On the 17^th October 2007 the House of Lords handed down judgment in the pleural plaques test cases (collectively known as “Rothwell”[1]).  Essentially, their Lordships decided that because pleural plaques are typically asymptomatic and do not progress in themselves to cause other asbestos disease, then they should not be considered as a compensatable condition.  This reversed the practice for over 20 years when many successful claims for pleural plaques had been made by claimants.  It meant that future pleural plaques claimants would no longer be eligible to recover compensation and many individuals with ongoing claims were left disappointed and uncompensated by the judgment.

 

 

There then followed active campaigning by asbestos support groups, claimant lawyers, trade unions, etc. on the one hand to reverse the judgment and the insurance industry on the other to maintain the status quo.  In Scotland, legislation was introduced to reverse the ruling[2], but the Government in England and Wales were less forthright and issued a consultation paper.  The ultimate result of all of this was that in August 2010 the Ministry of Justice introduced the Pleural Plaques Former Claimants Payment Scheme.  Eligibility of the scheme is set out in greater detail on the MoJ website[3]. In order to be eligible to qualify for payment through the scheme, you must have been diagnosed with pleural plaques as a result of exposure to asbestos and have attempted to claim damages for the condition prior to 17^th October 2007.  Specifically:-

 

1.         As part of your damages claim, you must have a) issued a claim form or b) sent a claim letter prior to 17^th October 2007 (in line with the Pre-Action Protocol for Disease and Illness).  Or

 

2.         Prior to 17^th October 2007 you must have named a defendant/insurer to make your claim against, approached a legal/trade union representative about your case and received confirmation that your case was being taken on.

 

In addition, you must:-

 

• Not have received any interim payments from your claim of £5,000 or more;
• Have never resolved your case.

 

The MoJ website explains how to apply and what documentation is required.  It is intended that the scheme is a no fault system with no costs or disbursements being awarded to legal representatives.

 

However, the information on the MoJ website is somewhat scant and practitioners in this area may have received many calls from former clients seeking advice about their eligibility.  It was as a result of such enquiries that I sought clarification from the MoJ about a number of issues.  Their response to my correspondence can be found on our website.[4]

 

Unfortunately, it would seem the MoJ’s response raises as many questions as it probably answers and former clients and practitioners in this area will still be uncertain about potential eligibility.  In brief, the MoJ’s response states:-

 

1.         Claimants where the pleural plaques sufferer has died will not be eligible, i.e. claims by executors, next of kin, etc.

 

2.         Overseas claimants may be eligible (provided that they meet the criteria laid out in the scheme).

 

3.         Para-occupational claimants may be eligible, eg clothing cases, environmental exposure, etc.  However, the requirements of proof, such as employment records of family members whose employment led to the exposure, may be difficult for many clients to satisfy. 

 

4.         Claimants with other asbestos related diseases who have brought past successful civil claims and received damages may still be eligible for a payment under the pleural plaques scheme.  They must be able to show that any compensation was not intended to be for the plaques.

 

5.         Claimants will receive payments of £5,000 in full unless they have received a payment for plaques.

 

None of this is set out on the MoJ’s website and unfortunately, the detail that they provide about the scheme on their site is woefully inadequate.  It is likely that many potential claimants (especially in category 4) will assume they are not eligible and will not apply.  The MoJ clearly needs to do much more to highlight the situation, particularly as there is a deadline for submitting applications of 1^st August 2011. 

 

The position in relation to claimants in category 4 will probably come as something of a surprise to many practitioners.  Indeed, a former client of mine whom I acted for in a pleural thickening claim and who received a six figure award, has recently received £5,000 under the MoJ scheme.  It seems that clients who had successful claims for diffuse pleural thickening and asbestosis may be eligible (as well as surviving claimants with asbestos related malignancies presumably). 

 

It also seems that claimants who made successful pleural plaques claims and settled cases on a provisional damages basis receiving less than £5,000 might also be eligible, but this has not been clarified by the MoJ. 

 

The scheme raises many unanswered questions and uncertainties persist.  The message for potential claimants must be that if they are in any doubt they should apply. 

 

For legal practitioners, there will be administrative issues in making sure that they are able to identify all former clients who might potentially be eligible.  It may perhaps also raise issues about whether duties are owed by solicitors to former clients, where the retainer has ceased, to advise them about their eligibility under the scheme.  Regrettably, the MoJ has done little to publicise the scheme or highlight what types of former claimants could be eligible.  Furthermore, support groups, politicians, the media, etc, will perhaps understandably take a dim view if legal representatives make charges to former clients for simply processing these applications given the intended purpose of the scheme and the modest compensation to the sufferers.

 

November 2010

 

 

About John Pickering and Partners LLP

John Pickering and Partners LLP- Specialist mesothelioma compensation solicitors

 

We are a dedicated personal injury law firm who do not do other types of work.  We specialise in claiming damages for asbestos sufferers. We have been handling compensation claims for industrial disease for over 30 years. Most of our work involves acting for asbestos disease victims who suffer from mesothelioma, lung cancer, asbestosis and pleural thickening. We only act for the sufferers of asbestos diseases and never act for the organisations that caused the asbestos exposure or their insurers. We have an ethical approach and donate 10% of our net profits every year to good causes that help asbestos sufferers.  We have set up a charitable trust to help to fund medical research into mesothelioma and various organisations that help and support asbestos sufferers and their families.

 

Find out more about our donations to good causes. We have also been involved in most of the landmark judgments that shape this area of law. Find out more about us or  our reported cases. We are on the panels of several asbestos support groups and are ranked highly by legal guides.  Find out more about what others have said about us.

 

John Pickering and Partners LLP is a niche legal practice that has represented Claimants in the leading asbestos "test cases" in the last ten years. The firm represented Sylvia Barker in Barker v Corus (UK) Plc, a case that highlighted the legal tactics of employers and insurers trying to cut back their compensation liabilities to mesothelioma sufferers, and which prompted the amendment of the Compensation Act 2006 to ensure full compensation for mesothelioma claims. The firm represented two of the three Claimants in the landmark Fairchild appeal, in which the insurance industry tried unsuccessfully to block compensation altogether for mesothelioma sufferers unable to identify which of two or more sources of asbestos exposure had caused their illness.

 

The firm represented Alice Jefferson, a mesothelioma sufferer, whose illness and compensation claim against Cape Asbestos were featured in the important documentary "Alice: A Fight For Life." Shown by Yorkshire Television in July 1982, the programme was an important catalyst for legal change and public awareness of the plight of mesothelioma and other asbestos disease sufferers and a prompt for important legal reform.

 

Mesothelioma is a type of cancer that affects the lining of certain bodily organs. It most commonly affects the lining of the lungs (the pleura) but it can affect other areas including organs in the abdominal cavity (the peritoneum).

 

More than 2,000 people are diagnosed with mesothelioma every year in the UK and there is one mesothelioma death every five hours. The number of deaths from mesothelioma increased from 153 in 1968 to 1,969 in 2004 and is expected to peak at 2,450 between 2011 and 2015. 

 

The first Action Mesothelioma Day was launched on 27th February 2006.  Its objectives were to raise awareness about mesothelioma, to improve the treatment and care of mesothelioma patients, and to lobby for better funding for research into mesothelioma and for the protection and education of people who may be exposed to asbestos.

If you need advice about an asbestos related illness, contact us now for information about making a claim for compensation.

 

Contact us to find out more about your entitlement to claim compensation if you have been diagnosed with mesothelioma, asbestosis, lung cancer or pleural thickening.

 

For more information about asbestos diseases-

www.johnpickering.co.uk

 

For practical information and support concerning mesothelioma-

www.mesothelioma-advice.co.uk

 

For more information about claiming for different types of asbestos disease-

Mesothelioma compensation claims

Lung cancer compensation claims

Asbestosis compensation claims

Pleural thickening compensation claims

 

 

For more an explanation about different types of asbestos conditions-

Different asbestos conditions

 

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