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Disease: Mesothelioma update

DWF’s Disease update on the just published “Reforming mesothelioma claims” consultation and progress on the Mesothelioma Bill.

“Reforming mesothelioma claims” consultation

The MoJ has now published its consultation “Reforming mesothelioma claims” with responses required by 2 October 2013.

The Consultation sets out the Government‟s proposals for reforming the way mesothelioma claims are dealt with to ensure that claims are settled as quickly and efficiently as possible for sufferers and their dependents. In brief:

  • To speed up claims, the introduction of a dedicated pre-action protocol for mesothelioma (MPAP) is proposed, which would seek to encourage more claims to be resolved quickly and efficiently without the need for litigation through the courts.
  • Views are sought on the insurance industry‟s plan to set up a secure electronic informationgateway to support quicker and more transparent information gathering and management in all mesothelioma claims, including those cases which do not go through the MPAP or for which a liable employer cannot be traced.
  • To reflect the lower underlying legal costs expected as a result, the Government is also consulting on the principle and structure of setting constraints, in the form of Fixed Recoverable Costs (FRCs), on the legal fees which successful claimants may recover from defendants under the new standard stages of the MPAP.

With these proposals, the Government states that it is aiming to build on the action it is already taking:

  • on untraced mesothelioma cases in the Mesothelioma Bill. This was introduced in Parliament in May 2013 by the Department for Work and Pensions (DWP), creating a compulsory payment scheme for victims of mesothelioma who are unable to trace a liable employer, or liable employer liability insurer, from which to claim damages. Subject to Royal Assent, this untraced scheme is planned to come into force in July 2014.
  • mesothelioma sufferers will also be able to make their claim direct against an insolvent defendant‟s insurer under the Third Parties (Rights against Insurers) Act 2010 thereby removing the need to sue the insolvent defendant first. The 2010 Act is to be brought into force as soon as practicable after it has been amended to ensure it covers at least the same types of insolvency as the 1930 legislation it is intended to replace. Legislation to effect the amendments is to be introduced as soon as parliamentary time permits.

The consultation also covers the review, in accordance with section 48 LASPO 2012, of the likely impact on mesothelioma claims of the conditional fee agreement (CFA) reforms which came into effect on 1 April 2013 if those provisions are now commenced for these types of case.

The Government is keen to hear views on its proposals and is open to any further proposals.

DWF will be responding to this consultation - if you would like to be involved in our discussions on the topic please contact Derek Adamson, Head of Occupational Health and Casualty on 0121 200 0437 or at derek.adamson@dwf.co.uk

MoJ’s consultation “Reforming mesothelioma claims"

Mesothelioma Bill - update

The Mesothelioma Bill completed its third reading, the final chance to amend the bill, in the House of Lords, on 22.7.13. It now passes to the House of Commons for its consideration - a date is yet to be scheduled. Changes included:

  • Employer‟s liability insurers have now agreed to pay 75% instead of 70% of civil compensation for mesothelioma victims that cannot trace their insurer.
  • Where an individual has tried but failed to bring a claim against a relevant employer and any other relevant employer existed, the individual must attempt to bring a claim against that employer also before being able to come to the scheme.
  • The administrator of the scheme will be selected through an open-tender route.

For further information, please contact Ian Macalister, Partner on 0161 603 5082 or at ian.macalister@dwf.co.uk

Mesothelioma debate on Parliament TV

Lords Hansard Mesothelioma report

Mesothelioma Bill web page

FCA and tracing rules

From 4 December 2013, employers‟ liability tracing rules will be included in the Financial Conduct Authority‟s (FCA) supervisory framework and the process will apply to all employers‟ liability insurers (whether ELTO members or not) and regardless of size. The FCA is strengthening its existing rules with new requirements for firms to have effective processes for conducting tracing searches for historical policies upon receipt of a request from a consumer or a consumer's representative.

If an insurer is expelled from ELTO for not tracing as it should or the FCA receives other intelligence suggesting poor or non-existent tracing, the FCA will commence enforcement action, which can include a supervision visit from the FCA.

The FCA

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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