SPEEDING UP MESOTHELIOMA CLAIMS part-3

 2. Overcoming delays to mesothelioma claims pre and post-action.

A government long term solution was unveiled at the Mesothelioma Summit on the 13 March

2007 to provide a lump sum payment to all mesothelioma sufferers.4 This dramatic

government announcement, taken together with the interim measures already implemented,

amount to a major step forward for mesothelioma sufferers.

Notwithstanding these important government initiatives, including the practice direction

already referred to, much more needs to be done to improve claims, especially pre-action.

We are convinced that unless government addresses serious remaining obstacles to

mounting mesothelioma claims all government initiatives now and in the future will

remain partial and fail to achieve the government’s declared objectives.

In our submission to the DWP in November 2006 we identified the following obstacles to

mesothelioma claims. We believe that it is essential that they are removed.

Employers Liability Compulsory Insurance

A mesothelioma claim cannot be effectively pursued if an insurer cannot be traced where the

employer is no longer trading. Many legitimate claims fail simply because of this.

Furthermore, time is lost in tracing an insurer, so that in many cases a mesothelioma sufferer

will have died by the time an insurer has been traced.

The proposals below are essential, in many cases, to the issue of an early letter of claim and

to improve the pre-action process.

Establish a central repository for employers liability insurance

There is currently a requirement to keep employers liability insurance records (ELI) for 40

years. However, there is no system for central storage of insurance records, without which it

is very likely that the current difficulties in tracing ELI records will continue into the future.

As companies cease trading it is not possible to ensure that their records are accessible and

traceable. There should be a compulsory requirement for all responsible organisations to

record their ELI policies in an agreed central storage system.

Impose a specific duty to make available and deposit all ELI records

The code of practice for tracing employers’ liability insurance is not proving effective. There

is a substantial amount of information held by insurers, brokers and others. We believe that

the parties who hold this information will not voluntarily make available all the information

they have. We believe there should be a specific duty placed on specified organisations (e.g.

insurance companies, employers, solicitors, and others) to lodge all ELI information available

to them in a designated, central storage system. This is an urgent issue as information is

gradually being lost or destroyed.

Dependency Claims

Many mesothelioma claims are delayed because a claim made after death can be more

advantageous for a mesothelioma sufferer’s dependants. We know that mesothelioma

sufferers wish to die secure in the knowledge that the best financial arrangements have been

made. We do not think an acceptable solution to this dilemma is for an interim payment to be

made pending completion of the claim after death.

The MoJ have proposed options which might satisfactorily resolve this dilemma in their

consultation paper CP9/07, and also remove the discrepancy in this aspect of law between

Scotland and England and Wales.5 We think that the options in the consultation paper should

be considered as a matter of urgency and a satisfactory solution agreed to provide just

compensation and to avoid unnecessary delay in settlement of claims and anguish to

mesothelioma sufferers and their families.

The FSCS validation rule

The Financial Services Compensation Scheme (FSCS) validation process causes long delays

in payment of damages to mesothelioma sufferers, so that in many instances they die before

payment is made. These delays could be eradicated if the mesothelioma sufferer were paid

prior to the conclusion of the validation process. The FSCS can afford to wait for payment

and would lose nothing in doing so. It is unacceptable to delay payment for no other reason

than bureaucratic convenience.

Arrangements for provision of medical records

The delay, in some instances, in the provision of medical records, can slow down the claims

handling process. While clinical treatment is a priority, the importance of making records

available to expedite mesothelioma claims is not always sufficiently understood.

The majority of hospital trusts in Merseyside have agreed to a Terminal Illness Protocol

which prioritises solicitors’ requests for medical records by accepting a a new form, titled,

“URGENT – Terminal Illness Case (TIC)”. It was noted in discussions that the current fee for

providing medical records is insufficient. A higher fee, particularly for solicitors’ priority

requests, would enhance the capacity of trusts to provide information in a timely manner.

The insurers’ latest challenge: the ‘trigger’ issue

Insurers are threatening to withhold compensation in mesothelioma cases pending the

outcome of the legal challenge, the ‘trigger’ issue. We have been contacted by claimants who

have been advised by their solicitors that payment might be delayed. One of the biggest

impediments to mesothelioma claims has been the continuous attempts by defendant and their

insurers to challenge the right of mesothelioma sufferers to compensation; first the Fairchild

case, then the Barker case and now the ‘trigger’ issue. We do not accept the assurances given

to government by insurers that they are eager to provide timely to compensation to

mesothelioma sufferers, when, at the same time, they are working day and night to defeat

legitimate claims. If this latest attack on mesothelioma claims is successful it will cause chaos

and lead swiftly to the end of compensation for mesothelioma sufferers.