"Peers in the House of Lords have voted for sufferers of asbestos-related disease to be exempt from reforms to no win, no fee litigation.
The House of Lords yesterday agreed two amendments to the Legal Aid, Sentencing and Punishment of Offenders bill, allowing claimants continued access to conditional fee agreements.
An amendment for damages claims for respiratory disease arising from industrial exposure to a harmful substance to be exempt from the government’s proposed reforms, was passed by 189 votes to 158. A further amendment, to exempt claimants with a disease, condition or illness resulting from a breach of duty at work, scraped through by five votes.
Under the proposals, claimants would keep 100% of their damages whilst defendants cover their after-the-event insurance premium and lawyer’s success fee.
Crossbencher Lord Alton of Liverpool, who moved the first amendment, explained that without recoverable insurance premiums, these cases would not be able to proceed.
He said: ‘It is simply fallacious to argue that making claimants pay costs will mean that they will shop around for the best deal. Dying asbestos victims have already invested enough, and, given their pitiable condition, it is risible to suggest that they will shop around.
‘Terminally ill and dying people will simply not have the energy, and they have other things on their mind than looking for a lawyer to give them a better rate.’
Plaid Cymru’s Lord Wigley said: ‘The only people who will be squeezed as a result of these changes are those who are already suffering from fatal diseases and their families. That does not sound like justice to me.’
Government minister Lord McNally said it was wrong to create ‘classes of claimants’ in the pursuit of a fairer overall system, and he urged peers to accept LASPO reforms in full.
The Association of Personal Injury Lawyers (APIL) welcomed the amendment but said it does not go far enough.
'This is obviously good news for victims of industrial disease and it is imperative that the government does not overturn these important amendments when the debate returns to the House of Commons,' said Deborah Evans, chief executive of APIL.
'It is still, however, a devastating blow for justice that the same degree of consideration was not given to the proposals for other innocent victims of injury, whose lives may also have been shattered through no fault of their own.'
The amendments, following a series of government defeats on the provision of legal aid last week, will be returned to the House of Commons for further consideration. But Wednesday’s two votes were the only victories for opponents of part 2 of LASPO, which focuses on civil litigation reforms based on the Jackson report of 2010.
Further amendments on exemptions for international human rights cases and judicial reviews were not taken forward.
A bid to retain conditional fee agreements for cases involving companies in administration or liquidation - with the government often the main creditor - was also turned away, although McNally said ministers were looking at further proposals for this issue.
He added: ‘I do not believe it is acceptable to say that CFA reform is good for everyone else, but is not good for the government.’
Amendments to the government’s proposed ban on referral fees in personal injury cases were largely saved for the next reading of the bill in the House of Lords.
One amendment, exempting not-for-profit organisations from the ban, was debated but was not moved. McNally told the house there was a danger of trade unions, charities and others having a ‘sweetheart relationship’ with a firm of solicitors based on referral fees.
Earlier in the day, an amendment arguing that someone entitled to legal aid should be able to get advice in several ways, including through face-to-face meetings, passed by 28 votes.
Another amendment, blocking government plans to force asbestos victims to use some of their damages to pay legal bills, also succeeded.
Human rights charity Amnesty International said the reforms would place justice beyond the reach of individuals who are victims of human rights abuse, and offer impunity to corporations with greater resources to fight cases.
In a letter to peers, Kate Allen, director of Amnesty International UK, said: ‘It is outrageous that a government which professes to want to promote “responsible capitalism” is giving carte blanche to powerful goliath companies to abuse human rights.’
However Tracy Head, a partner at insurance firm Kennedys, said it was important the government’s measures were accepted in full rather than picked at in isolation. ‘It is vital to take a holistic approach and view the individual measures as part of a collective,’ she said.
Meanwhile, the Ministry of Justice has guaranteed that conditional fee agreements will be valid if taken out before the reforms come into force on 1 April 2013. An amendment tabled by the justice minister Lord McNally last week had implied that the changes, based on the 2010 Jackson report, could take effect retrospectively.
In the third sitting of the bill’s report stage on Monday, the government defeated amendments that would have kept public funding for all immigration matters and for debt case".