APPENDIX 6
Supplementary paper submitted by the Claimants'
Solicitors' Group
IN THE HIGH COURT OF JUSTICE
CLAIM NO: 960177
QUEEN'S BENCH DIVISION
BETWEEN:BRITISH COAL VIBRATION WHITE FINGER LITIGATION
Claimant
and BRITISH COAL CORPORATION
Defendant
Prepared by the Co-ordinating group for the Claimants'
solicitors
This document is prepared by way of addendum
to the report already submitted to the DTI Select Committee and
to supplement that report by addressing the issue of the Department's
aspirational end dates for the VWF Scheme which were raised at
the hearing before the select committee on 23 February.
The DTI's aspirational end dates are:
1. General Damages: settle all general damages
claims by the end of the third quarter 2005, subject t co-defendant
co-operation.
2. Services Claims: conclude services MAP
by the end of 2006 and settle all services claim by end of 2007.
3. Group 3 Claims: complete investigations
of Group 3 Claims by the end of the third quarter of 2005.
We comment on each of these below.
General Damages: Co-defendants
In the overwhelming majority of claims offers
for general damages have been made and either that head of claim
has settled in its entirety or agreement has been reached and
a substantial interim payment made.
However, there remains two substantial cohorts
of cases in which settlement of the general damages element of
the claim remains outstanding. These are Group 3 claims (see below)
and claims involving co-defendants.
It is understood that there are currently approaching
15,000 claims in which there is co-defendant involvement. That
is to say in addition to the claim against British Coal. (DTI)
there is also a claim against a co-defendant who may be liable
to make a contribution to the compensation payable to the Claimant
under the terms of the handling arrangement.
The contribution will vary from case to case
depending largely upon the length of the claimant's period of
exposure to vibration with the co-defendant when compared to that
of his period of exposure with British Coal. In several thousand
claims involving co-defendants agreement has yet to be reached
with all co-defendants as to the contributions what they will
make to the Claimant's compensation so as to ensure that he receives
his full entitlement under the CHA.
The vast majority of co-defended claims involve
other mine operators (CMR defendants) or mining contractors (CMC
defendants). The CMC and CMR defendants were not initially parties
to the handling arrangements when it was achieved in January 1999.
However, by the spring of 2000 most had indicated an intention
to accept the handling arrangement and had formally confirmed
that acceptance by the late spring of 2001 (after detailed consideration
of the medical assessment process).
Under the CHA, the Claimant makes separate claims
against each co-defendant and IRISC are committed to use their
best endeavours to persuade other defendants (or their insurers)
to accept the terms of the CHA and to co-ordinate claims so that
compensation is offered (paragraph 11.2)
The CMR defendants (or their insurers) are responsible
for paying to the Claimant directly in full their contribution
to his compensation. So too are the CMC defendants (of their insurers).
However, as the DTI would also have a liability in respect of
the exposure which occurred in British Coal Mines during the Claimant's
employment with the CMC defendant, the DTI subsequently refund
to the CMC defendants (or their insurers) a proportion of the
sum that they have paid. This is usually 50% of more of the compensation
paid by the CMC defendant to the claimant.
As noted in our report (page 11). Initially
IRISC focused on the bulk of claims in which there was no co-defendant
interest and declined to focus adequate resources on the more
arduous task of dealing with co-defendant claims. Although latterly
IRISC have shifted their attention and more resources to address
the problem of co-defendant claims settlement of the general damages
element remains outstanding in several thousand co-defendant claims.
It appears that may CMC and or CMR defendants
(or their insurers) have also given these claims a low priority
and the co-ordination and handling of claims involving CMC and
CMR co-defendants have been plagued with continuing difficulty.
It is not known what steps (if any) the DTI
have taken at a high level to encourage CMC or CMR defendants
and their insurers to give dealing with these claims the priority
that they deserve. The DTI will have contact with CMC and CMR
defendants or their insurers as a result of the other aspects
of the DTI operation and area of responsibility.
Neither have the terms of the DTI's arrangement
with the CMC defendant or their insurers been disclosed to us
and it is not known to what extent, if any, those arrangements
adequately enable the DTI to exert influence on the co-defendants
handling of claims, particularly bearing in mind the financial
contribution that the DTI are making to the co-defendant liability,
indicated above.
There is significant concern that by the aspirational
end date of 30 September 2005 a settlement of the general damages
element of a significant number of co-defendant claims will not
have been achieved.
GROUP 3 CLAIMS
Group 3 claims were addressed in our report
from page eight onwards and on page nine figures are given for
the number of completed investigations to date. It is noted that
the investigation remains to be completed in potentially over
7,500 claims.
It is understood that the DTI estimate that
the number will in fact turn out to be lower and for planning
purposes have assumed the number to be about 6,600.
Targets for the quarters to the aspirational
end date for completion of all investigations (30 September 2005)
have now been set and these are:
Achieving those targets would require a substantial
increase in the rate of investigation to date. The latest figures
made available to us reflected the position as at 31 January 2005.
From then, eight months remained until the aspirational end date.
To achieve the target would require 825 investigations to be completed
on average each month. This would represent a significant increase
in the target figure to date. Attached at Annexe 1 is an extract
from the Group 3 statistics produced by IRISC dated 30 January
2005. The first sheet gives in the "total" column, monthly
figures for the number of investigations completed. The target
figure is indicated in the far right hand column. It is readily
apparent that the target is rarely achieved.
The second sheet illustrated the position graphically.
Despite the continuing failure of IRISC to achieve
target, the DTI have expressed a high degree of confidence that
the aspirational end date for completing investigations in outstanding
Group 3 cases will be achieved. We are less sanguine.
SERVICES CLAIMS
The Department acknowledged in its report to
the Court for the hearing on 20 December that there had been some
slippage in the timetable for processing claims. It was suggested
that the slippage was about six months.
Our analysis of the available figures suggested
that the slippage was greater and gave us real concern that there
appeared little prospect of achieving anything close to the aspirational
end date for completion of services claims (end of 2007). Subsequently,
we wrote to the Department's solicitors setting out our analysis
and concerns and inviting a response. A copy of our letter of
22 December is attached at Annexe 2. We have yet to receive a
substantive reply.
Annex 1
IN THE HIGH COURT OF JUSTICE
CLAIM NO: 960177
QUEEN'S BENCH DIVISION
BETWEEN:BRITISH COAL VIBRATION WHITE FINGER LITIGATION
Claimant
and BRITISH COAL CORPORATION
Defendant
| Month | England
| Wales | Scotland | UDM
| Total | Cululative
Total
| Target |
| December 2001 | 19 | 4
| 0 | 1 | 24 |
24 | |
| January 2002 | 18 | 4
| 0 | 4 | 26 |
50 | |
| February 2002 | 93 | 8
| 0 | 16 | 117 |
167 | |
| March 2002 | 60 | 4
| 1 | 18 | 83 |
250 | |
| April 2002 | 61 | 1
| 3 | 19 | 84 |
334 | |
| May 2002 | 78 | 6
| 1 | 14 | 99 |
433 | |
| June 2002 | 46 | 5
| 1 | 8 | 60 |
493 | |
| July 2002 | 92 | 31
| 1 | 28 | 152 |
645 | |
| August 2002 | 79 | 16
| 0 | 27 | 122 |
767 | |
| September 2002 | 88 | 11
| 1 | 26 | 126 |
893 | |
| October 2002 | 180 | 25
| 4 | 49 | 258 |
1,151 | |
| November 2002 | 205 | 32
| 3 | 33 | 273 |
1,424 | |
| December 2002 | 133 | 29
| 2 | 22 | 186 |
1,610 | |
| January 2003 | 185 | 17
| 10 | 27 | 239
| 1,849 | |
| February 2003 | 201 | 42
| 7 | 53 | 303 |
2,152 | |
| March 2003 | 132 | 21
| 7 | 49 | 209 |
2,361 | |
| April 2003 | 214 | 28
| 10 | 60 | 312
| 2,673 | |
| May 2003 | 225 | 15
| 15 | 80 | 335
| 3,008 | |
| June 2003 | 81 | 13
| 3 | 17 | 114 |
3,122 | |
| July 2003 | 49 | 9
| 5 | 5 | 68 |
3,190 | |
| August 2003 | 57 | 6
| 4 | 4 | 71 |
3,261 | |
| September 2003 | 28 | 4
| 1 | 7 | 40 |
3,301 | |
| October 2003 | 31 | 5
| 6 | 8 | 50 |
3,351 | |
| November 2003 | 19 | 10
| 4 | 6 | 39 |
3,390 | |
| December 2003 | 32 | 9
| 4 | 8 | 53 |
3,443 | |
| January 2004 | 48 | 7
| 8 | 12 | 75 |
3,518 | 224 |
| February 2004 | 191 | 19
| 18 | 41 | 269
| 3787 | 256 |
| March 2004 | 231 | 26
| 17 | 63 | 337
| 4124 | 368 |
| April 2004 | 173 | 35
| 21 | 60 | 289
| 4413 | 296 |
| May 2004 | 166 | 53
| 26 | 54 | 299
| 4712 | 342 |
| June 2004 | 257 | 56
| 15 | 76 | 404
| 5,116 | 512 |
| July 2004 | 198 | 57
| 11 | 38 | 304
| 5,420 | 390 |
| August 2004 | 228 | 61
| 10 | 23 | 322
| 5,742 | 521 |
| September 2004 | 253 | 75
| 15 | 34 | 377
| 6,119 | 459 |
| October 2004 | 226 | 44
| 9 | 77 | 356 |
6,475 | 489 |
| November 2004 | 384 | 70
| 25 | 133 | 612
| 7,087 | 617 |
| December 2004 | 267 | 32
| 16 | 95 | 410
| 7,497 | 595 |
| January 2005 | 222 | 33
| 9 | 100 | 364
| 7,861 | 527 |
| Not Classified | 12 | 1
| 0 | 8 | 21 |
7,882 | |
| Totals | 5,262 | 924
| 293 | 1,403 | 7,882
| | |
| | |
| | | |
|
Annex 2
Letter from Irwin Mitchell on behalf of the British
Coal VWF Litigation Solicitors Group to Nabarro Nathanson
Re: British Coal Vibration White Finger Litigation Services
Claim: Throughput and aspirational end dates
Your clients have previously given aspirational end dates
for services claims of end of 2006 for completion of all medical
assessments and end of 2007 for all settlements. In your client's
report to the Court it was suggested that there may have been
six months slippage in relation to the timetable for completion
of medical reports.
We have been reviewing the latest statistics that have been
made available to us. These are the VWF Services Key Stage Report
as at 14 November 2004 and the figures that we have been given
at the meeting on 29 November which show throughput together with
the information contained in your client's report to the Court.
Paragraph 7 of the report to the Court shows that some 30,452
claims questionnaires had been received at IRISC. Of these 28,155
are being worked by IRISC and 2,297 are "parked" pending
completion of the general damages stage.
This is broadly in line with the figure in row four of the
VWF Services Key Stage Report which records the number of cases
in which questionnaires had been received as 30,004. the difference
between the two figures is presumably explained by the differing
dates at which the count has been raised. There is a three to
four week gap and questionnaire receipts appear to have been running
up to the 15 November at 122 per week on average.
OFFERS
If the figure for questionnaires received is taken as 30,452
and this is then reduced by the figures contained in the services
key stage report of 14 November 2004 for
— Offers outstanding 2,258
— Settled with outstanding issues 4,309
which together total 8,252.
This leaves 22,200 cases on which an offer still has to be
made if only those cases in which questionnaires have not yet
been received are considered. Over the 12 weeks to 15 November
offers were running at 119 per week.
22,000 divided by 119 gives a figure of 186—the number
of weeks it would take, at that rate, to make offers only those
cases in which questionnaires have been received to date. The
potential pool of outstanding claims is some 22,227 greater (paragraph
7 of the DTI's Court Report) which would require an additional
186 weeks making a total period to offer on the two pools of 372
weeks or seven years all of which makes the aspirational end date
for the scheme look optimistic. According to paragraph 6(b) of
the report for the DTI for the July Hearing this was end of 2007.
MEDICALS
If the number of cases being worked by IRISC (30,452) is
reduced by the number settled, denied etc 8,252 this gives a figure
of 22,200. if that figure is further reduced by the number of
medical reports in progress 2,995 and claims where medical reports
have been received but an offer has yet to be made 3,846 this
leaves a figure of 15,159, most of which will require a medical.
(The exception being a small proportion denied or withdrawn pre
MAP).
Medical reports were running over the 12 week period to 15
November at an average of 152 a week and at that rate it would
take 99.7 weeks to do medical reports in the existing cases in
which questionnaires have already been received. That is virtually
two years instead of one year to the end of year 2006, from which
the DTI acknowledged they are six months behind schedule.
It appears that the slippage in relation only to the cases
in which questionnaires have been submitted is greater.
It is understood that CHS have been recruiting with a view
to increasing capacity. They have recruited some sessional doctors
and a second wave of recruits was scheduled to undergo training
starting last week. I do not believe that we have had details
of the numbers and/or likely capacity yet, but clearly it will
take some fairly dramatic increase in capacity to complete all
medical reports within two years (a year after the aspirational
end date) if a significant proportion of the 22,277 claimants
who are eligible to pursue a services claim but have yet to submit
questionnaires. Such claimants have a further six months to the
cut off date.
MAP THROUGHPUT
Overall, looking at the statistics, there must be concern
about the throughput for MAPs, but perhaps more significantly
concern about throughput at IRISC.
THROUGHPUT
From the services key stage report there are over 9,000 claims
at the initial stages of investigation with IRISC and a further
2,101 at the helper call stage.
CONCLUSION
On the basis of the information available it appears that
there is little prospect of achieving anything close to the aspirational
end date for completion of medical reports (end of 2006) or settlements
(end of 2007). This is a matter of some concern and we should
be obliged if your clients would share their latest projections
(together with the figures and assumptions upon which they are
based) with us so that we can discuss these issues when we next
meet in January next year.
Irwin Mitchell
22 December 2004
| 
