NO TIME TO LOSE: THE IMPORTANCE OF PROGRESSING MESOTHELIOMA CASES AS SWIFTLY AS POSSIBLE
Since 2002 there has been a specialist asbestos list at the Royal Courts of Justice in London to process mesothelioma and asbestos disease claims, the list having been set up to enable such claims to move forward swiftly. The aim is to conclude cases, where possible, during a claimant’s lifetime. The Courts in Manchester and Leeds also followed suit but the success of the specialist asbestos list in London means most claimant solicitors will issue their asbestos claims in London because of the experience and knowledge of the specialist Masters (judges) there.
The procedure was formally adopted in Practice Direction 3D – Mesothelioma Claims which came into force in 2008 and sets out the procedure for processing asbestos claims.
Generally the specialist Masters in the asbestos list will set a strict and tight timetable to take the claim to a Trial if liability is disputed, or an assessment of damages hearing, where liability is not in dispute and the only issue is how much the claim is worth. Claimants can though be reassured that very few cases go all the way to a final hearing, whether that be a Trial or an assessment of damages.
The Masters encourage direct contact by email, with telephone hearings (often at short notice) for speed and ease and have an open policy to deal with any issues which arise. There is no denying that the procedure in the specialist list works very well, generally, for expediting those cases of the utmost urgency.
Of course narrowing the issues and expediting the claim should make it less expensive to fight. This results in a more swiftly concluded claim and less stress for the claimant, as well as reducing the costs which the defendant will have to pay in a successful case, the defendant being responsible for paying the claimant’s legal costs, in addition to their compensation, in the event of a successful claim.
However a claimant’s solicitor can never quite predict the tactics of the defendant’s solicitor to stall and delay, which could sadly result in the claimant passing away before the conclusion of their case. In some cases this could result in the claim being worth less (an advantage for the defendant and a reason therefore for them to utilise delaying tactics) with of course the tragic result that the claimant would not see the benefit of any compensation, which would instead fall to the Estate and their dependants (if any).
Many defendant solicitors take a constructive approach, but I have unfortunately known defendant’s solicitors to agree a timetable to a final hearing, well aware of the dates they will be bound to comply with, only to then request an extension of time for each of every one of the directions. These are steps parties are required to take to prepare for the final hearing, such as serving witness and expert evidence and details of how each party values the claim. Failure to comply with these within the specified time limits can often jeopardise the final hearing date.
Of course there is sometimes a good reason why a party may need extra time to comply with one of the court’s directions and agreeing a short extension of time may not jeopardise the claim. Indeed, sometimes it is the claimant’s solicitor who needs such additional time for compliance with a direction. However a request for such an extension without clear and just reason will generally be met with a refusal by me and other specialist claimant asbestos disease lawyers, in order that the claim can be kept on track.
I had a living asbestos-related lung cancer claim three years ago which was fully contested. I issued court proceedings to progress matters and the claim was dealt with in the asbestos list. When it came to the medical evidence, the court had ordered an expert oncologist to deal with a specific point relating to a previous cancer the claimant had had in the past and whether this had affected his life expectancy, which in turn had a bearing on the value of the claim and could have made the claim less valuable.
The defendant, however, went beyond the permission of the court in their instruction of this expert as their oncologist gave an opinion about the cause of the lung cancer, which was not supportive for the claim. This was beyond the scope of the court’s permission. The defendant’s respiratory consultant referred to the oncologist’s opinion so I took the bold step of applying to the court to strike out the defendant’s medical evidence entirely on the basis that it was all contaminated by the oncologist’s opinion.
The application was successful and the claim settled soon after, despite the defendant applying to appeal the Master’s decision. What defendant wants to go to Trial with no medical evidence to rely on?!
I also recently dealt with a mesothelioma claim where the specialist list again worked well for the claimant. The claimant had a poor prognosis and the defendant’s solicitors were dragging their heels. I had made a settlement offer, to which I had had no meaningful response. I therefore quickly issued court proceedings to enable the claim to progress more swiftly and put the defendant under pressure. At the first hearing, the Master entered judgment such that the question of liability was no longer an issue. The defendant was ordered to pay the claimant an interim payment and a timetable was set to take the matter to an urgent assessment of damages hearing. I, on behalf of the claimant, had complied with the directions required so it was more a question of waiting for the defendant to “catch up”.
The claimant’s health was deteriorating and his claim was more valuable if concluded during his lifetime as he had no financial dependants. I therefore applied to the court for the final hearing to be moved forward, once all of the directions had been complied with. This was an excellent example of the specialist list working well for mesothelioma claimants. Bringing the final hearing forward was clearly in the best interests of the claimant and there was no difficulty in achieving that. The new hearing date put the defendant on the back foot as the hearing was brought forward by over one month.
However, still no offers were forthcoming from the defendant until just less than 2 weeks before the assessment of damages hearing. We stood by our original offer, which the defendant did eventually accept just 3 days before the final hearing, after all the preparation for the final hearing had been done, and some 4 months after the offer had been made.
To add insult to injury, in terms of the defendant’s poor conduct on this particular case, once the claim was concluded the defendant refused to make any further payments to the claimant until an updated certificate of benefits was available, the defendant having failed to obtain this before the upcoming final hearing.
Again I applied to one of the specialist Masters for an order requiring the defendant to make a further interim payment to the claimant and the Master listed an urgent hearing by telephone to consider my request. Thankfully taking this step was enough for the defendant’s solicitors to make such payment voluntarily, such that we could vacate the hearing before the Master. This case illustrates well the approach of the Masters in the asbestos list and how well an expedited procedure works for claimants with a limited life expectancy.
Most claimant mesothelioma and asbestos disease solicitors will make full use of the specialist list to ensure these claims can progress as swiftly as possible. The benefits are clear and I wholeheartedly commend the Masters involved for their support and understanding of these claims.
Boyes Turner LLP