LEGAL FEES are an ongoing issue in a review of the Dust Disease Claims Resolution Process (CRP), with recommendations made to improve the amount of money and speed with which asbestos-related claimants are compensated.
Yet dust diseases expert Bernard McHardy, partner at McLaughlin & Riordan, said the issue of legal costs, although important, may be overshadowing claimants’ rights.
“The costs issue, as with all of this litigation, seems to have been elevated above the issue of claimants’ rights — as the promoter of why we have to have administrative rather than legal resolution of these claims,” McHardy said.
The CRP should certainly endeavour to reduce both the costs accrued and the time taken in compensating victims, particularly those with serious and terminal illnesses, McHardy said. “[But] my experience was that the judge-driven process was pretty quick in those situations anyway, and you do feel that the tinkering sometimes is just shifting the deck chairs around.”
At this stage of the inquiry, it is still important to allow enough time to see if the CRP system is working, McHardy said. And there is merit in looking to the dollar value of the system relative to the costs that are incurred and the compensation that is being paid.
But from a lawyer’s perspective, it is difficult having to answer to charges that excessive fees have been taken in asbestos-related claims.
“Personally, I find that offensive in the sense that you, like everyone else who does a professional job, are hopeful that you are doing a good job for your client, and that your relationship with them is based on trust,” he said. “To have people suggesting that you’re overcharging them or that you’re responsible for the problems in the system is not a terribly helpful or reasonable accusation to constantly be levelling.
“I don’t imagine that there are too many commercial activities where you have to account to people in some industry body as to what you charged your client,” McHardy said.
The attention paid to lawyers’ fees in this instance may be an attempt to divert attention away from James Hardie.
“There’s probably somebody there that would argue that these are the sorts of inquiries that are useful in terms of taking some measured view about how the system is working,” he said. “But I suppose when you see Hardie’s directors being paid severance pays that are beyond most people’s comprehension, you question whether there is any equanimity in the way that the question is being dealt with.
“If it is suggested that lawyers can’t be trusted, then it is a continuum of an easy political point-scoring in suggesting some odium in the way that lawyers behave.”
McHardy has been conducting dust diseases work with colleague Richard Buckley since the Dust Diseases Tribunal’s inception in 1989. The CRP review was initiated by the Attorney-General’s Department of NSW, and submissions on the review are welcome until 12 February 2007.