The mesothelioma fast track procedure

05 February 2019

Mesothelioma sufferers cannot afford to let the wheels of justice grind at their usual pace. The cancer has the dubious distinction of having a very long latency but a usually very short life expectancy when diagnosed. Aside from these medical reasons, the time taken to get medical records and tracing insurers and employers who may no longer be in business could delay achieving compensation in their lifetime.

Many sufferers often do not live long enough to know the outcome of their claim and indeed many claims are made by surviving relatives as representatives of the deceased’s estate. Some sufferers of the disease may feel that they have insufficient time to pursue a claim for themselves and need to focus on securing financial security for their dependants.

High Court Fast Track process for mesothelioma claims

That is why specialist High Court procedures exist to ‘fast track’ mesothelioma claims as swiftly as possible. Under the ‘Mesothelioma Practice Direction (PDD3)’, the defendant (i.e. the firm or individual responsible for negligently exposing you to asbestos fibres in the first place) has to ‘show cause’ at a rapidly arranged initial hearing in front of an expert judge as to why judgment should not immediately be entered in favour of you, the mesothelioma claimant, at that initial hearing.

This essentially reverses the burden of proof in mesothelioma claims and places the onus on defendants to obtain supportive evidence which has to be ‘more than fanciful’ to support a denial of liability in any case for mesothelioma compensation.

Reasonably foreseeable risk and duty to take precautions remains good law

Even so, it is sometimes not always enough to be simply diagnosed with mesothelioma and to identify a time and a place when the exposure took place. A well tried defence by defendants has been to maintain that asbestos exposure was below a limit set out in a Technical Data Note (TDN13) issued by the Factory Inspectorate in 1970.

This stance was apparently validated by a judgment in the case of Williams v University of Birmingham [2011]. Defendants argued that exposure to asbestos was ‘low level’, below that limit set out in TDN13, and that they therefore could not be held responsible for the development of any subsequent mesothelioma.

Fast track claims previously dismissed could be re-opened

However, low level does not mean safe level. TDN13 was never intended to confirm a ‘safe’ level of exposure to asbestos (there is none) and was also based on the risk of someone developing asbestosis rather than the more aggressive mesothelioma. The Court of Appeal decision in Bussey v Anglia Heating Ltd [2018] EWCA Civ 243 overturned that possible defence and more claims are now likely to succeed – even those advised (rightly) not to proceed with their claim after the 2011 judgment – although you will still have to show that you would have had a convincing case.

In order for this fast-track procedure to be followed, witness statements (as may be available) about liability must still be served, but moving the case forward as quickly as possible will help to ensure mesothelioma compensation is secured swiftly for a claimant during their lifetime and their period of greatest need.

The importance of using an experienced, specialist solicitor

Making use of the London High Court’s specialist fast track procedure is a vital tool used by specialist solicitors to ensure a claim for mesothelioma is dealt with on an urgent basis. Claimants also benefit from knowing that their cases will be considered by senior judges with a wealth of experience of dealing with asbestos disease cases.

Non-specialist firms may not be aware of this procedure. Consequently there may be significant delays in hearing the claim and victims may have to rely on judges without the necessary knowledge and expertise to decide upon the often complex issues surrounding these asbestos-related claims. Families could face lengthy delays or incorrect procedural decisions by a District Judge, without the time to appeal before the sufferer passes away.



This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024

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