Page 7 - PIC e-newsletter Spring Issue 8

ARTICLE
AN EYE ON THE FUTURE
With Mesothelioma deaths predicted to hit a peak this year, Reuben Glynn takes a look at the present position of such claims and the possible future.
sbestos can be found in any
building built before the year 2000 and causes around 5000 deaths every year, according to the Health & Safety Executive website.
Mesothelioma is a terminal lung cancer caused by exposure to asbestos dust and bres. The cancer usually develops in the lining of the lungs between 10 and 50 years after exposure. There is no cure and treatments are limited.
Mesothelioma is unlike other asbestos- related lung diseases because it does not require high and regular exposure to the deadly dust and bres for the cancer to develop. It is legally and medically accepted that very low exposure could potentially lead to a person developing the aggressive lung cancer. This is one of the reasons why forecasting UK Mesothelioma deaths
is so dif cult. Notwithstanding the dif culties in forecasting, according to the HSE, the number of deaths caused by Mesothelioma is set to peak in 2018. The DWP has suggested that more than 53,000 British people will die from Mesothelioma between 2013 and 2037.
As the deterioration in symptoms and condition can be rapid for Mesothelioma sufferers, the manner in which litigation is conducted in Mesothelioma claims
will also be impacted. The importance has been acknowledged by the MOJ in accordance with PD 3D. The intention
is to fast track cases particularly in living Mesothelioma claims where a Claimant has a limited life expectancy with a listing of Trial within 16 weeks of service of the Claim Form.
There is no mention of costs management in PD 3D however we have found through experience that ‘Fatal Mesothelioma’ claims will be subject to costs budgeting. The Court will ordinarily disapply cost management in ‘Living Mesothelioma’ claims where a Claimant has a limited or severely impaired life expectation (5 years or less remaining) in line with PD 3E 2(b).
As the deterioration in symptoms and condition can be rapid for Mesothelioma sufferers, the manner in which litigation is conducted in Mesothelioma claims will also be impacted.
By virtue of Section 48 of LASPO, the changes relating to recoverable success fees and ATE premiums which are made by Sections 44 and 46 of LASPO may
not be commenced, and accordingly will not apply, in relation to Mesothelioma claims. It will accordingly remain possible for a costs order in favour of a party to such proceedings to include provision requiring the payment of success fees and ATE premiums, and so the provisions of the CPR relating to funding arrangements as in force immediately prior to 1 April 2013 will continue to apply in relation to such proceedings, whether commenced before or after 1 April 2013. The xed recoverable success fees in respect of Employers’ Liability Disease claims is found in the pre-LASPO version of the CPR in Section V of Part 45 (CPR 45.23
to 45.26).
The matter of Coventry v Lawrence had implications for Mesothelioma claims and as such submissions were made
by a number of interveners including
a representative of the Asbestos
Victims Support Group. Judgment
was found in favour of the Appellants with the Respondent being ordered
to pay both the success fee and ATE premium. This was good news for Claimant practitioners in relation to the recoverability of additional liabilities and ensured that Claimants and their families in Mesothelioma cases would continue to receive 100% of the compensation awarded to them.
The sudden reduction in asbestos exposure in the 1980s brought about the assumption that exposure to asbestos should now have reached a negligible level, but this is uncertain and it won’t be clear from the statistics for many years.
It was believed that the reduction in exposure would eventually lead to less people contracting Mesothelioma and thus reduce the number of claims in
the future. This was likely the thinking behind the decision to allow Receiving Parties to continue to recover Additional Liabilities from Paying Parties. However, while we may be coming to the end of a generation of heavily exposed industrial workers, such as laggers, shipbuilders, factory workers and construction workers; we do not know the full impact on other occupations exposed more recently while working within the UK’s older buildings. There are generations of plumbers, electricians, joiners, decorators, plasterers, and builders who have all come into contact with the asbestos still present
in industrial, commercial and residential properties. How Mesothelioma will impact on them will not be known for decades.
It is these uncertainties that doubt is cast on whether the rules will continue to allow the recovery of additional liabilities from Paying Parties. All we know is that Mesothelioma solicitors will continue to deal with the dif cult and complex issues of breach of duty and causation for this new generation of
sufferers.
Reuben Glynn
is the Managing Director at Partners in Costs (PIC).
www.pic.legal Spring 2018
PINADRUTSNTERYS EINXPCEORSTS
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