Victims’ needs must come first

Claimant groups will need a lot of convincing about a new proposal for progressing mesothelioma cases

It was with a sense of dismay that I read of the dispute between asbestos charities, the Ministry of Justice (MoJ) and the Association of British Insurers (ABI) in relation to the MoJ’s proposed replacement of the existing Mesothelioma Fast Track system, devised by Master Whitaker and described by the Asbestos Victims Support Groups Forum UK as “the greatest single improvement to date in progressing living mesothelioma claims” with a Mesothelioma Pre-Action Protocol, incorporating proposals put forward by the ABI.

This has drawn the ire of asbestos victims’ groups, which are exercised that the interests of the insurance industry are being given precedence over the needs of sufferers and their families.

A key consideration, for different reasons, of both insurers and victims’ groups is the speed of resolution of claims and the payment of compensation. 

The time between diagnosis and death is mercilessly brief. Before and after death the financial burden on the deceased’s family can be considerable and a source of great anguish. 

Speed translates, in legal terms, into saved costs, so insurers’ proposals, even where they are intended to affect either or both a speedy resolution or the payment of claims, may be viewed with suspicion by claimants’ groups.

The ABI stood shoulder-to-shoulder with the claimants throughout the EL Trigger litigation against “rogue” insurers. The association issued statements in support of the claimants’ legal position as the case made its way up to the Supreme Court. This proved a source of comfort and strength to claimants and lawyers.

Giant insurer Zurich was on the same side as the claimants in the EL litigation. (Zurich’s action involved a dispute with Municipal Mutual
Insurance (MMI), from which it had bought MMI’s pre-1993 employers’ liability business.) Zurich’s financial muscle allowed claimants to challenge and dismantle previous orthodoxies with regard to the development and moment of appearance – the moment of legal “injury” – of mesothelioma cancers.

The bona fides of the ABI and Zurich should not, therefore, be in doubt. But inevitably there will be suspicion on the part of asbestos groups as to the motivation of the ABI.

Claimants, having collectively struggled so long and hard against insurers first to establish the legal liability of employers and thereafter to establish the liability of EL insurers to indemnify their tortfeasing insureds, are concerned the proposals, in which they have had faith, are being replaced by a system which may disadvantage them.

Since the speed/costs dichotomy lies at the heart of the impasse it will only be by comprehensive and persuasive explanation of how and why the proposals will not only save costs, but also be effective in addressing the needs of individual claimants and their families that a consensus can be reached as to the way forward.