fails to properly address these claims, instead it militates heavily against legitimate mesothelioma claims, so that as it stands it will be far less likely that lawyers will be able to take on the more difficult mesothelioma cases. Which invariably includes most cases involving asbestos exposure in schools. Under the new law it is for instance most unlikely that Dianne Willmore’s case could have been brought before the courts.
Lord Alton of Liverpool tabled an amendment to the bill that would exempt mesothelioma claims. He and a number of other Lords argued strongly for the amendment. However the Minister refused to amend the bill.
EXTRACTS FROM THE DEBATE
Committee (6th Day) (Continued) Monday January 30th 2012
Moved by Lord Alton of Liverpool
The proposed amendment: 30 Jan 2012 137A: Clause 43, page 30, line 23 The amendments made by this section do not apply in relation to proceedings which include a claim for damages for respiratory disease or illness (whether or not resulting in death) arising from industrial exposure to harmful substance."
Lord Alton of Liverpool. Column 1416 At Second Reading, I cited the experience of the President of the Liverpool Law Society, Mr Norman Jones, and a benchmark case which he pursued to the Supreme Court. Hugely significant in the development of the common law concerning mesothelioma, the judgment has given hope to many thousands of asbestos victims who probably would not been entitled to compensation had the Supreme Court appeal by the defendants not been dismissed. The judgment in Sienkiewicz and Greif (UK) Ltd was given in the Supreme Court on March 2011. Mr. Jones handled the action under a conditional fee agreement. There were CFAs for the county court proceedings, the Court of Appeal and the Supreme Court. Norman Jones told me:
"Without the 100 per cent success fee payable under the CFAs the risks of handling this case would have been totally beyond my firm".
He said that had the new regime been in place and the case had been lost, putting it bluntly,
"my firm may have been facing bankruptcy!".
Under the new dispensation, lawyers such as Mr Jones would simply not be prepared to act on behalf of asbestos victims. All the dice would be loaded against them....
Column 1418 ... As currently drafted, the Bill misses the point. It purports to tackle a compensation culture, fraudulent and frivolous claims and disproportionate costs. Ministers have acknowledged that there is only the perception of a compensation culture, but, that aside, the Bill does nothing to tackle the identified problems such as fraudulent whiplash claims, which I am told total a staggering £2 billion annually, while it highlights issues such as this one. Mr Nick Starling, the director-general of the Association of British Insurers, giving evidence to the Bill Committee in the House of Commons, made the point that the Bill is tackling the wrong target; it should be about the £2 billion of whiplash claims, by far the greatest in Europe, not,
"people who have been injured or they are ill and it is not their fault".
It is cases such as mesothelioma, he said, that need,
"speedy and correct redress".-[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 14/7/11; col. 148.]
Why then do these three clauses shoot the wrong fox, a metaphor used earlier by the Minister, and put at risk litigants who have, as Mr Starling said, genuine claims and have been injured or are ill?....
Column 1419 When he was Lord Chief Justice, Lord Bingham said that,
"the laws of our country exist for the benefit of the poor as well as the rich; that equality before the law is a pretence if some citizens can assert and protect their rights and others cannot; that the rule of law, to be meaningful, must ensure that justice is available to all".
If that principle is not to be extended to victims of mesothelioma, to whom is it to apply? There are key questions which the Government need to answer. How would it be possible to bring a fraudulent mesothelioma case? How would it be possible to bring a frivolous mesothelioma case? The Minister knows the answers as well as I do. The answers are self-evident, which is why, as a matter of basic natural justice, I hope that the Government will be persuaded to accept these amendments and that noble Lords will give them their support. I beg to move.
The Minister of State, Ministry of Justice (Lord McNally) 1430 : My Lords, it is a long time since I pointed out that we had a whole series of amendments, each taking a different aspect of the Bill's architecture, suggesting that on this case the Government should make an exception. Of course, had we conceded all afternoon, nothing would be left of the Government's architecture.
This is not only about public funds, but it is about how you create-to use this term again-an architecture for this type of litigation that squeezes out from the system the inflation that went to the lawyers. .. In trying to respond to that problem, I am fully aware of the hard cases, and I have spent most of the afternoon dealing with them. Of course hard cases are difficult to argue, but that is the central issue that we are trying to address. To succeed, we will have to stand firm against some of these hard cases, I am afraid.
Column 1433...I think that I have said all that I am going to say on this. It is a tough case, but it would be just another concession within the range of issues that we have discussed today. The noble Lord, Lord Bach, almost gave the game away in saying, "Well, you've made the clinical negligence concession; why can't you make this concession?" It would then be another, and then another, and then another, and Jackson would disappear....
I do not think that it is necessary, therefore, to make the exception that is being argued for. It is admittedly being argued for very powerfully, but it is not enough to convince the Government.
Lord Alton of Liverpool. Column 1436 It is worth remembering that the mesothelioma death rate in this country is the highest in the world. That is why I do not think that the noble Lord, Lord Avebury, was overstating the case when he said that what we are doing is intolerable. He said that it is unconscionable, mean-spirited, callous and immoral.
Although it is my intention now to withdraw this amendment, I give notice that it is also my intention to return with these amendments on Report if we are unable to make progress on this issue. With the leave of the Committee, I beg leave to withdraw the amendment.
The following is an extract where the particular problems associated with asbestos in schools was raised:
Lord Avebury. Column 1420 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.