The Ministry of Justice’s (MoJ) consultation on reforming mesothelioma claims in England and Wales closed on 2 October 2013 – the latest consultation in a long line of proposals to streamline claims management and manage litigation costs.
Included within the proposals is whether the current exemption within the LASPO Act 2012 (recoverability of CFA success fees and ATE insurance premiums) should be lifted. We argued that it should be. Mesothelioma claims are already, quite properly, afforded special treatment to ensure prompt settlement and therefore carry lower costs risks than other types of personal injury claim, especially as the only issue at stake in most cases is the level of damages.
In addition, specific costs saving measures are already in place for mesothelioma cases, such as the provision of occupational and health records by the potential defendant to the potential claimant at no cost (which also applies to other disease cases) and the specially designed 'fast-track' court procedure.
Despite this 'fast track' system for asbestos claims the uplift is 27.5 per cent for a normal CFA and 30 per cent for a trade union funded claim but increasing to 100 per cent if the matter proceeds to trial. This compares to (pre-Jackson uplifts of) 12.5 per cent for a RTA and 25 per cent (27.5 per cent if union backed) for an EL claim if settled prior to trial. The uplifts being applied to mesothelioma cases in practice do not, therefore, reflect either the level of risk which these cases carry or other types of personal injury cases where no exclusion has been applied and where liability will frequently be in dispute.
The other main facets of the consultation looked at introducing:
- a dedicated pre-action protocol (as based on the draft produced by the Association of British Insurers)
- a secure online gateway for the transmission of information
- a regime of fixed recoverable costs (to underpin the protocol)
With regard to the suggestion of a secure gateway, we acknowledge the good intention of a secure method to register information. However, it is unlikely to make a substantial difference to the existing practice of managing mesothelioma claims.
Identifying a widespread failure to comply with the current disease pre-action protocol, we suggested that a dedicated protocol is unlikely to make a substantial difference to the practice of managing mesothelioma claims. We went further and suggested that a protocol (dedicated or otherwise) should address the issue where the claimant is already deceased and the claim is brought by his estate. While it is right to expedite cases where the victim is still alive, an estate claim should be no different from the normal litigation process and any other fatal accidents claim. Therefore, there should be a costs sanction on estate claimants who litigate without complying with the proposed pre-action protocol.
A regime of pre-action fixed recoverable costs (FRC) would, of course, bring these claims in line with the wider civil justice reforms aimed at tackling litigation costs. Accepting, however, that most mesothelioma cases proceed to the 'fast-track' system, the question should extend the introduction of a FRC system to mesothelioma cases which are litigated.
Like Lord Justice Jackson, we believe that the saving will be significant. Not only will there be savings made from the removal of the recovery of costs ('costs of costs') but also in relation to the claimant’s solicitor not being required to time record or to retain records in the form of attendance notes to justify time spent on any given task.
The main reason why a FRC regime is suitable to mesothelioma cases is because by their very nature, they represent a low adverse cost risk for the claimant (as mentioned above). Notwithstanding the terrible nature of the disease, managing mesothelioma claims can be a straightforward process. Just as market forces have required defendant firms to undertake litigated mesothelioma claims upon a fixed fee and respond by developing efficiencies to still retain profitability, there is good reason for claimant firms to adopt similar measures.
When considering the factors which drive up costs, we highlighted the often lengthy and costly reports produced by experts and urged the MoJ to consider the adoption of an industry-approved model expert report template in order to control costs. This is not a unique concept but one which was adopted to process hundreds of thousands of claims under both the British Coal Vibration White Finger and Respiratory Disease schemes. Such an approach could eliminate the non-essential information from these reports thus reducing the cost of the report itself and the costs of the claim in considering these reports.
It is vital to keep the Jackson reforms intact to avoid a watering down of the proposals and the production of a range of anomalies. Should that occur, it would risk satellite litigation (and further cost generation) and unfairness for those claimants in an otherwise similar position to disease claimants where such an exception does not apply. We, therefore, await the Government’s conclusions with interest.