Case track limits and the claims process for personal injury claims. Response to DCA consultation by John Pickering and Partners LLP

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1 Case track limits and the claims process for personal injury claims Response to DCA consultation by John Pickering and Partners LLP Contact details Kevin Johnson Neil Fisher Partner Partner John Pickering and Partners LLP John Pickering and Partners LLP 19 Castle Street St Ann s Passage 29/31 King Street Liverpool Manchester L2 4SX M2 6BE T: T: F: F: E: kj@johnpickering.co.uk E: nf@johnpickering.co.uk John Pickering and Partners LLP is a limited liability partnership registered in England and Wales, registered number OC Our registered office is 20 Clare Road, Halifax, West Yorkshire, HX1 2HX. A list of members is available from our registered office. The term "partner" if used denotes a member of John Pickering and Partners LLP or an employee or consultant of John Pickering and Partners LLP with equivalent standing and qualifications. We are regulated by the Law Society. We also have offices in Manchester and Liverpool. For further information please visit our website:

2 Case track limits and the claims process for personal injury claims About John Pickering and Partners John Pickering and Partners LLP is a specialist legal practice, established in 1979, handling personal injury and particularly industrial disease claims. Claims on behalf of asbestos disease sufferers constitute most of our work. The practice has represented the claimants in most of the leading cases relating to asbestos-induced disease in the last 10 years, including: Margereson v J W Roberts Limited, [1996] PIQR 358 (CA) Quinn v Ministry of Defence, [1997] EWCA Civ 2865 Lubbe and others v Cape Plc, [2000] UKHL 41, [2000] 4 All ER 268 (HL) Ballantine v Newalls Insulation Company Limited, [2000] PIQR Q327 (CA) Fairchild v Glenhaven Funeral Services Limited, [2002] UKHL 22 Maguire v Harland and Wolff, [2005] EWCA Civ 1 Rothwell v Chemical Insulating Company Limited, [2006] EWCA Civ 27 Rice and Thompson v Secretary of State for Trade and Industry, [2006] EWHC 1257 (QB) Barker v Corus UK Plc, [2006] UKHL 20, [2006] 3 All ER 785 (HL) The last of these cases, Barker v Corus UK Plc, prompted urgent amendments to the Compensation Bill, now the Compensation Act John Pickering and Partners LLP represents only claimants in asbestos related disease claims. We have a policy of trying to urgently pursue claims on behalf of asbestos disease sufferers so that, whenever possible, such claims are concluded within their lifetimes. Most of our cases are litigated in the multi-track. However, proposals to increase the fast track limit could potentially affect claimants with benign asbestos diseases such as asbestosis and diffuse pleural thickening. Against this background of long experience of asbestos disease claims, we believe that we are in a knowledgeable position from which to comment authoritatively upon the impact that these reforms may have upon asbestos disease sufferers and other personal injury claimants, particularly individuals who have contracted forms of occupational disease. Some aspects of the consultation relate to issues that are outside of our normal practice area. Therefore, we have declined to respond to several of the questions posed in the consultation. In response to other questions, our responses are made in the context of the impact upon industrial disease victims and especially asbestos disease sufferers. 2

3 Response to DCA consultation by John Pickering and Partners LLP Question 1. Do you agree e that the small claims limit for personal injuries should remain at 1000 in view of the proposals to improve the claims process? If not, please set out your reasons why and state what you consider the appropriate level would be. Whilst we do not accept all of the consultation paper s proposals to improve the claims process, we do agree with the proposal that the small claims limit should remain at Question 2. Do you agree that the small claims limit for housing disrepair should remain at 1000 for disrepair and 1000 for damages? If not, please set out your reasons why and state what you consider the appropriate level would be. No response. Question 3. Your views are sought on whether the process for dealing with housing disrepair cases can be improved and simplified, and if so, how this could be achieved. No response. Question 4. Do you agree that the small claims limit for other claims should remain at 5000? If not, please set out your reasons why and state what w you consider the appropriate level would be. We agree with the proposal that there should not be any change to the small claims limit of 5000 for other claims. Question 5. Do you agree that the fast track limit should be increased to 25,000? 00? If not, please set out your reasons why and state what you consider the appropriate level would be. We do not agree that the fast track limit should be increased to 25,000. Our primary concern is that such an increase could capture certain industrial disease claims that routinely give rise to complex issues in relation to liability, causation and quantum. For example, VWF/HAVS, deafness claims (OIHL), RSI and respiratory 3

4 Case track limits and the claims process for personal injury claims disease claims including occupational asthma and benign asbestos diseases could fall into this new increased fast track. This would not be desirable. We do not consider that quantum is the most appropriate yardstick to determine in which track the claim should be litigated. We believe that the complexity of these claims and the importance of these claims to claimants render them incapable of being properly dealt with in the fast track. Claims for asbestosis and diffuse pleural thickening may be worth less than the proposed limit of 25,000, particularly where the claim is made on a provisional damages basis. Subject to the outcome of an appeal to the House of Lords 1, if pleural plaques should again become a compensatable injury, similar considerations apply to that condition. However, whilst the value of some such claims may be relatively modest, the importance of these cases to claimants can be significant and ought not to be underestimated. Where damages are sought on a provisional basis, this will enable claimants to seek further damages if they develop other asbestos diseases, including asbestos induced malignancy. It is obviously critical that claimants are able to secure provisional awards to enable them to apply for further damages if they develop asbestos related cancers. We do not intend to embark upon a detailed analysis of the particular problems that face asbestos litigants. That would be beyond the remit of this consultation. We have made submissions on similar issues in response to a recent consultation by the DWP. Please see the attachment to the covering for a copy of our response to the DWP Consultation about mesothelioma claims. In brief, extensive problems can arise with regards to tracing defendants, tracing insurers of defunct employers, establishing medical causation and in some circumstances, establishing breach of duty. Expert evidence is routinely required from consultant chest physicians, consulting engineers/forensic scientists, nursing care experts, etc. It would be prejudicial to claimants interests for these cases to be litigated in the fast track, particularly if proposals for fixed costs are approved. This would significantly constrain claimant solicitors in their efforts to trace employers and their insurers, particularly in multi-defendant cases, to investigate liability issues fully, establish if there is a clear diagnosis, etc. Any reform that would impede or undermine the rights of asbestos sufferers would be highly undesirable. We do note that at paragraph 40 of the consultation, recognition is given that some cases that fall within the bracket may not be suitable for the fast track, for example, due to their complexity or if the trial will take longer than one day. It is stated that judges will be able to allocate such cases to the multi-track. However, we are concerned that insurers/defendants will seek to oppose such cases being allocated to the multi-track because of likely costs savings. Indeed, we are aware of situations when district judges in pleural plaques cases (when previously compensatable), which often fell below the present fast tack limit of 15,000, declined to allocate 1 Rothwell v. Chemical & Insulating Co. Ltd. & Anor. [2006] EWCA Civ 27. 4

5 Response to DCA consultation by John Pickering and Partners LLP claims to the multi-track. This resulted in some anomalous first instance judgments that were subject to later appeals. Furthermore, if asbestos disease claims are not expressly excluded from these proposals then it will not be until the post-issue, allocation stage that they will be distinguishable from other significantly less complex PI claims. Claimant representatives may have to contend with insurers seeking to argue pre-issue, that such cases should be treated as fast track claims. It is not until after proceedings are issued that there is an opportunity for claimants to have their cases allocated and for complex cases to be distinguished from other claims of comparable value. This could lead to significant delays in claims because claimant representatives may have been inhibited until the case has been allocated to the multi-track from carrying out certain necessary investigative steps, or may have kept investigations in abeyance in accordance with the proposal at paragraph 59. If in spite of our reservations, the fast track is increased to 25,000, we believe that asbestos disease claims ought to be excluded from this category altogether, in a similar way that appears to be proposed for clinical negligence cases. Asbestos litigation is one of the most fiercely litigated and most fast evolving areas of the law. Defendants/liability insurers are constantly seeking to raise technical challenges about the compensatability of particular diseases, whether certain policy wordings exclude cover for certain claims, technical defences in relation to generic causation issues, etc. In our submission, it would be plainly wrong and inimical to the rights of asbestos disease sufferers for them to be categorised with lower value, significantly less complex PI claims. Therefore, express guidance, preferably contained within amendments to the CPR, ought to be given to specifically exclude asbestos disease claims from allocation to the fast track. Question 6. Are there any measures that would make the handling of intellectual property claims more efficient and effective? If so please tell us what those measures are. No response. Question 7. If the difficulty of dealing with intellectual tual property cases is not the court process, what are the difficulties and how could they be resolved? No response. Question 8. You may consider that different measures would be appropriate for different kinds of intellectual property- for instance because patent cases involve questions of 5

6 Case track limits and the claims process for personal injury claims technology. If you have a response directed to a particular kind of intellectual property only, please say so. No response. Question 9. Do you agree that these proposals set out a procedure for dealing d with claims which will provide fair compensation in a more timely and cost-effective way? If not please say why and set out alternative proposals. We believe that the proposals are not appropriate to asbestos disease claims and reinforce us in our concerns outlined at response 5 above and our view that asbestos disease claims ought to be excluded entirely from this process. We do not wish to undertake an extensive analysis as to why these proposals are unworkable for asbestos claims. This will be readily apparent to anyone with a perfunctory understanding of asbestos litigation. Problems in investigating liability, tracing insurers, establishing causation, etc in asbestos litigation do not lend themselves to the suggested reforms. Question 10. Do you have any comments or suggested amendments in relation to the draft forms? The forms are not particularly appropriate or helpful for more complex industrial disease claims where more individualised, tailored information has to be provided (currently in the form of a letter of claim) than pro forma documents may permit. This proposal may increase legal costs in disease claims as defendants seek clarification of various issues. Question 11. Do you agree with the above time periods? If not please state why not and what they should be. We do not consider that the time periods will be workable in the context of asbestos disease claims and we have reservations that the proposals will only cause further delays in the litigation process and the ultimate resolution of claims. It is our experience of asbestos disease claims that only a very small proportion settle without court proceedings being commenced. Whilst we do not have empirical data to substantiate this assertion, this has been our experience for almost 30 years. The reasons for this are multifarious. For example, it may be due to insurers being reluctant to confirm that they were on cover or refusals to accept that their insured were negligent. Regrettably, our experience of claims handling by some insurers is 6

7 Response to DCA consultation by John Pickering and Partners LLP that lengthy delays are routine. It is unusual for us to get a response on liability in most cases within the 3 month pre-action protocol period. We are particularly troubled by the suggestion at paragraph 59, page 29 that the defendant/insurer will have a set period of time to investigate the claim and that during this period the claimant s solicitor will refrain from carrying out further work. We believe that this proposal is prejudicial to our clients and will cause delay given the way in which claims are handled at present by insurers/defendants. We are concerned that the time will not be put to good use by insurers/defendants and that claimants investigations will only be deferred until a later date, as a result of which, further delay will be imported into the claims process. Question 12. Do you agree that where the amount of damages cannot be agreed there should be an application to the court through the simplest procedure possible? Please comment on what that procedure should cover. We do not consider that the procedure would be appropriate in asbestos and other more complex occupational illness claims. Question 13. Your views are sought on whether additional measures could be introduced that would help improve the process where liability is not admitted, or is denied. Master Whitaker operates a specialist track for mesothelioma claims in the RCJ. He has introduced a procedure known as show cause. In effect, this is a filter to weed out unmeritorious defences at the earliest stage in the proceedings, thereby reducing legal costs and disbursements and resulting in the swifter resolution of claims. We attach to the covering a copy of an earlier submission that we made to Liverpool County Court in relation to a local practice direction for asbestos disease claims. Our submission was designed to demonstrate the extensive legal justification already contained within the CPR for show cause. This show cause procedure has been particularly effective in speeding up living mesothelioma claims where time is critical due to the poor prognosis of sufferers. Different considerations clearly apply in other personal injury claims. Nonetheless, the principle of seeking to weed out clearly weak and unmeritorious defences at the earliest stage in the proceedings in our submission is a sound one and has potential application in lower value claims. Clearly, the detail of this procedure will require further consideration and possible consultation. Question 14. 7

8 Case track limits and the claims process for personal injury claims Do you agree with the proposals set out in Appendix 7? If not, please say why and set out any alternative proposals. We accept in principle that disproportionate enquiry should be avoided in relation to modest items of damage. However, any such arrangement would have to be subject to regular review. Furthermore, guidance should be given to insurers/defendants that any such items are not to be regarded as upper limits for recovery. Question 15. Do you agree that regional hourly rates should be set and if so, how should they be set? This might be desirable in relation to low value claims where liability is seldom in issue. However, there are other claims that could fall within the fast track (at least from a quantum perspective) where regional hourly rates would, in our view, be most undesirable. For example, many claims for occupational illness are dealt with by specialist practitioners. The amount of work carried out by specialist firms is likely to be less than non-specialist practitioners. Therefore, different hourly rates ought to be permissible in recognition of the specialist skills and expertise that such practitioners possess. Question 16. Your views are sought on the development of an a assessment tool for general damages. We do not believe that assessment tools would be appropriate or of assistance in relation to more complex claims where there is less uniformity of symptoms and claimant experience differs considerably. Such a tool would be quite inappropriate in relation to occupational illness claims. For example, individuals with a similar degree of loss of respiratory function may have considerably different experiences in relation to impact upon daily life and activities and general impairment suffered. We believe that the assessment of general damages in these cases is a function best left to the trial judge. We note that there has been considerable disquiet expressed by some practitioners about assessment tools currently in use by some insurers due to their lack of flexibility and pessimistic assessments. Question 17. Do you agree that there is little scope for standardising contributory negligence? If not, please set out how it might be done. 8

9 Response to DCA consultation by John Pickering and Partners LLP We agree that it would not be appropriate to seek to standardise contributory negligence. The assessment of contributory negligence is a fact sensitive exercise that is best determined by the trial judge. Question 18. Do you agree with the proposals in relation to t costs? If not, please give your reasons and set out any alternative proposals. We do not accept that the proposals are appropriate in relation to more complex industrial disease claims. These cases often incur considerable initial investigative costs to establish if there is a viable defendant/liability insurer, a clear and established diagnosis, etc. A fixed costs regime would not be conducive to the proper investigation of these claims and would lead to delay in viable claims. Question 19. Do you agree that ATE insurance cannot be justified in the circumstances set out above? If not, please give your reasons, identifying the risk that is being insured, and set out any alternative proposals. Again, we believe that industrial disease claims and particularly asbestos disease claims ought to be distinguished from other personal injury claims, particularly for the reasons set out at response 11 above. Different considerations apply for asbestos disease claims. We consider that the present regime should continue for asbestos claims. Question 20. What would be the impact on the ATE market of these proposals? We believe that these proposals would have a negative impact upon the ATE market and would not produce costs savings. The proposal to effectively curtail ATE for these claims runs contrary to the traditional insurance principle that the many pay for the few. Effectively, many of the claims affected by these proposals underwrite premiums in larger and more difficult litigation. We are concerned that this proposal will undermine the entire premise that ATE is based upon and lead to the already restrictive ATE market further contracting as more insurers withdraw. This would be contrary to public policy. At best, we consider that the proposal will result in a significant increase in premiums in more valuable and complex litigation. This is why we consider that the proposal will not result in savings to defendants/liability insurers. The proposal gives rises to a significant risk that access to justice will be impeded because 9

10 Case track limits and the claims process for personal injury claims claimants will be unable to get any insurance to cover their claim, either because of too few insurers in the market, conservative risk attitudes, or because claimants cannot afford increased premium levels. Conditional fee agreements with ATE insurance effectively substituted Legal Aid following the Access to Justice Act It is in this socio-political context that CFA s and ATE should be considered, rather than simply from the perspective of economic savings (the likelihood of which is questionable in our view). The presence of ATE allows claimants to protect themselves from paying the other side s legal costs and disbursements and their own disbursements in the event of an unsuccessful outcome and to pursue valuable and difficult cases that otherwise, they would not be able to afford to bring. Without ATE cover many claimants would simply be unable to pursue cases because of the exposure to financial risk. Therefore, this proposal has the potential to prevent access to justice by claimants who have difficult/valuable claims but cannot obtain ATE cover. Regrettably, those claimants affected are likely to be the most disadvantaged and vulnerable claimants, for whom the need for recompense is most acute. To deny such claimants access to legal recourse would be a significant injustice. Question 21. Do you agree that the new claims process should apply to all claims for personal injury, except clinical negligence, with a value of less than the fast track limit? If not, please give your reasons and identify which cases should use the proposed system. We emphatically submit that asbestos disease and other forms of complex occupational disease claims ought to be specifically excluded from the fast track and these proposals. As already stated above, these cases give rise to many difficult issues and are wholly different from other types of EL and PL claims. The claims are also of great importance to claimants concerned, especially where claims are made for provisional damages to preserve future entitlement to compensation. We contend that the default position should be that asbestos disease and other complex occupational illness claims are excluded from the fast track per se. Submissions can be made to the contrary at the point of allocation and appropriate case management directions can then be provided if appropriate. This would address many of our concerns about the problems that claimants may face pre-issue from defendants/liability insurers and would allay our concerns about the detrimental effect that these proposals will have upon the rights of asbestos disease sufferers. 10

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