Reuben Glynn explains how, in our experience, costs budgeting will affect Mesothelioma claims and what practitioners need to consider when approaching these claims.
Mesothelioma is a form of cancer caused by exposure to asbestos. The exposure can go back decades and more often than not will have occurred during the course of employment duties. The associated debilitating symptoms and condition can, and will, have a huge effect on the sufferer as well as their family.
The deterioration in symptoms and condition can be rapid and as such the manner in which litigation is conducted in claims will also be impacted. The importance has been acknowledged by the Ministry of Justice in accordance with Practice Direction 3D. The intention is to fast track cases particularly in living Mesothelioma claims where a Claimant has a limited life expectancy with a listing of Trial within 16 weeks of service of the Claim Form.
There is no mention of costs management in Practice Direction 3D however we have found through experience that ‘Fatal Mesothelioma’ claims will be subject to costs budgeting. The Court will ordinarily dis-apply cost management in ‘Living Mesothelioma’ claims where a Claimant has a limited or severely impaired life expectation (5 years or less remaining) in line with Practice Direction 3E 2(b).
By virtue of Section 48 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the changes relating to recoverable success fees and ATE premiums that are made by Sections 44 and 46 of the LASPO Act may not be commenced and, accordingly, will not apply in relation to Mesothelioma claims. It will remain possible for a costs order in favour of a party to such proceedings to include provision requiring the payment of success fees and ATE premiums. As such, the provisions of the CPR relating to funding arrangements (as in force immediately prior to 1 April 2013) will continue to apply in relation to such proceedings, whether commenced before or after 1 April 2013.
Fixed Recoverable Success Fees
The fixed recoverable success fees in respect of Employers’ Liability Disease claims is found in the pre-LASPO version of the CPR in Section V of Part 45 (CPR 45.23 to 45.26). A disease or physical injury caused by exposure to asbestos falls under ‘Type A claim’. The applicable success fee is 27.5% for CFA funded matters or 30% for CCFA funded cases. The success fee will be 100% if the matter proceeds to Trial. The applicable success fee for Counsel is dependent upon case allocation and stage of settlement (see Tables 6 & 7 in CPR 45.25).
Good News For Claimant Practitioners
The matter of Coventry v Lawrence had implications for Mesothelioma claims and as such, submissions were made by a number of interveners including a representative of the Asbestos Victims Support Group. Judgment was found in favour of the Appellants with the Respondent being ordered to pay both the success fee and ATE premium. This was good news for Claimant practitioners in relation to the recoverability of additional liabilities and ensured that Claimants and their families in Mesothelioma cases would continue to receive 100% of the compensation awarded to them.
Reuben Glynn is the Managing Director of PIC.
To contact him regarding this blog or any costs matter, please click here.