Mesothelioma and asbestos induced lung cancer claims – when time is short

News | Wed 3rd Jun, 2015

One of the few improvements to the litigation process for claimants (and arguably for defendants as well) is the development over the last few years of what was originally known as “the specialist mesothelioma list” at the Royal Courts of Justice in London created by the former Senior Master, Master Whitaker.

As those specialist practitioners will know but those less familiar with this area may not, mesothelioma is a relatively rare cancer with about 2,500 people diagnosed in the UK each year which most of those in England (2,100). This is broadly equivalent to the number of people who die in road traffic accidents every year in the UK.

Mesothelioma is treated for all intents and purposes by medical experts as being almost always the result of previous asbestos exposure. Average life expectancy is between 6 to 12 months. Frequently claimants diagnosed with mesothelioma are in their 60s, 70s and older because the usual latency period between exposure and the development of symptoms can be as much as 50 years. Practitioners, not uncommonly, receive instructions with not much time to go before the claimant’s expected demise.

Taking instructions about potential asbestos exposure occurring many decades ago is made even more difficult as a result of the effects of this rapidly aggressive cancer. Such claimants sometimes also have other health condition which are unrelated to their asbestos exposure which just adds to the difficulty and challenge faced by the claimant’s solicitor. The same considerations apply to asbestos-induced lung cancer where the difficulties are perhaps even greater because this condition, unlike mesothelioma, is dose-dependent (in other words an asbestos-induced lung cancer claimant must show a sufficiently high enough asbestos dose to have occurred over his/her lifetime before it can properly be said that the cancer is asbestos induced as opposed to, for example, smoking induced whereas in a mesothelioma claim very low or slight exposures to asbestos are considered enough for the purposes of causation).

The purpose of this article is not to consider asbestos disease claims generally but to focus on one particular aspect, namely to highlight the expedited procedure available in asbestos disease claims which some practitioners who are less experienced in this field than others might not have come across or be confused as to its application.

The MOJ is currently considering proposals to improve the mesothelioma claims process even more. One difficulty which has been highlighted applies generally in cases where life expectancy is limited and that is the difficulty often experienced in obtaining the relevant medical records and imaging to enable a medical report to be obtained for the purposes of proceedings (and indeed progressing the claim even before proceedings.

The response to the MOJ’s consultation which was carried out between July to October 2013 found that all respondents agreed that unacceptable delays do occur when obtaining medical records and that although anecdotal evidence suggested that obtaining records from GPs was not usually a problem, delays were usually experienced with accessing hospital records, specifically pathology reports and imaging data. APIL is considering the proposal that a software system be developed so that the National Cancer Registration Service can provide all pathology and MDT reports as well as images electronically within days of a request. As ever, funding this proposal is the problem and APIL are working hard to resolve this.

In the meantime it is often not understood or even accepted that it is possible to issue and serve proceedings for asbestos-induced disease without a medical report if one is not to hand at the time of service.

First it should be understood that the “specialist mesothelioma list” is a misnomer in that the three specialist masters at the RCJ (Senior Master Fontaine, Master Eastman and Master Gidden) will hear all types of asbestos-related disease claims, not limited to mesothelioma claims. Moreover the Masters will apply the “show cause” procedure to all asbestos-disease claims (despite the repeated protestations by defendants in non-mesothelioma claims). This much is apparent from the judgement of Master McCloud in Yates v. HMRC [2014] EWHC 2311 (QB).

Ordinarily in a personal injury claim we assume that a medical report must be attached and served with the preceding. Often there is a fear that failure so to do will in some way invalidate the proceedings. In fact paragraph 4.3 of the practice direction to Part 16 says: “where the claimant is relying on the evidence of a medical practitioner the claimant must attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries which he alleges in his claim” (emphasis added). This is a change from the previous practice direction which was that a medical report should be attached where the claimant “intended” to rely on such evidence. In any event it has long been the position that a failure to obtain a medical report can never be justification for not serving proceedings without it (see Jones v. Telford & Wrekin DC, Court of Appeal, Lord Woolf MR, unreported, 9th July 1999 which involved several applications made on a without notice basis to extend time for service to await the medical report).

Where it is necessary to issue proceedings because the claimant has a severely limited life expectancy the practice direction for mesothelioma claims (again practitioners should be aware that this is a misnomer – the practice direction is not treated by the QB masters as being restricted to mesothelioma claims) says at paragraph 4 as follows:

4.1 Where the claimant believes that the claim is particularly urgent then on issue of the claim form, the claimant:

(ii) May request in writing that the court file is placed immediately before a judge nominated to manage such cases in order to fix a case management conference; and

(ii) Must explain in writing to the court why the claim is urgent.

4.2 Where the court decides that the claim is urgent (and notwithstanding the claim has not yet been served or a defence had not yet been filed) it will:

(i) Fix a date for the case management conference to take place within a short period of time; and

(ii) Give directions as to the date by which the claimant must serve the claim form if it has not been served already.

Ordinarily the default trigger for the case management process in an asbestos claim is the filing of any defence or the making of a default judgement but in cases with very severe reductions in life expectancy the court will manage the case urgently and fix a date for a case management conference without waiting for the time for acknowledgement and defence to expire. Paragraph 4.2 provides for the fixing of a CMC date even if the proceedings have not been served or a defence not yet filed. The claimant’s solicitor must explain in writing to the court (via the masters support unit) as to why the case is urgent and this includes sending an email to the MSU. In these circumstances there may not in fact even be a medico-legal report or one which is compliant with the Part 35. The claimant may, for example, have been admitted as an emergency to a hospice as a result of a sudden turn for the worse and before any medico-legal report has been obtained. The claimant’s solicitor may though have obtained hospital letters indicating the diagnosis of mesothelioma or lung cancer sufficient for the court to consider that the case is of some urgency.

If the court accepts that there is urgency it will usually fix a CMC date and require the claim form to be served, if it has not already been served, and thereafter set a timetable for acknowledgement and defence or it may simply order a CMC. Ordinarily little or no investigation of liability would have been carried out by the defendant before the issue of proceedings even in cases which do not concern claimants with severely limited life expectancy. In cases where the alleged victim is still alive and has an uncertain progress, clearly urgent case management is not only beneficial but also necessary if the aim of bringing living claims to either a trial on the issue of liability as a preliminary issue or an assessment of damages, can be achieved within 16 weeks of service of proceedings, this being the aim under the practice direction at paragraph 7.

It may be the case then that the court will entertain entering judgement on the issue of breach of duty if the show cause procedure under paragraph 6 is able to be used, or that the claimant’s evidence is preserved by an order that it be taken by way of deposition under paragraph 8, notwithstanding the absence of a medico-legal report at that stage.

The show cause procedure can be particularly helpful to claimants under the expedited procedure where life expectancy is very short because it enables the claimant at least to know that the defendant’s negligence or breach of statutory duty has been acknowledged and judgment entered even if the claimant is not in a position to proceed when there is no medico-legal report yet available before the claimant passes away.

This very specific and almost bespoke approach to asbestos claims was explained by the court in Yates above when Master McCloud, (in the context of delay caused by the inability of claimants to obtain HMRC employment histories), said:

“16. Each delay in a living asbestos claim has a penalty associated with it which is measurable as a proportion of the claimants in the system who will die without a claim being dealt with during that delay. Weeks lost imply lives ended without resolution of the claim, and that can also mean lost evidence which could have assisted either party. Yet where there is a properly arguable defence with a real prospect of success, the defendant is entitled to a trial and it would be a serious injustice to a defendant to deny it that right merely so as to ensure speedy hearing of claims, despite the often inevitable consequence that the claimant will pass way before trial.

17. It is therefore unsurprising that the practice has arisen of making assertive use of our case management powers to streamline the process as far as reasonably and fairly possible. One of the first considerations one gives in timetabling a claim is “how long does the claimant have to live?” which is a salutary yardstick for any judge and gives a human context to the notion of “proportionate case management”. It will be no surprise that budgeting is often dispensed with in these unique claims due to the delay which it would cause in our packed lists.

18. As distinct from more conventional courts, we waive most aspects of procedural formality in favour of using technology and extensive direct access to the two specialist masters, by equally specialist solicitors, using email, an open-door policy, and a “no nonsense” approach. Hearings are generally as informal as the circumstances permit (without of course departing from the law). Frequent use is made of evidence taken on commission at the home of the claimant on an urgent basis. Almost all hearings are by telephone.

19. Parties are not discouraged from “mentioning” claims or asking for a short hearing or a decision by email on matters arising, and it is seldom that a party is penalised for bringing a matter back for our attention in good faith. The starting presumption for our hearings is “costs in the case” unless there is some real reason to penalise a party.

20. Administratively we try, where resources permit, to ensure that specialist staff assist us with the work of the court so that asbestos claims are effectively a separate channel of work within the system. Where an application is made it is expected to be by way of email either directly to one of the masters (sometimes in practice, to both), or channelled through our staff, and without the formality of drafting and issuing a Part 23 form and the delay of passing paperwork via the hard-pressed Masters’ Support Unit. All we normally require is that the evidential and legal requirements for an application are met, rather than the strict form of a Part 23 application notice.

21. We set directions timetables and the understanding by all concerned that the timings are very challenging. Missed time limits are not unusual albeit that of course there is no question of deliberately setting the parties up to fail. Very few “Mitchell” applications arise because claimants and defendants alike are drawn from firms which cooperate with each other and any slippage is, bluntly, often because the timescales in such cases are exceptionally abbreviated. We usually permit parties to agree changes to timescales between themselves within reason, as long as the law permits, and this practice has also helped to avoid unnecessary cluttering of our list with relief applications”.

It can be seen therefore from the above that practitioners must never be afraid to progress asbestos disease claim especially where time is short for the claimant where no medical report is yet available. The same can be said with other formal requirements in particular a fully compliant schedule of loss. Lastly, it should be said that although the aim was and remains that the practice in London at the RCJ should be emulated throughout the jurisdiction, in reality the observance by courts outside of London with the practice of the QB masters is patchy at best. Practitioners are therefore encouraged to issue all their asbestos disease claims (of whatever value) in London at the RCJ because of their specialist knowledge and experience.

This article was first published in the May edition of the APIL publication ‘PI Focus‘.

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