The pre-litigation process for mesothelioma and other asbestos claims has been subject to a number of developments over the years to address calls to “speed up” the process to reflect the unique nature of these cases.
The first development was the formation of the Mesothelioma List in 2002 which was set up under Senior Master Whitaker at the Royal Courts of Justice. He, along with a number of other Masters, sought to develop a new way to process mesothelioma patients within the courts.
Then, in 2007, the Civil Justice Council adopted the procedure used at the Royal Courts of Justice to formulate a Practice Direction to provide an expedited system of civil procedure to be applied to claims for damages for mesothelioma but which is in practice also applied to all asbestos claims.
Central to this procedure is the first Case Management Conference and what is known as the “Show Cause” procedure, its objective being to resolve issues of liability and for the court to order an interim payment for the living victim. At the Show Cause hearing it is a requirement for the Defendant to identify the evidence and legal arguments that give them a real prospect of success on any or all of the issues of liability. Defendants have to show why:
- a judgment on liability should not be entered against the defendant;
- a standard interim payment on account of damages and costs should not be made.
This is an extremely important milestone within mesothelioma cases as these payments can be used to access alternative treatments earlier than would otherwise be the case. This includes numerous privately funded treatments such as immunotherapy, proton laser therapy and chemotherapy.
These funds are vital in assisting victims of asbestos-related diseases and yet the routine interim payment figure for damages after a successful show cause hearing has been £50,000 for over 10 years, with the figure for costs set at £15,000. These are interim payments made at what is considered an early stage of the court proceedings as an early part payment towards the final award to be made when the claim concludes.
With the cost of living having risen rapidly amidst elevated inflation over the past 18 months and a number of new private immunotherapy treatments having become available since the show cause procedure was first developed for asbestos claims, the interim sum of £50,000 no longer provides the options or financial stability it once did and yet we continue to routinely see this figure awarded for interim damages.
When summary judgment has been entered in favour of the claimant, this sum has been ordered almost routinely for over 10 years, having been agreed at a time when the Judicial College Guidelines (JCG) for mesothelioma claims was substantially lower. Those Guidelines are used to assist the courts to determine the appropriate award of damages in any given case. In 2015, The JCG set out a final award of damages for pain and suffering for mesothelioma claims of £53,200 to £95,000. The current JCG bracket for mesothelioma claims sets out damages for pain and suffering in the range of £63,650 to £114,460. If this range is updated for inflation as the Guidelines intend, then the range should currently be £77,407 to £139,199.
As such, the interim award conventionally ordered for damages following a show cause hearing of £50,000 is now a significantly lower proportion of the final award to be made at the end of the case than when this figure was first applied for mesothelioma claims following show cause hearings.
If the conventional figures of £50,000 and £15,000 are adjusted to reflect the significant increase in the retail price index, then the courts should now be awarding interim payments in the region of £76,000 for damages and £23,000 for costs. The continuing impact of high inflation on these figures highlights that this is a matter desperately in need of review by the courts to ensure that the default interim award of damages sufficiently covers the cost of any private medical treatment not available on the NHS and reflects the rising litigation costs associated with bringing such court proceedings.