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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