Wednesday, October 13, 2010

SPEEDING UP MESOTHELIOMA CLAIMS part-2


1. Mesothelioma Pre-Action Protocol
The fast track court system for mesothelioma claims, developed by Senior Master Whitaker,
has made the greatest single improvement to date in progressing living mesothelioma claims.
The MoJ has incorporated this fast track system into a Practice Direction, which will soon
take effect throughout the regions and expedite many more mesothelioma claims. It would be
a disaster if a mesothelioma pre-action protocol were to be adopted which would deny early
access to the fast track court system, and thereby undermine an initiative which has been
universally acclaimed.
However, we share concerns that more could, and should, be done to improve claims, both
pre-action and post-action. Government has already proposed improvements through interim
and long term measures. We think the government’s initial, interim approach with regard to
the pre-action process was correct in looking for an early, standard letter of claim in the
context of the Pre-Action Protocol for Disease and Illness Claims (Disease and Illness
Protocol).
Standard Letter of Claim
The announcement on 16 May 06 by John Hutton1 that the DWP, ABI, APIL and the DCA
had agreed to work together to speed up the settlement of claims for those suffering from
mesothelioma was universally welcomed. On the 20 July 06 eight interim measures were
announced, including the development of a Standard Claim Letter, which could be
implemented relatively quickly. Action on most of the interim measures has now been taken,
resulting in significant improvements.2
The development of a Standard Letter of Claim was overtaken by the ABI’s unexpected, and
unwelcome, draft mesothelioma pre-action protocol. We think that the initial proposal for a
Standard Claim Letter should now be developed, and implemented, as a matter of urgency.
Appropriate reference to the letter of claim should be made in the existing Disease and Illness
Protocol to the effect that:
• the letter of claim should be sent within 14 days of a defendant being identified3 and before
issuing proceedings;
• any delay in sending a letter of claim is unacceptable and we believe that sanctions should
be imposed on a claimant’s solicitor for failing to do so;
• 14 days should be allowed before proceedings are issued for a defendant to reply and admit
liability and make an acceptable offer and an acceptable interim payment.
It is clear that in many cases the claimant’s occupation and the defendant’s industry sector,
e.g. BR locomotive works, means that it is inevitable that liability will be accepted: it is
only a matter of time until this is done. In these circumstances especially it is possible for a
defendant to concede liability in response to a letter of claim within the specified period.
• proceedings may be issued at any time after the 14 days have elapsed from the claim being
sent.
Accepting liability must be quickly followed by a meaningful offer of compensation. Too
often this does not happen and a long delay ensues, leading to eventual ‘haggling’ on the
steps of the court. Anyone who has stood with a widow and witnessed this sordid spectacle
will understand the frustration and anguish caused by the claims process. This is why it is
essential that proceedings may be issued even if liability is admitted.
Fatal Claims
We believe that in contrast to living claims, fatal mesothelioma claims are not expedited as
they should. It is not acceptable that some fatal claims should take years to conclude. We
think that the Disease and Illness Protocol is not currently followed and we think it should be
effectively enforced, and sanctions should be imposed for delay. Fatal mesothelioma claims
should be monitored to assess the effectiveness of the Disease and Illness Protocol.

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