Mesothelioma claims should decline in volume but costs might rise

The number of deaths each year from the asbestos-induced cancer mesothelioma is expected to peak over the next five years. From 2020, the number of claims presented each year is expected to decrease, albeit insurers are now required to contribute a levy – £32 million for the first year – towards the compensation scheme for claims where no solvent paymaster is traced, set up under the Mesothelioma Act 2014. The unknown factors insurers need to monitor are the split between traced and untraced claims – which is moving in favour of the former under the scheme set up by the industry – and the impact of the pre-election announcement by the Department for Work and Pensions that the untraced claims compensation scheme payouts will be raised from 80% of the current court settlements to 100%. This may push up the levy.

Courts will take hard line on dishonesty

The implementation of section 57 of the Criminal Justice and Courts Act 2015 should enable insurers to persuade the courts to strike out not only fraudulent claims but also exaggerated claims and genuine claims where the claimant supports the fraudulent claim of a co-claimant. Following the judgments in Gosling v Hailo and Screwfix Direct and Zimi v London Central Bus Company Limited, the Act gives the court the power both to disapply the costs protection of qualified one-way costs shifting and to strike out the entire claim.

Social benefit of activities will become an important consideration

Following implementation of the Social Action, Responsibility and Heroism Act 2015, the social benefit of activities will become more important as courts are bound to consider the question when deciding whether to award damages in claims for negligence and breach of statutory duty. Following the reports of Lord Young and Professor Löfstedt, the Act is intended to encourage activities which, recently, have been discouraged by the threat of litigation.

Portal process tactics will test insurers’ mettle

Insurers and their solicitors will need to be on their guard against tactics to play the portal process. The horizontal extension of the low value protocols into employers’ liability and public liability and the extension of portal fixed costs have seen claimant solicitors adopt obstructive tactics, refusing to take telephone calls and giving the minimum information in their Claim Notification Forms, in a bid to force claims to drop out of the portal process. The introduction of fixed recoverable costs for claims falling from the portal process has also seen firms trying to avoid the portal by adding defendants to disease claims, exploiting loopholes and valuing claims over the portal’s ceiling on notification. Others have notified claims within the portal only to reveal that they are catastrophic injury claims once an admission of liability has been obtained.