Dr Nicholas Bevan

Dr Nicholas Bevan

Wednesday, 8 October 2014


R (on the application of Whitson) v Secretary of State for Justice [2014] EWHC 3044 (Admin)

On 2 October Mr Justice Davies ruled that the Lord Chancellor’s decision to abolish the entitlement of mesothelioma victims to recover their solicitors’ success fees and after the event insurance premiums from defending insurers was unlawful. 

Mesothelioma is a fatal disease which is caused by exposure to asbestos dust.  In 2011 it was responsible for 2,291 deaths in the UK, and the number of cases each year is expected to increase further.  Due to the difficulty in establishing liability, proving causation and the complications in identifying often numerous different employers and in tracing their insurers, these claims were exempted by section 48 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) from sections 44 to 46 LASPO that abolished a successful claimant’s entitlement to recover these additional liabilities from a defendant. 

Section 48(1) of LASPO provided as follows:
‘Sections 44 and 46 may not be brought into force in relation to proceedings relating to a claim for damages in respect of diffuse mesothelioma until the Lord Chancellor has (a) carried out a review of the likely effect of those sections in relation to such proceedings, and (b) published a report of the conclusions of the review.‘

Rather than undertaking the proper and fair review required by section 48, the Lord Chancellor’s decided instead dispose of this duty by bolting on a question to the 2012 consultation dealing with procedural aspects of mesothelioma claims.  It invited consultees to comment on whether the exemption should be removed but this was predicated on various other proposals being implemented, which did not eventually happen.  This issue was never addressed directly and on its own and no proper attempt was made to research the likely consequences.

Mr Whitson of the Asbestos Victims Support Groups Forum UK brought a Judicial review of the decision to remove the exemption.  It disputed the assumptions made in the Government’s impact assessment and argued that for from being cost neutral to the victims affected the Government’s reforms would leave this particularly vulnerable class of victim loosing tens of thousands of pounds in unrecoverable costs; effectively denying them their full compensatory entitlement.

The judge concluded that the Lord Chancellor had failed to carry out the proper review that section 48 required.  He concluded that ‘no reasonable Lord Chancellor faced with the duty imposed on him by section 48 of the Act would have considered that the exercise in fact carried out fulfilled that duty’.  Accordingly, the Lord Chancellor’s decision of December 2013 to abolish the mesothelioma exemption was annulled. 

The appointment of Chris Grayling as Lord Chancellor in 2012 was controversial at the time as it broke with a long established convention that the head of the legal profession should come from one of the legal professions.  Instead we now have a Ministry of Justice department controlled by career politicians, with all that implies.

The Association of British Insurers, intervening, argued that the Lord Chancellor’s decision should be upheld as ‘the Lord Chancellor would be bound to make the same decision after a review as required by Section 48’.  This revealing statement illustrates the ABI’s role as the √©minence grise behind much of the Governments policy making in this area.  In July 2014 a Parliamentary Justice Committee Report also considered the appropriateness of the Lord Chancellor’s decision to remove the mesothelioma exception.  It found that the outcome of the Chancellor’s flawed review had always been a foregone conclusion.  It brought to light the fact that the ABI had already reached a secret understanding with the Government in July 2012.  The committee expressed concerns that the Government had not been transparent or open about its true agenda, either with the committee itself or with other interested parties, and that it had not been even handed in its consultation.  

Any further consultation is likely prove to be a tendentious exercise, when such powerful interest groups continue to enjoy such extensive influence and control of government policy.

Further evidence of the insurance lobby unconstitutional influence can be found in last week’s New Law Journal opinion piece: Bad Law.

Saturday, 4 October 2014


Follow this blog to stay ahead

In February 2013 I explained why our national law in this area was defective and why it does not comply with European Law in a four-part series of New Law Journal articles, On the Right Road?; part 2; part 3 and part 4.  See also my article Minor Collision, why children can be hardest hit in APIL’s PI Focus, May 2014. 

I was the first to report on the recent ruling in Delaney v Secretary of State for Transport 2014 EWHC 1785 (QB), (see also my article in the Journal of Personal Injury Law, A World Turned Upside Down) in which Mr Justice Jay held that the minister was liable for a serious breach of European law that had wrongly denied an accident victim his proper compensatory entitlement.  

I was also the first to provide comment and analysis,  in this blog, of the European Court of Justice’s landmark decision in Damijan Vnuk (Case C-162/13), Vnuk Ruling: RTA 1988 Breaches EU law.  To date this is the only analysis of this ruling.  The Vnuk decision exposes the DfT to yet further judicial scrutiny for failing to implement European law minimum standards properly.

The Department for Transport's is responsible for the national law provision for ensuring that motor accident victims' compensatory entitlement is properly safeguarded.  Unfortunately it is in a state of shambles.  

Call for reform

The minister chose to do nothing after initiating a deeply flawed and badly informed consultation on revising the Uninsured and Untraced Drivers Agreement and on being informed of the numerous defects in our national law implementation of the European Directives on motor insurance, that was back in late February 2013.  Now, 19 months on, he may have no choice in the matter.  If he fails to fulfil his constitutional duty to initiate reform, he may well find that others will do this for him.  


In my latest New Law Journal article, Bad Law (3 October 2014), I argue that the reason why -
  • Part VI the Road Traffic Act 1988, and 
  • The European Communities Rights Against Insurers Regulations 2002 as well as 
  • The Uninsured Drivers Agreement 1999 and 
  • The Untraced Drivers Agreement 2003 

- all fail to fully implement European law minimum standards of protection for motor accident victims is because the Department for Transport (DfT) has become overly dependent on the insurance sector for its policy in this area.

The DfT is responsible for providing the legal framework for ensuring that motor accident victims' compensatory entitlement is guaranteed and this is achieved through compulsory third party insurance.  The DfT is also responsible for regulating this statutorily enforced and lucrative market, one that law abiding members of the public finance through their expensive premiums.  

We rely on the Government to be even handed between the conflicting interests of powerful insurers and the vulnerable victims its policy is supposed to protect.  I argue the DfT has in recent years allowed itself to be browbeaten by the well resourced and highly influential insurance lobby and as a result it has failed to act in the best interests of accident victims.  Ministers come and go but insurers enjoy a permanent influence that affords them a significant advantage in the cat and mouse game of politics.  My article, Bad Law, considers some of the evidence that indicates that there are insufficient constitutional checks and controls on the ability of motor insurers to influence government policy.  To paraphrase George Orwell, whilst we are all equal under the law, it seems that some are more equal than others.

 Nicholas Bevan, Bad Law, New Law Journal article 3 October 2014

The minister must now step up to the breach and remedy these injustices.

To access my other New Law Journal articles, click here.