The deadly cancer mesothelioma is the latest target of proposed Government changes to the finding of legal actions which it claims will streamline the claims process, but in fact could lead to terminally ill patients being denied access to justice, writes Andrew Lilley. Pic of asbestos fibres from Asbestorama photostream.

• Andrew Lilley is head of the Manchester law firm JMW’s industrial disease team.  He deals predominantly with claims for victims of asbestos related disease.

Mesothelioma is an aggressive cancer, usually of the lining of the lungs, the pleura, the only known cause of which is asbestos exposure. This devastating disease has no known cure and victims have an average survival period of only 14 months from diagnosis, although in some cases people may survive only a matter of weeks.

• Elsewhere on www.thejusticegap.com, you can read Tony Whitston of the Asbestos Victims Support Groups Forum HERE.

‘If the argument is polarized there will be no way forward for mesothelioma sufferers. Insurers delay the inevitable outcome of cases by presenting untenable defences and challenge the amount of compensation right up to the door of the court. Commercial interest trumps justice every time.’
Tony Whitston

The ticking time bomb
The dangers of heavy exposure to asbestos were known as long ago as the 1930s. Most industries became aware that low quantities of asbestos could cause mesothelioma following a Sunday Times article in 1965, however use of the material was not completely banned in the UK until 1999. Almost 50 years on from that article, the annual number of mesothelioma deaths in the UK continues to rise, with over 2,500 people losing their lives to the disease this year.

Traditionally, asbestos diseases have predominantly affected those who worked in lagging, insulation or heavy industries. However, there are a rapidly rising number of mesothelioma deaths amongst teachers, doctors, nurses, and even people who were exposed whilst a school pupil. These underline the ticking asbestos time bomb that huge numbers of public and private post war buildings contain, meaning any one of us could be at risk.

Last spring, as a result of pressure from asbestos victim support groups and lawyers working on behalf of asbestos disease sufferers, the government rightly excluded mesothelioma claims from the proposed civil justice reforms under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 for fear of restricting access to justice for innocent cancer victims.

Now, just six months later, the original proposal has been re-packaged for public consultation, being described by the Government as an attempt to promote speedy settlement of mesothelioma claims. Crucially, as part of the consultation, the Government wants to consider fixed legal fees for such claims, which will pose a huge access to justice issue for innocent victims.

The vast majority of mesothelioma claims in the UK are currently dealt with in a fast track court procedure in the Royal Courts of Justice. Under this procedure it is possible for straightforward cases to be completed in as little as three months, even for claims running into six figures. No other tribunal in the UK can boast such a record, and if speed is not the significant problem the Government suggests, it is difficult to see what the proposals achieve other than costs savings for insurers.

Mesothelioma cases that do take longer are usually the result of robust defence by insurance company who loathe the large long tail liabilities that arise from asbestos disease claims. As a result this area of insurance law has repeatedly appeared the Court of Appeal and Supreme Court in recent years whilst insurers find new and innovative ways to attempt to avoid paying compensation.

This includes what is known as the ‘trigger litigation’, where a group of insolvent insurers unsuccessfully attempted to avoid all liability under the policy by relying on a minor change in their policies’ wording.

Deep pockets
In a case that may involve an employer who stopped trading 30 years ago, a typical claim, a mesothelioma victim can expect the insurance company’s lawyers to raise any or all of the following arguments: they didn’t insure the company; if they did insure it, it was not during the period of exposure to asbestos; there was no asbestos at the company anyway; there was asbestos but the claimant wasn’t exposed to it; if they were exposed to the asbestos, it was in minimal amounts that are not actionable, and finally, that the disease the victim suffered from isn’t caused by asbestos exposure.

Contesting the rigorous denial of a mesothelioma victim’s case and securing concessions on each point involves the victim’s solicitors spending large amounts of time and energy speaking to family members and work colleagues, reviewing archived documentation and obtaining expert medical and engineering evidence to show that the exposure caused the asbestos disease.

Once all this evidence is collated, and the insurer finally admits that they are at fault, they then start disputing the value of the claim and a further process of negotiation on behalf of the victim follows.

If the changes proposed by the Government include a fixed fee process this is likely to severely limit the resources that the victim’s lawyers have available to fund the enquiries necessary to rebut the insurer’s arguments. In contrast, the defendant’s lawyer would continue to be funded by the deep pockets of the insurance companies.

These changes will encourage insurers to raise every possible argument because there are no costs consequences to them doing so. This could mean that the terminally ill patients or their families face the litigation risk of failing on one or more of these points and will therefore be under pressure from the insurers to receive a reduced negotiated settlement, because the litigation risk will all now fall on the innocent injured employee rather than the guilty employer and his insurer.

This is a complex area of law already, and my team have recovered hundreds of thousands of pounds in damages in the last year alone for asbestos victims advised by their previous lawyers that their claims were ‘too difficult’. These changes will only serve to swing the balance further in favour of the insurers.

The so-called compensation culture
As a result of pleural thickening, asbestosis, lung cancer and mesothelioma, asbestos causes about 4,500 deaths per year, making it the biggest single cause of work-related deaths in the UK.  However, mesothelioma causes the largest proportion of these and can be caused by extremely low levels of exposure, including one off incidents.

Insurers have repeatedly made reference to fraudulent claims and a compensation culture when discussing proposed changes to the Civil Justice System. Neither of these issues can possibly apply to the innocent victims of asbestos disease who have been negligently exposed by their employers, often over a period of many years. However, these changes are packaged, if they proceed as planned then the Government has firmly nailed its colours to the mast in supporting the insurers of negligent employers against the rights of innocent terminally ill victims.