Page 8 - PIC e-newsletter Spring Issue 8

8
MESOTHELIOMA
CLAIMS
Claims for people diagnosed with mesothelioma is a specialist area of personal injury (PI) law. The claims are governed by a distinct area of case law and statutes and a different cost recovery regime applies. Andrew Cooper explores the current issues that impact on legal costs in this area and the reasons why it has, and should continue to be, exempt from PI cost reforms.
What is Mesothelioma?
Mesothelioma is a type of cancer that develops in
the tissues which cover certain organs, typically the lungs and abdomen. It is caused almost exclusively
by exposure to asbestos dust. People often do not develop the disease until many decades after they were exposed to asbestos. Following diagnosis there is a limited life expectancy.1
Why do different cost rules apply?
Since the introduction of LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012) in April 2013, successful personal injury Claimants who fund their case by way of a Conditional Fee Agreement
the reforms would have for mesothelioma Claimants. As they often only have months to live they are not able to shop around to nd the best deal in order to retain as much of their damages as possible.
The exemption continues to this day, meaning mesothelioma Claimants can continue to keep 100% of their damages, whereas other PI claimants may not.
In Lord Justice Jackson’s latest recommendations, published in his July 2017 supplementary report, he proposes an ‘intermediate track’ xed costs regime (FCR). This means that for cases valued between £25,000 and £100,000, with less than two experts for each party and with a trial lasting less than three days, xed costs will apply.
However, one of the notable exceptions to the proposed FCR is mesothelioma and other asbestos related cases. Lord
Justice Jackson notes that asbestos cases are currently dealt with ef ciently by experienced judges in the
specialist Asbestos Lists in the High Court.
(CFA) have been prevented from recovering a success fee and after the event (ATE) insurance premium from a Defendant. Instead, the success fee is now payable by
the winning Claimant, which in PI cases is capped at 25% of their damages (excluding future pecuniary loss).
The uncertainty regarding breach of duty has led to more cases being defended. A clear determination from the Court of Appeal in Bussey could assist the parties to reach earlier settlements, thereby reducing time and costs.
The ‘Show Cause’ procedure is often used in these cases, where the burden is placed on
Defendants at an early stage in proceedings to show they have a viable defence. This
is effective in reducing costs in cases that reach an early resolution. Costs budgets are disapplied in most cases.
Proving Breach of Duty
It is now well known that even low levels of asbestos exposure are dangerous. However, one
By virtue of section 48
LASPO, mesothelioma claims
were excluded from this, with
successful Claimants continuing
to recover a success fee and ATE
premium from Defendants. However,
a government announcement followed
in autumn 2013 stating the intention to
bring mesothelioma claims into line with the rest of the PI world.
of the key issues for the courts has been deciding whether it was reasonably foreseeable from the 1930s
to 1980s that low levels could lead to mesothelioma and other asbestos related diseases.
The Court of Appeal has recently been considering this issue in the case of Bussey v Anglia Heating Ltd. The Claimant was employed by the Defendant as a plumber between 1965 and 1968. He recalled exposure to asbestos dust during his employment. He developed mesothelioma in 2015 and passed away in January 2016.
In 2014 following a judicial review brought by the Asbestos Victims Support Group Forum, the High Court decided the Government had acted unlawfully because it had not conducted a proper review of the likely effect
1 One year survival rates from date of diagnosis are 46% for men and 51% for women. Of ce for National Statistics: ‘Cancer survival in England: Patients diagnosed between 2010 and 2014 and followed up to 2015’.
2 Namely Jeromson v Shell Tankers UK Limited [2001] EWCA Civ 100 and Maguire v Harland and Wolff PLC [2005] EWCA Civ 1.
3 Since the time of writing this article, the Court of Appeal has handed down its Judgment, allowing the Claimant’s appeal. In Lord Justice Jackson’s Judgment he stated that while he did not dispute any of the legal principles stated in Williams, TDN13 should not be seen as a universal test of foreseeability in mesothelioma cases. All three Court of Appeal judges reinforced that the appropriate test for determining foreseeability was that as stated in the Jeromson and Maguire cases; namely that the employer is under a duty to assess the risk and reduce it so far as reasonably practicable.
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