Recent court judgment concerning conduct of insurers in mesothelioma claims

Friday, 11 January 2008

The Senior Master of the Royal Courts of Justice, Master Steven Whitaker, recently handed down his judgment in a case that highlights the conduct of some insurers/defendants in asbestos litigation.  Please click here to read the full judgment of Spink v Shepherd Construction Limited and J Pullan & Sons Limited.

The case involved a claim on behalf of a gentleman who was suffering from the asbestos related cancer, mesothelioma, as a result of his occupational exposure to asbestos from cutting up asbestos building sheets.  The judgment concerned an application on behalf of the second defendant to set aside a judgment that was entered by the Claimant’s solicitors when they failed to respond to the court proceedings in time.

The Senior Master was critical of the conduct of the second defendant/their representatives and provided some valuable insight about his experiences when sitting as a judge who specialises in asbestos claims, operating a specialist protocol for urgently dealing with mesothelioma claims in the High Court in London.

Master Whitaker stated:

“The importance of investigating liability issues during the pre-action protocol period in claims in which the victim of asbestos exposure is still alive but is certain to die, cannot be over-stressed.  The live victim is an extremely valuable source of evidence and of comment on potential defences.  Equally it is vital that live victims are able wherever possible to know the detailed nature of the defence that is raised and for them to be able to deal with it while still alive.  Sadly, ever since this list for asbestos disease claims was introduced in May 2002 I have had to complain continually about the failure of defendants or their insurers to investigate liability at all during the pre-action protocol period.  It is still today not unusual to find, as in this case, that no investigation has been undertaken until the instruction of solicitors for the defendants and after proceedings have been commenced.”

After a detailed consideration of the facts of the case and in particular, failures by the second defendant and their representatives to carry out urgent investigations, the Master went on to state:

“…This is all indicative unfortunately of an attitude to these urgent live claims, in which it is certain that the claimant is going to die and may die very soon, that the protocol may safely be ignored.  The failures of the second defendants and their insurers in this case are made all the more stark because they are able to be held up for comparison with the prompt and efficient treatment of this urgent live mesothelioma claim by their co-defendants and their insurers.”

The judgment comes at a time when the government is involved in dialogue with stakeholders about how to speed up and improve mesothelioma claims, particularly before court proceedings are started.

Kevin Johnson, a solicitor who specialises in claims on behalf of mesothelioma sufferers said:

“Unfortunately, this judgment serves to confirm what specialist law firms like ourselves have known for some time, that some insurers and defendants do not take these cases seriously and do not deal with them urgently, until court proceedings have been commenced and served on them.  In our experience, we are only able to recover appropriate compensation in these cases after court proceedings have been issued using a specialist court system.  We hope that the government will pay heed to the Senior Master’s comments when considering litigation reform and that they will refrain from taking action that may inhibit and penalise mesothelioma victims by sanctions or the like if they begin urgent court proceedings.”

John Pickering and Partners LLP- Specialist asbestos solicitors

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 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 the victims of asbestos.

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

Further information:
Kevin Johnson, Partner
John Pickering and Partners LLP
19 Castle Street
Liverpool
L2 4SX

Telephone: 0151 227 1214

E-mail: kj@johnpickering.co.uk
Website: www.johnpickering.co.uk

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