Asbestos victims successfully challenge change in conditional fee/ATE costs rules


malignantmesothelioma1Whitston (Asbestos Victims Support Victims Support Groups Forum UK)  v Secretary of State for Justice and the Association of British Insurers (Interested Party) [2014] EWHC 3044 – read judgment

Jeremy Hyam and Kate Beattie of 1 Crown Office Row acted for the Claimant in this case. They had nothing to do with the writing of this post.

In April 2013 the rules permitting recovery of success fees under Conditional Fee Agreements (CFAs) and After The Event (ATE) insurance premiums changed in response to the Jackson proposals – with one exception, namely in respect of mesothelioma claims.

This case concerns the Lord Chancellor’s intention to bring costs rules in mesothelioma claims in line with other claims.

As many of you will know, mesothelioma is an industrial disease caused by the inhalation of asbestos. It is a rare form of cancer which  generally does not become apparent until many years after exposure to asbestos, a feature which at least in the past has led to real problems when mounting a claim against those responsible for the exposure. Once the cancer does become symptomatic its progression is rapid. Most sufferers survive for less than 12 months from the onset of symptoms. Yet the effects of the disease over the period from the onset of symptoms to death are hugely painful and debilitating. This combination of factors means that litigation in relation to mesothelioma is unusual in comparison with many other types of litigation involving personal injury or industrial disease. In almost every case in which a claim is made for damages for mesothelioma the effective defendant is an insurance company. Continue reading

Badgers’ expectations dashed

BadgerR (o.t.a. Badger Trust) v. SoS for Environment and Rural Affairs, Kenneth Parker J, Admin Ct, 29 August 2014 read judgement

This blog has covered the various twists and turns, both scientific and legal, of Defra’s attempts to reduce bovine TB by culling badgers: see the list of posts below. Today’s decision in the Administrative Court is the most recent.

You may remember a pilot cull in Somerset and Gloucester took place in 2013-14. Its target was to remove at least 70% of the badger population. By that standard, it failed massively. In March 2014, an Independent Expert Panel (IEP) concluded that in terms of effectiveness, shooting badgers removed less than 24.8% in Somerset and less than 37.1% in Gloucestershire. As for humaneness, something between 7.4% and 22.8% of badgers shot were still alive after 5 min – so the clean instant death much vaunted prior to the cull was by no means universal.

The current case concerned the future of the IEP in proposed “pilot” culls. The Badger Trust challenged Defra’s decision to extend culling elsewhere without keeping the IEP in place, and without further conclusions from the IEP to be taken into account on effectiveness and humaneness.

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Golf course judicial review case reversed on appeal

22-ep-cherkley-court-2-W1200Cherkley Campaign Ltd, (R o.t.a ) v. Longshot Cherkley Court Ltd, Court of Appeal, 7 May 2014 read judgment

 The Court of Appeal has reversed the robustly expressed view of Haddon-Cave J (see my post here)  that the grant of planning permission to a proposed “exclusive” golf club in Surrey should be quashed.

 The local planning authority had originally granted permission by the barest of majorities – 10-9, and against its planning officer’s recommendation. The judge had thought that the authority’s decision was irrational, and had misinterpreted or misapplied the concept of “need” in the applicable planning policies.

The Court of Appeal roundly disagreed with these and the other grounds on which the judge quashed the decision.

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Not unlawful to refuse egg freezing therapy for Crohn’s sufferer

bigstock-Boiled-Or-Raw-Egg-8015047Rose, R (on the application of) v Thanet Clinical Commissioning Group [2014] EWHC 1182 (Admin) 15 April 2014 – read judgment

Jeremy Hyam of 1 Crown Office Row represented the claimant in this case. He had nothing to do with the writing of this post.

There are times when individual need comes up against the inflexible principles of the law and the outcome seems unjustifiably harsh. This is just such a case – where a relatively modest claim based on individual clinical need was refused with no breach of public law principles.  As it happens, since the Court rejected her case, the the young woman concerned has been offered private support for the therapy she was seeking. The case is nevertheless an interesting illustration of the sometimes difficult “fit” between principles of public law and the policy decisions behind the allocation of NHS resources. Continue reading

Judicial Review Reform: All about the money, money, money?  – Angela Patrick

RCJ restricted accessAs MPs and Peers consider the Civil Legal Aid (Remuneration)(Amendment)(No 3) Regulations and the Criminal Justice and Courts Bill, Angela Patrick, Director of Human Rights Policy at JUSTICE considers the Lord Chancellor’s view that proposed judicial review changes do not restrict access to judicial review remedies or restrict the rule of law.

Tomorrow (Thursday), MPs will consider a series of detailed amendments to the Government’s proposed changes to judicial review in the Criminal Justice and Courts Bill.  The proposed changes to legal aid for judicial review are not up for debate. The Regulations, which will restrict legal aid to only those cases granted permission, are already made and due to come into force on 22 April.  There will be no debate on those changes, unless MPs and Peers demand one.

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Evidence to Parliament on Criminal Justice and Courts Bill

westminsterI will be giving evidence tomorrow at around 3pm to the Public Bill Committee scrutinising the Criminal Justice and Courts Bill.

I will be giving evidence along with Nicola Mackintosh, Nick Armstrong and Michael Fordham QC, on the potential impact of the Bill on Judicial Review. The session should be available to view online live here. The full programme, which should be very interesting, is listed here.

For more on the Bill, see this recent post by JUSTICE’s Angela Patrick and this one by David Hart QC.

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Don’t be fooled by the “concessions”, there is still a real threat to Judicial Review

kite grayling (UK Human Rights Blog)The Ministry of Justice has published its response to the consultation on the latest round of Judicial Review reforms. The full response is here and the Criminal Justice and Courts Bill is here.

In my post on the first draft of the MoJ proposals, I warned to beware of kite flyers, and said:

Sometimes, especially with Government consultations, a kite is raised in order to distract from what is really happening on the ground. As with the last phase of JR reform, the rhetoric is more extreme than the reality.

Without wanting to say “I told you so” (oops), don’t be fooled by the seeming concessions. There is still a lot to be concerned about in what remains, as there was in the last round of changes – as Dr Mark Elliott points out, JR, like the NHS (and Communist Russia), now seems to be in a state of perpetual reform.  I do not intend here to analyse the proposals in detail, but I will point you towards some excellent early articles.

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