Mesothelioma proposals face

Proposals for the reform of mesothelioma claims have been attacked for removing claimant choice, lowering compensation and undermining a claims system that is already working.Last week, the Ministry of Justice launched a consultation that seeks to reform the way mesothelioma claims are processed.

The paper suggested the introduction of a dedicated pre?action protocol, which would establish quicker timescales for claims, the development of a fixed recoverable costs regime – which the MoJ said, would “encourage proportionality in the amount of legal work undertaken and provide greater certainty about the legal costs incurred on behalf of claimants” – and the introduction of an electronic ‘gateway’ for a faster exchange of information.

Briony Krikorian, policy advisor and liability regulation general insurance directorate at the Association of British Insurers, welcomed the proposals: “The focus of these proposals is very much on helping the majority of claims to settle pre-litigation.

“These pre-action protocols request all the information that would be needed by a defendant to settle a claim from the claimant and put timescales both around the information the claimant provides and how quickly the defendant has to respond to those, so it is about making the exchange of information much more systematic and third party merchant account.”

“At the moment claimants have a choice,” he said. “Some clients prefer their cases to be settled in life, while others prefer to receive an interim payment and for the case to be resolved after they die. Mesothelioma claims settled in life tend to be worth 10% to 20% less than claims concluded after death so these proposals reduce compensation and reduce the claimant’s choices.

“Second, it removes defendant lawyers from the process so insurers spend less on their own legal services. Third, it limits the amount claimants can spend on their own legal representation as this is a process designed by and to be run for the benefit of the insurers, providing cheap justice, which the victims can ill afford.”

According to Morgan the mesothelioma fast-track system introduced by Master Whitaker in the High Court, and more widely adopted in April 2008 – which requires the submission of evidence in order to establish the need for an interim payment, while giving priority to cases involving severely limited life expectancy – is already working.

He said: “[The mesothelioma fast-track claims system] has created a level of understanding and cooperation between claimants and defendant lawyers to resolve issues quickly. This process is an example of how litigation should be done, what these proposals do is rip it up completely, they undermine it.”

He added: “Insurers will have to gear up to deal with mesothelioma claims more quickly. At the moment power of a claimant to enforce its response is only through litigation whereas now they can point to the protocol and say insurers need to comply with it.”

The Association of Personal Injury Lawyers added the MoJ proposals would speed up the resolution of third party payment gateway. Matthew Stockwell, president of Apil, said: “We hope this exercise will result in a fairer system, which will benefit people who are dying from a truly awful disease they contracted just because they turned up for work, often many decades ago.”

While John Latter, director of technical centre for UK claims at Zurich, argued the proposals are set to have a positive impact on all the parties involved. “I don’t see any negatives for anyone: insurers will pay the claims in a quicker and transparent way. If passed [as they are] the proposals would bring certainty to the process, take out excessive costs and make sure those that need compensation get it.”

Philippa Craven, partner at Kennedys, added the introduction of the Secure Mesothelioma Claims Gateway would bring these types of claims in line with the recent Jackson reforms for employers’ liability and public liability claims.“Jackson didn’t look to exclude mesothelioma from his reforms. He always thought the conditional fee agreements fixed fees should apply to those claims so it was just decided mesothelioma claims would be looked at as a separate issue,” she said.

However, the MoJ was keen to clarify the fact the proposed gateway is not similar to the road traffic accident portal as initially thought.A spokeswoman for the MoJ said: “It is intended to be an electronic means of exchanging information quickly between interested parties in mesothelioma claims. Its objective is to help speed up the claims process.”