The matter of David Myall v Ministry of Defence and Serco Limited [2017] EWHC1752, a claim for exposure to asbestos resulting in the claimant developing mesothelioma, was scheduled to go to final trial in July this year, but was settled just beforehand. However, an issue arose during proceedings, which was dealt with at an interlocutory appeal, as to whether the claimant was entitled to a split trial.

The claimant sought on application heard before Master Gidden an order for a split trial on liability and quantum. In support of this, the claimant raised the prospect of being assessed as a suitable recipient for the new immunotherapy treatment, Keytruda.

Master Gidden refused the application on the basis that there was no medical evidence in support of any such treatment. At the same hearing the claimant also sought relief from sanction for service of a late witness statement. Master Giddens refused the application for relief. Following which the claimant appealed both decisions.

The appeal took place before Mrs Justice May DBE. Despite extensive submissions by the claimant, Mrs Justice May refused to consider the application for a split trial, repeating Master Gidden’s view that the claimant had failed to provide any supportive medical evidence in relation to the treatment which he sought.

This appears to give voice to the decision of Jones v Royal Devon NHS Trust [2008] EWHC 2706 in which it was held that claimant’s medical expenses must be considered by the court and the court must “apply the touchstone of reasonableness and principles of remoteness and proportionality” when considering such heads of loss.

What this means for you

Given the initially positive results from the Keytruda trials and the developing immunotherapies for cancers and mesothelioma, this issue is likely to remain in the forethoughts of the court’s and claimants’ minds when dealing with cases such as Mr Myall’s.

For those defendants facing requests for split trials in such circumstances, this will be a useful judgment to keep to hand to highlight for the court that unsupported and unsubstantiated claims for medical treatment should be given short shrift. However, where claimants can support their requests for experimental treatment with appropriate expert evidence, the matter will most likely require a decision on the costs of that treatment and whether it is properly recoverable. However, such a decision should be capable of being dealt with as an integral part of the case and should not on its own require a split trial.