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Commercial Question

Asbestos – not yet consigned to history

updated on 17 January 2017

Question

What are the future issues for asbestos litigation?

Answer

Today the dangers of asbestos are well known and exposure to asbestos is often seen as a historical problem, only affecting Britain’s past industrial workforce. However, over 50 years since the front page of the Sunday Times declared that scientists had tracked down a killer dust disease, the issues for asbestos lawyers are still evolving and include changing sources of exposure to asbestos, challenges relating to evidence and ongoing attempts to reform the cost regime for personal injury (PI) cases.

Background: asbestos and mesothelioma

Asbestos is a lightweight, heat-resistant material which was used extensively in building materials and for insulation of buildings and ships from the 1950s to the 1980s. When asbestos dust particles are released into the air and are inhaled, it can lead to a number of serious illnesses. A complete ban on asbestos was introduced in the United Kingdom in 1999. 

Mesothelioma is a type of cancer that develops in the tissues which cover the lungs and abdomen. It is caused almost exclusively by exposure to asbestos dust. People with mesothelioma often do not develop the illness until many decades after they were exposed to asbestos. The average life expectancy for people diagnosed with mesothelioma is between 12 and 21 months depending on how advanced the disease is.

An evolving problem

Unfortunately, it is estimated that the number of people dying from asbestos diseases each year has not yet reached its peak. It is projected that there will be 2,500 deaths from mesothelioma every year until 2018, when numbers will begin to steadily decline. It is estimated that asbestos-related cancer accounts for 36% of annual deaths which are caused by work-related diseases, the largest percentage compared to other causes such as COPD and other cancer.

In November 2016 the Association of Personal Injury Lawyers released new figures which show that six people die of mesothelioma every day in England and Wales. The figures also show the regional variation in deaths from mesothelioma, with some past industrial areas having up to two-and-a-half times as many deaths as the national average.

However, in December 2016 it was reported by the BBC that councils in England have paid out £10 million in compensation to people who developed illnesses because of asbestos in school buildings, highlighting that the problem extends far beyond people who were exposed in factories carrying out manual labour.

Many schools built before 2000 are likely to contain some form of asbestos and it is estimated that as many as 300 adults die each year because of exposure to asbestos while at school. Many other public buildings and offices built before the year 2000 also contain asbestos. Therefore, the age and background of people suffering from asbestos-related disease in the future may be broader than those who have mainly been affected in the past.       

Access to records

In August 2016 Companies House announced that it was considering reducing the length of time that records of dissolved companies are retained from 20 years to six years.

This was particularly relevant to asbestos claimants because the asbestos exposure which caused a claimant’s injury is likely to have taken place decades ago and their employer may cease to exist or its liabilities may have been taken over by another company. If a successful claim is to be brought, it is crucial that company records from the time of exposure can be traced, which can be used to identify a potential defendant or insurer.

Therefore, the proposals to restrict the retention of records to six years would have impeded access to justice to many asbestos victims who were negligently exposed to the dust by their former employers decades ago.

However, in November 2016 the government confirmed that it was scrapping the plan to reduce the length of time that Companies House retains company records and that there will be no destruction of existing records unless there is an agreed change of policy.

This scenario raises the wider challenge for claimants’ lawyers of continuing to gain access to complete records regarding asbestos which is contained in buildings where people live and work. Claimants not only include people who worked consistently with asbestos over many years, but also employees who were exposed on as little as one occasion in buildings containing asbestos. As old formats of records are transferred to digital formats, it is important that this historic information is retained in order for victims of asbestos exposure to support their claim.

Further changes to legal costs?

In November 2016 it was announced that Lord Justice Jackson would lead a review of implementing fixed recoverable legal costs. The government had previously announced its intention to extend fixed recoverable costs, as opposed to assessing costs on a case-by-case basis, to all civil cases valued up to £250,000. The driver behind the change is to ensure that the amount of legal work done on a case is proportionate to the value of the claim and to prevent a losing party having to pay disproportionately high legal costs of the winning party.

The proposal for fixed costs follows previous recommendations by Jackson for changes to the cost regime for PI cases, which were implemented in April 2013. Among the many changes was the prevention of claimants who fund their case by way of a conditional fee agreement (no win, no fee) being able to recover the success fee and after the event (ATE) insurance premium from an unsuccessful defendant. Instead, the success fee is now payable by the winning party, which in PI cases is capped at 25% of their damages (excluding future pecuniary loss).   

However, in 2014 following a judicial review brought by the Asbestos Victims Support Group Forum, the High Court decided that the government had not conducted a proper review of the likely effect the reforms would have for mesothelioma claims and therefore had acted unlawfully. Mesothelioma claimants were exempted from the original reforms largely because they often only have months to live – they should not have to shop around to find the best deal in order to retain as much of their damages as possible. As a result of the case, mesothelioma claimants can continue to keep 100% of their damages, whereas other PI claimants may not. 

It remains to be seen whether mesothelioma claimants will retain this special status in the context of ongoing proposals to introduce fixed costs in PI claims. It is likely that any future proposals which may restrict access to justice for mesothelioma victims and their families will be met with fierce opposition and possibly further legal challenges.

Andrew Cooper is a second-year trainee solicitor at Leigh Day. His current seat is in the firm’s clinical negligence department.