Andrew Morgan on the rethinking of success fees in asbestos claims
The current costs regime provides no comfort for asbestos disease victims.
Lord Woolf, in Callery v Gray, called for an evidence-based assessment of conditional fee agreements (CFAs).
The Civil Justice Council (CJC) commissioned research to calculate suitable success fees. The rules committee set fixed success fees in different varieties of personal injury claims.
Fixed success fees were agreed by reference to evidence from a variety of sources but the claimants’ team was deeply concerned that, in relation to asbestos diseases alone, in the past insurers had enthusiastically run "generic" arguments going beyond the confines of individual cases.
The insurers were continuing to run "generic" arguments regularly and as a matter of course—the fundamental basis for launching any asbestos disease claim was therefore constantly under threat.
The claimant side was reassured by three things: the two sides reached agreement as to the "headline” figures; a shared commitment to review the success fees periodically; and the quality and breadth of the underlying figures.
But the claimant side saw a glaring flaw in looking at historic data
