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Pleural Plaques, Tort and Social Justice: Is Adversarial Legalism Taking Root in the UK?

Annette Morris
Cardiff University
Annette Morris
Cardiff University

Adversarial legalism in the US has encouraged some groups to mobilise the private law of tort as a means of achieving social justice. Tort, it is said, allows ordinary people to control and curb corporate power not achieved in the political domain. It allows ordinary people to hold the rich and powerful to account in a public forum. The payment of compensation provides social recognition to those harmed by powerful interests. In addition, tort litigation regulates corporate America by encouraging it to take more care in the future.

This paper considers the extent to which we are seeing the mobilisation of tort in the UK. In doing so, it seeks to contribute to the wider debate about the extent to which adversarial legalism is spreading to Europe. It pursues two lines of argument. On the one hand, it highlights a recent indicator of adversarial legalism in the context of tort – the pleural plaques debate. During this debate, asbestos campaigners sought to use tort as a tool for achieving social justice in the UK though with mixed success. As such, it is argued that Kagan’s generalist account of bureaucratic legalism in Western Europe overlooks the fact that on limited but important occasions, tort is mobilised to achieve wider political and regulatory objectives. On the other hand, however, it is argued that in the context of tort, Kagan is correct to suggest that adversarial legalism is unlikely to take root this side of the Atlantic. Despite recent developments, the UK’s civil justice system still lacks the key drivers of adversarial legalism including class actions. contingency fees and extensive discovery procedures. As such, whilst social, political and regulatory developments may make tort a more attractive ‘public’ tool, its growth in this respect will be stunted by institutional factors.

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