The process of successfully holding a former employer and / or their insurers to account by an asbestosis lawyer for determining lawful liability for a claimant's mesothelioma or related asbestos disease and /or asbestosis symptoms, such as pleural plaques, can be lengthy and complicated and subject to different rulings at different times.
One recent example is the reinstatement - first in Scotland and then in Ireland - of the ability to make a mesothelioma for the presence of pleural plaques (raised fibrous scarring of the lungs) in late 2011, just four years after the House of Lords ruled that individuals with the confirmed condition would no longer receive compensation.
Now the process is to be subject to financial cutbacks, which would actually leave those claimants ( or more likely, their surviving spouses / family members) who win their mesothelioma claim with damages reduced to below current figures.
Concern over the cost of civil justice in England and Wales, particularly in certain cases when the costs were often disproportionate to the issues involved led to The Review of Civil Litigation Costs - or Jackson Review - in 2009. The Legal Aid, Sentencing and Punishment of Offenders Bill currently being discussed in Parliament, draws upon the recommendations of the Jackson Review, which could see a maximum claimable success fee, widely expected to be 25 per cent of the damages awarded.
The Jackson Review also include the following proposals:
The costs system should be based on legal expenses that reflect the nature/complexity of the case. Success fees and after the event insurance premiums should not be recoverable in no win, no fee cases. General damages awards for personal injuries and other civil wrongs should be increased by 10%. Claimants should only make a small contribution to defendant costs if a claim is unsuccessful (if behaviour is reasonable).
Under the above proposal, it is recommended that all future fees for a successful claim be paid out of the claimant's damages and not by the losing defendant. However, to offset the more adverse affects from the above change, a general damages award for 'pain, suffering and loss of amenity' is to rise by 10 per cent.
At present, and according to the 2010 publication of the JSB Guidelines 10th edition, the range of mesothelioma award payments was amended from the 9th edition figures of £52,500 - £81,500 to a new range of £35,000 - £83,750 with a lower end guidance figure heavily reduced for unusually short periods of pain lasting around three months.
Irrespective of the additional 10 per cent, the lower end figure recommended for mesothelioma is still over £10,000 lower than the previous Guidelines figures.
An obvious consequence of the above proposals, if they pass into law, is the reduced damages received by mesothelioma claimants who have conditional fee agreements ( CFAs) with their asbestosis lawyers. However, there could also be concern for the willingness of some solicitors to take on cases where proving liability is potentially complex and asbestos exposure was light or 'low risk'.
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