Mesothelioma Claims - Justice Committee Contents

6  The mesothelioma claims process: other issues

Third Party (Rights Against Insurers) Act 2010

30. A rare issue on which there appeared to be widespread agreement amongst our witnesses was the desirability of bringing into force the Third Party (Rights Against Insurers) Act 2010. This would enable a claim to be issued against an insurer without a judgment first having had to be obtained against an insolvent insured party. In his 2 July 2014 letter Lord Faulks referred us to the Written Statement made in April 2013 by the then Minister Helen Grant MP to the effect that the scope of the Act had to be extended by further primary legislation to include certain insolvency situations before it could be brought into force.[48] It appears that no private Member successful in the ballot for private Member' bills in Session 2014-15 has adopted the Government's proposed bill, and Lord Faulks was unable to provide us with a copy of the text of such a bill as it had not been finalised. We recommend that progress on drawing up this legislation be expedited with a view to its inclusion by means of amendment in a suitable Government bill this Session. The Small Business, Enterprise and Employment Bill, Part 10 of which contains a range of provisions concerning insolvency, would seem to be a suitable vehicle.

Production of medical records and employment histories

31. There was disagreement between witnesses on whether mesothelioma cases were inherently more or less complicated than analogous non-mesothelioma personal injury cases. There was, however, agreement that unnecessary delay was particularly distressing in relation to mesothelioma claims. The aggressive nature of the disease means that many sufferers die or reach the advanced stages of the disease before their claims are paid out. According to the NIESR, around 50% of mesothelioma claims take over 12 months to settle from when a claim is first lodged.[49]

32. Claimant lawyers said to us that hold-ups in production of medical records and HM Revenue and Customs employment histories were a major cause of frustration and delay in the process of making claims. On the latter point, Lord Faulks advised us that:

    we have secured cross­Government clearance to add an amendment to the Deregulation Bill to enable Revenue & Customs to restore their previous practice of disclosing work records of deceased victims of mesothelioma to their dependants and personal representatives without the need for a court order, which had sometimes held things up.[50]

This amendment relates solely to claimants seeking compensation under the Diffuse Mesothelioma Payments Scheme. In relation to the production of medical records, Lord Faulks appeared receptive to a proposal that further steps should be taken, perhaps through a Ministerial letter, to draw to the attention of acute trusts the need for urgency in dealing with mesothelioma cases.[51] We welcome the amendment which has been made to the Deregulation Bill to facilitate production by HM Revenue and Customs of employment histories of mesothelioma victims seeking compensation under the Diffuse Mesothelioma Payments Scheme. We recommend that the Ministry of Justice pursue in tandem with the Department of Health the provision of guidance to NHS trusts to expedite their production of medical records in mesothelioma cases.

Non-occupational claims

33. The Joint Union Asbestos Committee, in their written evidence, drew attention to the position of people who did not contract asbestos-related diseases from exposure in an occupational setting, such as those who may have been exposed at their schools when pupils.[52] Such cases, in which public liability insurance rather than employer's liability insurance is involved, are in the minority, but they may present additional difficulties in identifying the source of exposure. Helen Buczynsky of Unison told us that:

    We have seen the number of teachers exposed to asbestos diseases go up by 300% in 20 years, and the number of pupil claims coming through is obviously increasing as well. These are much more difficult claims, because they are to do with low exposure, and it is much more difficult to trace the history of that exposure and to gather witness evidence.[53]

Lord Faulks told us:

    We do not think, although these are concerning, that this justifies any change to our approach in relation to mesothelioma claims generally. The fact is that, in all sorts of fields of personal injury litigation, there are some cases which are a little more problematic than others, and these are obviously potentially slightly more difficult than the more traditional mesothelioma claims.[54]

It is essential that the distinctive features of non-occupational mesothelioma cases are taken into account in policy formulation, and their incidence is monitored. We accept, however, that these cases do not present sufficiently different problems to occupationally-related mesothelioma cases to justify different arrangements applying to them.

Further work

34. The Government's decision not to proceed with proposals for a Mesothelioma Pre-Action Protocol, a Mesothelioma Secure Claims Gateway and a fixed recoverable costs regime does not mean that beneficial change which could expedite the mesothelioma claims process is stymied. A "big tent" meeting held at the Ministry of Justice on 30 June 2014 brought together practitioners from all sides of the debate to explore ways in which the pre-action process could be streamlined and improved, as well as potential refinements of the Royal Courts of Justice specialist fast-track procedure. A member of this Committee attended the meeting as an observer.

48   HC Deb 25 April 2013 col 71WS Back

49   Study into average civil compensation in mesothelioma cases, Department for Work and Pensions, January 2014,
Table 3.10. Back

50   Q 73. The provision is in clause 67 of the Deregulation Bill as sent to the House of Lords. Back

51   Q 82  Back

52   Joint Union Asbestos Committee (MSC0012) Back

53   Q 17 Back

54   Q 76 Back

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