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.
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.