New High Court Mesothelioma Practice Direction

01/09/2008

By Jonathan Herbert, Legal Executive in Chemical Poisoning and Asbestos.

Up until 1999 the structure of the civil justice system in this country resulted in a clear divide between County Courts and the High Court. They even each had their own set of Rules and procedures.

In 1999, the Civil Procedure Rules came into force. One impact was a single set of Rules applicable to High Court and County Court alike.

The need for change; some inconsistencies remained. For example, in the High Court, Master Whitaker implemented the Fast-track procedure for mesothelioma claims, but this was not adopted widely elsewhere making the management of mesothelioma claims nationwide unpredictable and possibly slow. On 06 April 2008 (yes, a Sunday) the Court's Case Management Powers were extended by the coming into force of a Practice Direction covering mesothelioma claims. All civil Courts are governed by this. Key points:-

A “show cause” procedure is established requiring the defendant to identify the evidence and legal arguments that give him a real prospect of defending the case successfully. This means that unless the defendant can give good reason, a judgment on liability will be entered against him and an order that he make an interim payment will be made. To make use of the “show cause” procedure, claimants must lodge specific documents including “Particulars of Claim” (which essentially sets out the factual history and allegations of negligence or breach of statutory duty), an HM Revenue and Customs work history, any pre-action letter of claim and witness statements (dealing with employment history, exposure to asbestos with relevant employers and details of all claims made and payments received under the Pneumoconiosis etc. (Workers' Compensation) Act 1979). Claims involving severely limited life expectancies may be managed even more urgently, if requested.
Cases with living claimants will take priority: the date of the determination of damages or trial will generally not be more than 16 weeks following service of the claim form.
The Courts can agree to hear evidence by DVD.

Interestingly, the courts have a discretion to disapply strict adherence to any relevant pre-action protocol in living mesothelioma claims. There is in existence a pre-action protocol for disease and illness claims and there is, we understand, a pre-action protocol for mesothelioma claims in the pipeline.

The future

In the future, in living mesothelioma cases there would appear to be an option: follow the protocol, or ignore it safe in the knowledge the court might not mind. Maybe the potential for inconsistencies and unpredictability will continue after all?