BC DISEASE NEWS
A WEEKLY DISEASE UPDATE
3 November 2017 Edition 206
PAGE | 2
CONTENTS
PAGE 2
Welcome
PAGE 3
Court of Appeal Ruling on
Fundamental Dishonesty:
Howlett & anor v Davies &
anor [2017] EWCA Civ 1696
PAGE 4
Dermatitis and the Fixed Costs
Regime
PAGE 5
Insurance Industry Quizzed on
Prospective Discount Rate
Profits
Slater and Gordon Prepare
Shareholders for Restructure
PAGE 6
MoJ Sets LASPO Reform
Schedule
PAGE 7
Cold Calling Ban Revived?
Greater Amount of
Mesothelioma Patients Benefit
from Aggressive Surgery Than
Previously Realised
PAGE 8
Computer Programme Could
Predict If Immunotherapy Will
Work
PAGE 9
Feature:
Fatal Damages Series: Part 3:
PSLA
Welcome
Welcome to this week’s edition of BC Disease News.
This week we report on the recent Court of Appeal decision in which guidance
on ‘fundamental dishonesty’ was provided. Additionally, we discuss a dermatitis
claim, in which the claimant solicitor attempted to circumvent the fixed costs
regime in pursuit of inflated costs.
Elsewhere, Slater and Gordon (S&G) has announced that it is going ahead with
its restructure in order to avoid insolvency, as advised by KPMG and Huw Evans,
Director General of the Association of British Insurers has refused to speculate on
potential profits associated with a rise in the discount rate to between 0%-1%.
Finally, our feature this week continues our fatal damages series and looks at
general damages awards for, pain, suffering and loss of amenity in
mesothelioma claims.
Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen.
As always, warmest regards to all.
SUBJECTS
Court of Appeal Dishonesty Ruling – Dermatitis and Fixed Costs – Discount Rate
Update – Slater and Gordon Restructure – LASPO Reform Schedule – Cold Calling
Ban – New Surgery for Mesothelioma Patients – Immunotherapy Developments –
Fatal Damages Series: Part 3: PSLA.
PAGE | 3
Court of Appeal Ruling
on Fundamental
Dishonesty: Howlett &
anor v Davies & anor
[2017] EWCA Civ 1696
At Portsmouth County Court, Deputy District
Judge Taylor ruled that the claimants in a
personal injury case had been
‘fundamentally dishonest’ in bringing a
claim and granted an adverse costs order
in the defendant’s favour. The claimants
subsequently appealed to the Circuit
Judge, who also dismissed the claim. Since
then, one of the claimants appealed to the
Court of Appeal, and judgment has
recently been handed down in the case of
Howlett & anor v Davies & anor [2017]
EWCA Civ 1696, in which useful guidance
on ‘fundamental dishonesty’ has been
provided.
The claim related to a low-speed traffic
accident, caused by the 1st defendant
driver’s negligence, which was alleged to
have occurred in March of 2013. The
claimants alleged to have been
passengers in the car at the time of the
accident. The claim was resisted by Ageas,
the 1st defendant’s insurer, which said it ‘did
not accept the index accident occurred as
alleged, or at all’. Credibility of the
claimants was directly in issue and, whilst at
paragraph 2 of the 1st defendant’s
defence, Ageas stated that they ‘did not
assert a positive case of fraud at this stage’,
they did require the claimants to prove their
case. Paragraph 11 stated:
‘Should the court find any elements of fraud
to this claim, the Second Defendant will
seek to reduce any damages payable to
the Claimants to nil together with
appropriate costs order therein’.
At first instance, the ‘fundamental
dishonesty’ ruling amounted to an
exception to qualified one-way costs
shifting protection (QOCS), pursuant to CPR
44.16. As such, the defendant obtained
permission to enforce a costs order against the claimants:
However, on appeal, it was argued by the claimants that, since Ageas ‘did not assert a
positive case of fraud’ in their defence, nor cross-examine witnesses precisely on the basis
of ‘dishonesty’, they were ‘sitting on the fence’ and a finding of fundamental dishonesty
should not have been allowed.
After having been unsuccessful in the Swindon County Court appeal, on appeal to the
Court of Appeal, Lord Justice Newey considered the claimants’ argument that the Deputy
District Judge should not have found ‘fundamental dishonesty’ if it were not adverted by
the defendant insurer in its defence.
Newey LJ upheld the definition of ‘fundamental dishonesty’ as cited in the County Court
judgment of Gosling v Hailo (29 April 2014), wherein HHJ Moloney QC made the distinction
between two degrees of ‘dishonesty’:
‘... dishonesty in relation to the claim which is not fundamental so as to expose such a
claimant to costs liability, and dishonesty which is fundamental, so as to give rise to costs
liability.
‘... 'fundamental' would be a word with some such meaning as 'incidental' or 'collateral'.
Thus, a claimant should not be exposed to costs liability merely because he is shown to
have been dishonest as to some collateral matter or perhaps as to some minor, self-
contained head of damage. If, on the other hand, the dishonesty went to the root of either
the whole of his claim or a substantial part of his claim, then it appears to me that it would
be a fundamentally dishonest claim: a claim which depended as to a substantial or
important part of itself upon dishonesty’.
Discussing the importance of the content included in the pleadings, the judge stated, at
paragraph 31:
‘Statements of case are, of course, crucial to the identification of the issues between the
parties and what falls to be decided by the Court. However, the mere fact that the opposing
party has not alleged dishonesty in his pleadings will not necessarily bar a judge from
finding a witness to have been lying: in fact, judges must regularly characterise witnesses
as having been deliberately untruthful even where there has been no plea of fraud’.
Defendant counsel placed weight on the decision of Brooke LJ in Kearsley v Klarfeld [2005]
EWCA Civ 1510, who ruled:
‘So long as a defendant follows the rules set out in CPR 16.5 (as this defendant did in
[paragraphs 3 and 4 of the defence]) there is no need for a substantive plea of fraud or
fabrication...’
PAGE | 4
The material requirements for the content of a defence, under CPR 16.5 (above), contrast
with paragraph 8.2 of Practice Direction 16 (below) for the particulars of claim and hence,
the defendant sought to use the Kearsley decision as legal precedent.
The judge believed ‘the key question in such a case would be whether the claimant had
been given adequate warning of, and a proper opportunity’ to counter an allegation that
the alleged accident did not happen or that the claimant was not present, ‘rather than
whether the insurer had positively alleged fraud in its defence’.
At paragraph 33, Newey LJ opined that Ageas’ defence gave the claimants ‘sufficient
notice of the points that Ageas intended to raise at the trial and the possibility that the judge
would arrive at the conclusions he ultimately did. The Howletts cannot, in the circumstances,
fairly suggest that they were ambushed’.
Further, at paragraph 32, the judge referred to the comment of Judge Blair QC, at second
instance, to prove that an insurer does not need to have ‘alleged in its defence that the
claim was "fundamentally dishonest" for one-way costs shifting to be displaced on that
ground ...
‘“I observe that one does not have to plead a claim for an award of costs on the indemnity
basis (as opposed to the standard basis), so why would one have to expressly plead this
more remote stage of the costs determination exercise, namely for an order for the
enforcement of an adverse costs order?”’
Held, at paragraph 40:
‘I would dismiss the appeal. I agree with Judge Blair QC that the District Judge was entitled
to find that the claim was “fundamentally dishonest” and, hence, that CPR 44.16(1) applied.
The relevant points were, as it seems to me, adequately foreshadowed in Ageas’ defence
and sufficiently explored during the oral evidence’.
This case, therefore, authorises trial judges to establish ‘fundamental dishonesty’, even when
‘fundamental dishonesty’ is only implicitly mentioned in the pleadings, while insurers may
inhibit claimant QOCS protection, regardless of whether ‘fundamental dishonesty’ is raised
in defences.
The full judgment can be accessed here.
Dermatitis and the Fixed
Costs Regime
The Pre-Action Protocol for Low Value
Personal Injury (Employer's Liability and
Public Liability) Claims (MOJ Portal),
encompasses industrial disease claims
which have letters of claim post-dating 31
July 2013. In this article, we discuss the costs
consequences of a disease claim which
avoided the Portal, but was settled for 20%
of the damages threshold specified by the
Portal.1
As a result of daily exposure to chemical
compounds in beauty products, during the
course of her employment, the claimant, in
this case, developed dermatitis on her left
hand, in April of 2013, and subsequently
brought a claim against her employer.
Despite defendant solicitor queries, the
claimant solicitor decided against placing
the claim within the MOJ Portal, arguing
that the claim was too complex and that
the damages award would likely exceed
the £25,000 limit. In spite of this, the
claimant never offered any evidence in
support of a potential valuation over
£25,000 and damages were settled for
£5,000. In fact, the relevant general
damages bracket, specified by the
Judicial College Guidelines, identified a
value of £9,240. Thus, special damages
would have needed to surpass £15,000 to
fall outside of the Portal.
Following settlement, the claimant sought
costs on the standard basis, totalling
£18,910.80. The defendants contended
that since the disease claim did not relate
to mesothelioma, there was only one
defendant party and the cause of the
disease was cumulative, the claim should
have been placed within the Portal from the
outset and that pursuant to CPR 45.18 and
in accordance with CPR 45.25, the claim
should have been subject to fixed costs.
The bill was initially lodged for a provisional
assessment, however, provisional
assessments are not well suited to technical
arguments regarding which basis costs
PAGE | 5
should be assessed on. As the defendant
had not sought to challenge the suitability
of this process, the Deputy District Judge
proceeded and simply assessed costs on
the standard basis. Therefore costs were
provisionally assessed at £9,562.08.
On appeal of the preliminary issue, which
had been ‘glossed over’, the Deputy District
Judge agreed with the defendant that the
claimant was wrong to have exempted the
case from the Portal without any indication
that the claim would be valued in excess of
£25,000. Accordingly, an order for fixed
costs was made for £3,468.40. The only
disbursement fees granted were in respect
of the medical report, two sets of medical
notes, the addendum and a court fee of
£208.
This case is a specific example of claimant
solicitors attempting to circumvent the fixed
costs regime in pursuit of inflated costs.
Although the assessment of claims for Portal
suitability is fact specific, if all of the Portal
conditions are met, the defendant yields a
high chance of success in similar cases.
Hindsight is not a defence to justify
submitting a claim outside of the MOJ
Portal.
Insurance Industry
Quizzed on Prospective
Discount Rate Profits
On Wednesday, Huw Evans, Director
General of the Association of British Insurers
(ABI), was questioned by the Justice Select
Committee on the financial impact of the
new personal injury Discount Rate on the
insurance industry.2
Mr Evans refused to ‘cause market
dislocation’ by producing ‘guesswork’,
when asked by Labour MP, David Hanson,
if the ABI had projected future calculations,
based on the assumption that the Ogden
Rate will rise from (-)0.75% to between 0%
and 1%.
However, Mr Evans was able to present
independent consultant estimations, which
showed that, if the rate increased to 1%,
insurer savings for lower valued claims
could be worth up to £700 million.
Will the profits, stemming from the new rate,
be passed on to customers?
To this, Mr Evans stated that, in addition to
£1 billion in motor insurance premium
savings from LASPO reforms:
‘We’ve said there’ll be some savings if these
reforms are put through, but the point is not
to have massive savings to customers, but
a healthier system that prevents much
bigger increases if the system stays
unreformed’.
Spokesperson for the Government on
Justice, Lord Keen QC, has admitted that
he would be ‘very surprised’ if the new
formula for calculating the discount rate
resulted in the majority of victims being
under-compensated. Further, he said:
‘I expect some will be under-compensated
and many will be over-compensated. This
is not about reducing the cost of clinical
negligence claims, but about fair and
reasonable compensation for the victims of
negligence’.
Tackling the reality of the situation that
compensation will benefit victims to varying
degrees, David Johnson, the former
President of the Forum of Insurance Lawyers
(FOIL), assured the committee that the
insurance industry does not envision
discount rate change as a choice between
helping vulnerable people or ‘abandoning’
them. He went on to say:
‘Everyone is in agreement that we’re
targeting 100% compensation. We want to
combine the best of the old and the new,
but it must be based on a modern formula
... The rate is not right. It appears to be over-
compensating people and there is no
evidence of it under-compensating them’.
The consultation on how the discount rate
should be set in future has proposed the
introduction of a panel of experts, chaired
by the independent Government actuary.
They would be responsible for
recommending future amendments to the
Ogden rate. However, there has been
disagreement over the level of authority the
experts would have over the Lord
Chancellor.
President of the Association of Personal
Injury Lawyers (APIL), Brett Dixon, argues that
the Lord Chancellor should accept the
advice of the expert panel to take the
decision out of the hands of politicians and
‘would welcome some mechanism to
promote change’. In contrast, Lord Keen
QC contended that:
‘The Lord Chancellor can’t ignore the
advice of the panel and must take account
of it, but it is advice. He must make a
political decision’.
Slater and Gordon
Prepare Shareholders
for Restructure
Slater and Gordon is currently in a position
where ‘unsustainable’ debt levels outweigh
the value of the business and the share
price is ‘almost worthless’. We have
discussed, in past editions of BC Disease
News, the proposed recapitalisation plan
and it seems that this has now come to
fruition. This week, additional to the
publication of its annual report (here), the
firm has warned its shareholders that the
alternative to ‘holistic restructure’ would be
insolvency. Although 95% of the ownership
in the business will be transferred over to its
12 senior lenders, in a letter sent by S&G
Chairman, John Skippen, he stated that:
‘The recapitalisation is required for S&G to
avoid insolvency. It is intended to S&G with
a sustainable level of senior secured debt
and a stable platform for future
operations’.3
Mr Skippen has apologised for ‘share
dilution’ and will resign with other members
of the board as and when restructuring
occurs.
Indeed, according to an independent
expert report, produced by KPMG, Slater
and Gordon, but for the restructure, would
PAGE | 6
enter into administration in May of 2018, when ‘amounts due under the syndicated facility agreement’ are payable. On 30 June 2017,
the debt was measured at £450 million, half of which funded the acquisition of Quindell’s professional services division.
The latest annual report has shown a 17% decline in revenue for the past year, as a consequence of the reduction in size of the business.
Moreover, in 2016/17, 60% of fees and services, brought in through the reorganised UK arm, were personal injury law related. Part of the
debt for equity plan takes 100% of shareholder ownership away from S&G UK, which owes £380 million. S&G UK would then benefit from
a ‘perpetual royalty-free licence to use the brand in the UK, Ireland and the rest of Europe’. However, ‘Shareholders will retain the
opportunity to participate in future value creation and recovery as Slater & Gordon pursues its strategic plan in Australia’ and the Australian
operation will be ‘released from its obligations to pay all amounts drawn by, and secured debt of, S&G UK’.
In edition 191 (here), we reported that Andrew Grech, the former Group Managing Director, had been removed from his position, as part
of the solvent restructure. Despite significant financial troubles and predictions that 7% of jobs will be lost across Australia, when the
transitionary measure, keeping Mr Grech on the board, comes to an end, he will walk away with at least £162,000. Although Mr Grech
‘received no short-term bonus payments for this year and forfeited performance-related rights previously granted under a long-term
incentive plan’, he is ‘entitled to receive three months’ salary in lieu of notice, 13 weeks’ salary as a termination payment, and any untaken
annual leave and long service leave accrued’ upon departure’.4
In other S&G affiliated news, the business has also reached a conditional agreement to appease former and existing shareholders, who
have brought two legal actions against the firm to date. The terms specify that ‘the benefit of all relevant insurance policies held by S&G
[would be] shared “rateably” amongst all the claimants’. The scheme will be put to creditors for approval this month. Then, at the Annual
General Meeting, on 6 December, there will be a vote for shareholder approval. If approval is granted, a Court hearing, on 14 December,
will decide whether or not to endorse the scheme.
MoJ Sets LASPO Reform Schedule
This week, the Ministry of Justice published a post-legislative memorandum for the Legal Aid, Sentencing and Punishment of Offenders Act
(LASPO) 2012. What is more, a commitment has been made to produce a post-implementation review of the civil litigation funding and
costs reforms, located in Part 2 of the Act.5
Post-legislative memoranda, since 2012, are published to assess whether Acts of Parliament have met their key objectives within three to
five years of the Acts entering the statue book.
LASPO is renowned for having abolished the recoverability of success fees and ATE premiums, which was counteracted by the introduction
of qualified one-way costs shifting (QOCS). Until now, under s.48, mesothelioma claims have been exempted from the recoverability
reforms. Section 48 states:
Although, the 10% uplift column remains in the Judicial College Guidelines for the award of general damages. Considering that the case
of Simmons v Castle [2012] EWCA Civ 1288 confirmed that the 10% uplift only applies in cases where a success fee is no longer recoverable
– it could be said that the removal of the exemption has been expected for some time.
Indeed, the memorandum has clarified that s.48 will be encompassed within the post-implementation review, which will be undertaken
towards April 2018.
Reform was attempted in 2013, following a consultation exercise in December of 2012. This was unsuccessful, however, as the Justice
Select Committee demanded the then Lord Chancellor, Chris Grayling, to devise a second review of the impact of mesothelioma on
victims. Accordingly, the High Court ruling, in October of 2014, on the case of R (on the application of Whitston) v the Secretary of State
for Justice [2014] EWHC 3044 (Admin), held that the Government had failed to comply with s.48.6
PAGE | 7
The current Lord Chancellor, David
Lidington has recently confirmed that
Parliament’s 2018 summer recess will mark
the end of the scheduled timetable for
completion of the review of LASPO Part 2. In
any event, the Government has stated that:
‘There has not been any body of opinion
calling for an early review, or for the
amendment of the statutory provisions in
part 2. That may be because the provisions
are seen to be working reasonably
effectively, or because it is still too early to
tell their full impact given the length of civil
litigation ... Whilst there has inevitably been
comment on points of detail, we are not
aware of significant overarching concerns
arising from the implementation of part 2’.
We will continue to report on any
developments in due course.
Cold Calling Ban
Revived?
We have previously discussed the progress
of the Financial Guidance and Claims Bill,
in edition 202 (here), when the Government
rejected proposals from the House of Lords
to introduce a ban on cold calling. The Bill,
responsible for implementing reforms,
under which Claims Management
Company (CMC) regulation will transfer
from the Claims Management Regulation
Unit (CMRU) to the FCA, entered the report
stage in the House of Lords last week. It has
emerged, from this meeting, that the
Government has reversed its initial position
on cold calling.7
Conservative Minister at the Department for
Work and Pensions (DWP), Baroness
Buscombe, shared the new views of the
Government with peers in this most recent
stage of the Bill.
On this occasion, the DWP Under-Secretary
stated:
‘We know that cold calls continue and
understand that more needs to be done
truly to eradicate this problem. We have
already committed to ban cold calls
relating to pensions, and are minded to
bring forward similar action in relation to the
claims management industry. I have asked
officials to consider the evidence for
implementing a cold-calling ban in relation
to claims management activities, and I am
pleased to say that the government are
working through the detail of a ban on cold
calling by claims management
companies’.8
Liberal Democrat, Lord Sharkey, proposed
an amendment (‘Amendment 2’) to the Bill
in favour of empowering the new financial
guidance body ‘to publish an annual
assessment of consumer detriment as a
result of cold calling; to require the body to
advise the Secretary of State to institute
bans on cold calling if it thinks that would
be conducive to its functions; and to give
the Secretary of State the power to
introduce a ban on cold calling, if
recommended by the guidance body’. It
was implied that this amendment would
include personal injury CMCs. Put to test in
the Lords, the amendment was passed by
a majority of 253 votes to 205.
Another amendment (‘Amendment 42’),
debated this week, obliged the Financial
Conduct Authority to bring in a ban on
‘unsolicited real-time direct approaches
by, on behalf of, or for the benefit of
companies carrying out claims
management services and a ban on the
use by claims management companies of
data obtained by such methods’. If
accepted, it was predicted that this would
save time in the Commons.
Baroness Altmann pledged her support for
the amendment, as it could ‘... prevent the
cold calls rather than trying to catch cold
callers afterwards, once they have already
plagued the public’. However, she went on
to admit that this:
‘... would not stop claims management
companies advertising broadly to offer
claims management services, but it would
help to stop the speculative nuisance calls,
texts or emails which are plaguing millions
of British people so frequently’.
Responding to the comments of the Lords,
Baroness Buscombe stated:
‘Unfortunately, the amendment tabled by
noble Lords would give the FCA a duty it
cannot enforce under its current regime. I
assure noble Lords that the Government are
committed to tackling this issue properly
and will consult with the FCA, the CMRU and
the ICO to ensure that the government
amendment addresses these issues in the
most effective way. But if Amendment 42
were accepted, it would not achieve its
aim. For these reasons, I urge the noble
Lord to withdraw the amendment’.
Amendment 42 was subsequently
withdrawn.
We will report on 3rd
reading of the Bill in
due course.
Greater Amount of
Mesothelioma Patients
Benefit from Aggressive
Surgery Than Previously
Realised
A recent study found that patients
diagnosed with the worst cases of
mesothelioma may benefit from aggressive
surgery, despite such patients often not
being considered suitable candidates for
the procedure.9
The participants in the study were 114
patients who underwent pleurectomy and
decortication surgery in Chicago between
2008 and 2015. The procedure involves
stripping the pleura from the chest wall and
removing the thickened pleural membrane
from the lung, leaving the lung in place.
The pericardium (the membrane around
the heart) and diaphragm are often
removed, depending on the extent of the
tumour.10
The lung remains in place, and
its function may be improved after surgery
because it can expand more easily. Thus,
the quality of life of the patient may
improve. In the USA, fewer than one third of
pleural mesothelioma patients undergo
aggressive surgery.11
In the UK, not all
thoracic surgeons have experience of this
technique, and most will usually prefer to
PAGE | 8
operate after a few cycles of
chemotherapy have been given.12
The health of the patients was assessed
prior to surgery, and at 1, 4-5, 7-8 and 10-
11 months after surgery. The patients who
were the most symptomatic before surgery
were those with largest tumour volume and
non-epithelioid histology (the nature of the
cells affected). These patients showed
greater increases in quality of life after
surgery than the patients who were
healthier before surgery. However, they
had a shorter survival time after surgery that
the patients who were less ill prior to surgery.
Patients who are more symptomatic are
usually not recommended for aggressive
surgery, because of the mortality and
morbidity risks and concerns for quality of
life afterwards. The lead author of the
study, Dr Wickii Vigneswaran, said, “The
quality of life was much improved [for those
with higher tumour volume], even when the
quantity of life was not”, and, “Patients who
may be excluded by many from surgery
because of limited improvement in survival,
can benefit greatly in their quality of life
following P/D surgery”.13
Though it does not improve the length of
life, this study suggests that aggressive
surgery may improve the quality of life for
patients who are likely to be considered too
ill to undergo surgery, and that the surgical
treatment for such patients could be
justified.
This study was undertaken in the USA. A
clinical trial to investigate the effectiveness
of this type of surgery for mesothelioma
patients, known as the MARS 2 trial, is
currently underway in the UK.14
Computer Programme
Could Predict If
Immunotherapy Will
Work
In previous issues of BCDN (issues 167, 176),
we have reported on the current use and
potential future use of a technique known
as immunotherapy for treatment of lung
cancer and mesothelioma. At this stage,
the treatment is very expensive, and
appears to only work in certain patients.
The technique involves ‘switching on’ the
body’s immune cells so that they can
attack cancer cells, and leave healthy
cells intact. Cancer cells trick the immune
system into thinking that they are harmless,
so the immune cells do not attack them.
The type of immunotherapy that may be
helpful for mesothelioma interrupts the
‘communication’ between cancer cells
and immune cells, in which the immune
cells are instructed not to act. Reports of
the results from clinical trials of these
medications often include a note that some
patients may benefit more than others,
depending on whether and how much of
particular proteins are found in the tumour
cells. Some trials currently underway will
include investigation of which patients
would be most likely to benefit from such
treatments.
A small, unpublished study has suggested
that combining information from different
cancer scans could offer a way to predict
if immunotherapy will work. The researchers
said that a computer programme offers a
possible way of gauging the likelihood of
successful treatment without the need for
biopsy15
. They presented their findings at
an American Association for Cancer
Research conference held last week in
Philadelphia16
. This approach is known as
radiomics, and is an emerging field in
medicine in which large amounts of
information are taken from medical
images, such as magnetic resonance
imagining (MRI) and computerized
tomography (CT) scans, by a computer.
The computer is able to detect information
from the scans that doctors cannot see.
The researchers used a catalogue of tumor
images from patients with head and neck,
liver, lung and bladder cancers to identify
80 features that may indicate the
abundance of the relevant immune cells
inside the tumour. They developed a
scoring system for assessing a tumour, and
applied it to CT scans of 137 patients
enrolled in a clinical trial for
immunotherapy drugs. It was found that
patients with a higher score (in the top half
of scores) were 1.5 times more likely to be
alive (i.e. to benefit from the treatment)
than patients with scores in the lower half.
Dr Roger Sun, who lead the research, said
that this new way of monitoring patients is
noninvasive, cost-effective and can be
used throughout the course of disease.
Furthermore, an advantage of this method
over use of biopsies is that the properties of
a cancer can vary in different parts of the
tumour, and a biopsy gives information only
about the specific cells taken, whereas this
technique allows data about the whole
tumour to be collected17
.
Professor Martin Glennie, an
immunotherapy expert from the University
of Southampton, funded by Cancer
Research UK, said, ‘One of the most difficult
and frustrating problems with
immunotherapy treatments, including anti-
PD-1 drugs, is knowing which patients will
respond and which patients will not’. He
said that this work was interesting because
it potentially provides a means of selecting
the minority of patients who are most likely
to benefit from immunotherapy18
.
Limitations of this study are its small size, and
that the medical images were taken from
different centres with different imaging
protocols19
.
If reliable, cheap techniques are
developed that can predict which patients
may or may not benefit from
immunotherapy treatments, they may be
useful in determining which mesothelioma
claimants may claim for expensive
immunotherapy treatment, and which may
not.
PAGE | 9
Feature:
Fatal Damages Series: Part 3: PSLA
This week we continue our series of features on the assessment of damages in mesothelioma claims. Part 1 of this series considered the
case of Grant as an example of how the judiciary approach the assessment of quantum in mesothelioma claims and in Part 2 we looked
at the distinction between a fatal claim and a ‘lost years’ claim.
We now turn our attention to claims under the Law Reform (Miscellaneous Provisions Act) 1934, and begin by looking at the head of loss
for pain, suffering and loss of amenity (PSLA), and the approach to its assessment.
MESOTHELIOMA – TYPES, SYMPTOMS AND TREATMENT
Before we go on to consider awards for PSLA in mesothelioma claims, it is useful to first consider the different types of mesothelioma, the
typical symptoms and the nature of the treatment claimants will usually endure.
Pleural Mesothelioma
This is the most common type of mesothelioma, making up 80-90% of all mesothelioma cases.20
Pleural mesothelioma is characterised by
tumours which form in the pleura, a thin layer of tissue that protect and cushion the lungs and chest wall.
Below is an image showing parts of the lung that are affected in the presence of pleural mesothelioma:
Image Source: Mesothelioma.com
Symptoms of pleural mesothelioma include:21
- Chest pain
- Shortness of breath
- Fatigue
- Sweating and high temperatures
- Persistent cough
- Unexplained weight loss
PAGE | 10
- Loss of appetite
- Hoarse or husky voice
- Difficulty swallowing
The type of treatment recommended will depend upon, where the cancer is, how advanced it is and the general health and fitness of
the individual. Mesothelioma, is usually very difficult to treat, partly due to the fact that it isn’t usually discovered until the late stages of the
disease. As such, the main treatments are designed to manage the symptoms of mesothelioma for as long as possible rather than to cure
it.
Treatments can include, surgery (although this is generally reserved for those with early stage mesothelioma), chemotherapy or
radiotherapy or a combination of both. Those with more advanced mesothelioma may only have chemotherapy to shrink the tumours
and reduce symptoms.
Peritoneal Mesothelioma
Peritoneal mesothelioma is found in the peritoneum, which is a thin membrane surrounding the abdomen. It is generally accepted as
being the more painful type of mesothelioma and is reported as such by medical experts instructed in mesothelioma claims. The visceral
layer of the peritoneum protects organs like the liver and gall bladder whilst the parietal layer covers the outside of the abdomen. This is
the second most common form of asbestos with fewer than 500 people being diagnosed each year.22
Below is an image showing which organs are affected in the presence of peritoneal mesothelioma:
Image Source: Mesothelioma.com
Symptoms of this type of mesothelioma include:
- Pain in the abdomen
- Swelling in the abdomen
- Feeling or being sick
PAGE | 11
- Poor appetite
- Losing weight unintentionally
- Diarrhoea or constipation
If peritoneal mesothelioma is caught early then surgery may be an option to try to remove all of the tumour from the abdominal cavity.
Where the disease is more progressed, a procedure called ‘debulking’ can be carried out in which as much of the tumour is taken away
as possible. Chemotherapy is also an option for more advanced abdominal mesothelioma.
For those that are too ill at the time of diagnosis to have treatment, palliative care is an option. This kind of care is used to control an
individual’s symptoms and can include draining fluid from the abdomen. With peritoneal mesothelioma, fluid can collect inside the
abdomen and if too much fluid collects it can make the abdomen swell, causing discomfort and heaviness.
Unfortunately, chemotherapy and radiotherapy rarely work well for mesothelioma and have quite severe side effects. We discussed a
recent development in the treatment of mesothelioma in edition 176 of BC Disease News in which we discussed the immunotherapy drug,
Keytruda.
Now we have provided an overview of the two most common types of mesothelioma, we can ask ourselves; what are the factors which
will determine PSLA awards in mesothelioma claims?
PSLA awards take into consideration the following elements of a deceased’s disease:
- Pain and suffering
- Duration of symptoms
- Age and any reduction in life expectancy
- Loss of amenity
- Loss of expectation of life and concerns for family
We will look at each of these in turn, however, as these factors will all be considered within the framework of the JC Guidelines we will
discuss these first.
APPLICATION OF THE JC GUIDELINES
The Guidelines for the Assessment of General Damages in Personal Injury Cases, published by the Judicial College, provide guideline
bracket figures for awards made for PSLA. Mesothelioma has its own guideline bracket, owing to its unique features and the current (14th)
edition of the Guidelines provide the following:
PAGE | 12
The text within this chapter confirms that awards for PSLA in mesothelioma claims will be affected by the duration of symptoms and the
nature of the pain and suffering experienced, age of the claimant, their previous state of health, as well as the extent and effects of radical
surgery and other treatments.
Interestingly, this Chapter also deems it relevant whether the claimant had peritoneal or pleural mesothelioma and whether or not the
tumours had spread and to what extent. This is undoubtedly because, as mentioned above, peritoneal mesothelioma is accepted as
being more painful than pleural.
Although this narrative is helpful, the Guidelines are only guidance, they are not law. They can be departed from if the circumstances of
the case so require. This is made clear in the foreword of the first edition where Lord Donaldson of Lymington wrote:
‘It was not intended to represent, and does not represent, a new or different approach to the problem. Nor is it
intended to be a ‘ready reckoner’ or in any way to fetter the individual judgment which must be brought to bear upon
the unique features of each particular case. What it is intended to do, and what it does quite admirably, is to distil the
conventional wisdom contained in the reported cases, to supplement it from the collective experience of the working
part and to present the result in a convenient, logical and coherent form’.23
In Cameron v Vinters Defence Systems Ltd [2007] EWHC 2267 (QB), Holland J noted, at para 7, that the starting point is the Guidelines, but
that they can be departed from with justification. The circumstances of the case must, therefore, be regarded as the ultimate determinative
factor in any award of damages. This approach has been followed in several subsequent decisions.
It was most recently clarified in Ball v Secretary of State for Energy and Climate Change [2012] EWHC 145 (QB), where it was stated that
the emphasis should not be placed purely on the duration of symptoms but rather an assessment of damages was more complex and
required consideration of other factors such as:
- Extent and effects of any invasive investigations;
- Level of symptoms; and
- Domestic circumstances, level of activity and previous state of health. Contrast a young fit man and his loss of amenity with the
knowledge of significantly premature death with an older claimant who may have far less restriction of activities as a result of the
illness.
Although the judge did also say:
‘The list of factors to which I have referred is not of course intended to be exhaustive. I merely wish to illustrate the point
that the assessment of damages in mesothelioma cases is far more complex than the emphasis in the JSB Guidelines
on “duration of symptoms” would suggest’.
In Dunn v National Grid Plc (13th January 2010, Walsall County Court), HHJ Gregory, departing from the (then termed) JSB Guidelines, stated:
‘I remind myself that the guidelines are just that – guidelines – and no more than that, for the assistance of courts. I
recognise the strength of the submissions made by Miss Adams in relation to the purposes of the JSB Guidelines. The
fact of the matter is that, in my judgment, they are, broadly speaking, as now drafted, generally out of step with the
approach that courts have taken and, bearing in mind the extent to which that sort of award - £25,000 – differs from
the type of award contemplated by Master Whittaker, they are, it seems to me, significantly out of step. I have come
to the conclusion that if such a radical departure from the general level of awards which the courts make in this type
of case, which it seems to me are to a certain extent ‘sui generis’ is to be taken, it ought to come from the Court of
Appeal and not the JSB’.
Where quantum is not agreed, judges are also asked to take into account ‘comparable cases’. These will often be quantum cases taken
from Kemp and Kemp on Quantum of Damages, with similar factual scenarios to that of the deceased in the present case and the judge
will be asked to award a similar figure.
It should be noted that whilst the courts can, and do, look at comparable cases they should not form a doctrine of precedent in fixing the
quantum of damages. Instead the cases will be used as a general guide, much like the Guidelines themselves. This principle was outlined
in the Court of Appeal decision of Waldon v War Office [1956] 1All ER 108, in which it was said:
PAGE | 13
‘…I do not think that a judge is bound to consider such cases. If counsel on one side or the other tenders such
material, it is for the judge to say whether, in his discretion, he thinks it will be of help to him or not…A judge in assessing
damages draws on his own experience, which he acquired from knowledge of other judges’ decisions as to amount,
from knowledge of what is said in this court and in the House of Lords, and from his ordinary experience of life’.
So how have the courts interpreted and applied the JC Guidelines when making awards for PSLA in mesothelioma cases?
Let us now turn to look at some of the relevant factors, in turn.
PAIN & SUFFERING AND DURATION OF SYMPTOMS
Quantification of the award for pain and suffering, suffered as a result of the deceased’s injury will depend somewhat (but not entirely as
we have shown) on the duration that symptoms were suffered. For example, mesothelioma is known to be a short lived but extremely
painful disease lasting from diagnosis to death, usually less than 1 year but in some cases up to 3 years.24
The longer and more painful a
disease/injury, the higher awards for PSLA tend to be.
An example of this was given in the decision discussed last week in Grant (Widow & Executrix of the Estate of Douglas Michael Grant,
Deceased) v Secretary of State for Transport [2017] EWHC 1663 (QB). In this case the deceased had suffered with mesothelioma for 40
months (3 years and 3 months) from onset of symptoms until death. It was noted that this was quite unusual for this disease. Further, the
claimant had outlined the symptoms suffered which were particularly painful including, pain in the deceased’s chest which became more
severe as time went on, breathlessness, vomiting, hallucinations, ringing in the ears and swollen feet. The deceased also underwent several
treatments including, an aspiration of the lung and two courses of intravenous chemotherapy. The award for PSLA in this case was £92,500.
The judge, Martin Chamberlain Q.C. said there were five factors that had stood out in this claim which warranted such an award:
1. The duration of the deceased’s symptoms was unusually long.
2. There had been three courses of chemotherapy with extremely unpleasant side-effects.
3. Although he was able to work to some extent, he did suffer symptoms such as breathlessness, intermittent pain and night sweats.
4. The last months of the deceased’s life had been spent in severe and extreme pain which could not be adequately controlled by
medication.
5. The deceased had expressed concerns regarding the financial provisions for his wife after his death and this would have caused
him a significant source of concern.
However, in the case of Mosson v Spousal (London) Ltd [2015] EWHC 53 (QB), the deceased had also suffered an unusually long period of
symptoms. As such, the claimant submitted that the appropriate award of PSLA was the upper bracket of £95,000 due to the exceptionally
long duration of suffering and the gross impairment of function and quality of life the deceased had experienced. During his treatment,
the deceased underwent repeated pleural drainage, repeated investigation, six cycles of chemotherapy, radiotherapy and surgical
removal of parts of his pleura. However, Mr Justice Garnham noted that the disease had affected the pleura and not the peritoneum and
as it is the peritoneum which causes the most severe pain he concluded at para 46:
‘In my judgment although this case falls in the upper half of the appropriate category, it is not at the very top. As
dreadful as his pain and discomfort must have been, it was not as severe as it would have been had the disease
involved the peritoneum and it is plain on the evidence that he still had some amenity and some quality of life well
into 2013’.
The judge awarded the claimant £85,000 for PSLA.
Another case in which the symptoms were of a particularly long duration is the most recent quantum decision in Jones v Robert McBride
Homecare Ltd (2017), Unreported, in which a female, aged 70 at the date of the hearing was diagnosed with mesothelioma in 2011 and
had suffered symptoms for the unusually long period of 6 years. Her life expectancy had been reduced by 18 years. The treatment she
underwent was particularly invasive, including, a chest drainage of fluid, five courses of chemotherapy and subsequently drug trials which
required regular attendance at hospital and included side effects such as nausea and tiredness. The award for pain, suffering and loss of
amenity was made at the top end of the JC Guidelines with an award of £100,000. This is greater than the amount seen in the case above
of Grant which we previously reported in BCDN was the highest recorded PSLA award for mesothelioma. Note: whilst the graph below shows
some anomalous awards of over £100,000, the graph includes awards uplifted for inflation and so the original award would have been
less than £92,500.
PAGE | 14
Difficulties arise where the deceased’s suffering was intense but short. An example of this is in the decision of Dunn v National Grid Gas Plc
(Walsall County Court, January 2010), in which there was a period of only 6 weeks between the onset of symptoms and death. In this case
the defendant submitted that the Guidelines (9th Edition) should be followed, which at the time had added to them an additional paragraph
which read : ‘In cases of unusually short periods of pain and suffering lasting three months or so, an award in the region of £25,000 may
be appropriate’.
The judge in this case rejected this argument and held that the Guidelines were no more than guidelines for the assistance of courts and
were out of step with the approach that courts had taken to these types of claims. He concluded that:
‘…but the fact is in my judgment, that this case, albeit that the symptoms were six weeks, is, nevertheless, a case
involving a death caused by all the horrors of mesothelioma; perhaps not the peritoneal condition but, nevertheless,
all the general horrors. Doing the best that I can, and accepting Miss Adams’ submission that this is a late diagnosis
of a man living by himself, without the horrors of leaving a family uncared for, the assessment of general damages
that I make is £45,000’.
This award today would equal, £55,614, still the lower end of the current JC Guidelines bracket for mesothelioma. However, the current
edition of the Guidelines no longer has the paragraph relating to mesothelioma claims where the symptoms are short lived. Therefore, this
case not only shows that duration of symptoms is not always the primary consideration when the symptoms of the injury are particularly
severe but also highlights the point made above, that the courts will depart from the guidelines where it is necessary.
The graph below shows the average sums awarded in mesothelioma claims (updated for inflation up to May 2017), taken from the available
quantum reports, and plotted against the deceased’s duration of symptoms:
PAGE | 15
Whilst there is a general upward trend as the duration of symptoms get longer, the individual markers show quite a few anomalies. This
reiterates the point made above, that the duration of symptoms, whilst a main factor to take into account, is not a steadfast determinate
of the value of the award for PSLA.
A ready reckoner of these quantum cases can be found in our mesothelioma PSLA guide here.
AGE AND LIFE EXPECTANCY
In Hobbs v DGP Windsor [2012] EWHC 2544 (QB), the claimant, an 86 year old man developed mesothelioma from exposure to asbestos
during his employment which reduced his life expectancy by approximately five years. HHJ Reid Q.C. considered the circumstances of
the claimant, including the symptoms suffered, and concluded that the claimant had had far less intrusive treatment than is often seen in
mesothelioma cases. The ‘standout feature’ of this case was the claimant’s age.
In coming to a conclusion on the amount of damages to be awarded, the judge made reference to two decisions concerning elderly
claimants. Firstly, Ball v Secretary of State for Energy and Climate Change, in which the claimant was aged 92 and was awarded £50,000
for PSLA. Similarly in Najib, the claimant was 71 and at the time of trial the life expectancy was a further seven months (although he had
suffered with the symptoms of mesothelioma for two years and had undergone particularly invasive treatment) and was awarded £80,000
for PSLA.
HHJ Reid, in considering an award for loss of life expectancy, carried out a balancing act, by comparing not only the age of the claimants
but also the duration and severity of symptoms suffered and the extent of the treatment.
A similar approach was taken by Mr Justice Bean in Knauer v Ministry of Justice [2014] EWHC 2553 (QB), in which the deceased developed
mesothelioma and died aged 46, having being diagnosed just 6 months previously. Here the deceased, whilst relatively young and
therefore having a larger deduction in life expectancy, had not suffered for a prolonged period of time. As such, the judge considered
the judgments of Zambarda v Shipbreaking (Queenborough) Ltd [2013] EWHC 2263 (QB), in which £77,500 (£86,738 in today’s money) was
awarded for PSLA to a male victim of mesothelioma who had suffered for slightly longer than the deceased in Knauer and Streets v Esso
Petroleum Co Ltd, where the victim died at the age of 60 and the award was £65,000 (£82,784 in today’s money). Bean J concluded that
an award of £80,000 (£87,125 in today’s money) was suitable.
This approach highlights the fluid nature of assessments for damage for PSLA. Whilst these factors which we have identified will all be
considered where they are relevant, they are not considered in isolation of one another.
LOSS OF EXPECTATION OF LIFE
In fatal claims, damages are confined to the period between the accident and the death, however damages may be aggravated by the
fact that the deceased was aware of the fact he was dying.
Prior to 1982 the fact that a claimant had a loss of expectation of life was a separate and distinct head of damages. However, this was
abolished by the Administration of Justice Act 1982 s.1(1)(a) which states:
‘the court, in assessing damages in respect of pain and suffering caused by the injuries, shall take account of any
suffering caused or likely to be caused to him by awareness that his expectation of life has been so reduced’.
As such, this previous head of loss has now been included within PSLA.
This was first applied in Najib v John Laing Plc [2011] EWHC 1016 (QB) where Mrs Justice Davies observed that: ‘The claimant’s awareness
that his life expectancy has been reduced is a relevant factor in the assessment of damages’.
More recently in Kadir v Mistry & Ors [2014] EWCA Civ, the estate of a mother who had died of cancer as a result of the admitted negligence
of the defendants to diagnose in time for successful treatment, claimed for the mental suffering resulting from her awareness for the last
three months of her life that her life expectation had been reduced. The Court of Appeal agreed with the trial judge that, as an earlier
diagnosis would have meant the deceased suffered the same symptoms as she did and would still have had to endure intensive and
gruelling treatments, as such there could be no award for pain, suffering and loss of amenity. However, they overturned the trial judge’s
PAGE | 16
decision in relation to the claim under the Administration of Justice Act 1982, and awarded the claimant £3,500 for the deceased’s
knowledge that she was going to die.
Lord Justice Laws held at para 61:
‘I do not for my part consider that awareness here necessarily means strictly certain knowledge. The provision is
dealing with a state of affairs arising where the claimant or deceased has good objective reason to fear that his
expectation of life has been reduced. As a matter of ordinary humanity, it seems to me plain that if some good
objective reason to fear is shown, then a subjective fear and the anguish that surely follows it will ordinarily be liable
to be inferred’.
LOSS OF AMENITY
The final aspect of claims for PSLA that will discuss are for ‘loss of amenity’ – these claims are for the inability to partake in usual activities
of enjoyment such as sporting activities or walking pets. The authority for this is Phipps v Brooks [1996] PIQR Q100.
Unlike claims for pain and suffering, there does not need to be a subjective awareness of the deprivation and so a claimant that is
permanently unconscious can recover in full under this head for his loss of amenities. Although, a subjective element will be considered,
for example, certain amenities, such as walking pets and playing sports, may impact some claimants more than others and this should be
reflected in the overall award.25
Where the deceased’s ability to care for a loved one leading up to his/her death is reduced due to the illness/injury, this will also be
considered within the award for PSLA as a loss of amenity.
This kind of award can be distinguished from an award made to a dependent under the FAA for loss of services of the deceased. In this
instance, the estate would bring a claim on behalf of the deceased for the deceased’s loss of ability to care for his dependent.
This kind of award was made in the case of Lowe v Guise [2002] EWCA Civ 197, in which the claimant was injured in a road traffic accident
which left him with debilitating injuries. Prior to the accident, the claimant provided gratuitous care services for his brother estimated at 77
hours per week. After the accident, he was limited by his injuries to providing only 35 hours per week. The difference between the hours of
care were provided by the claimant’s mother. On this basis the claimant contended that the services which he had provided to his brother:
‘…benefited the Lowe household as a whole. They relieved the claimant’s mother of the need to render them herself;
they benefited Gary Lowe personally; and they also discharged a moral obligation resting upon the claimant himself.
The services should accordingly be categorised as discharging the obligations and needs of the family as a whole’.
He went further and said that if the law will compensate a claimant for the cost of the work he can no longer perform in looking after his,
or his family’s, car or home or garden, then it must be able to compensate him for the work he can no longer do in looking after other
members of his own family.
As such, the value of 42 hours per week carer services was claimed to be held by the appellant on trust for his mother.
The defendant argued that this kind of loss was too remote to be compensable and that the claimant’s moral obligation was only to do
what he could. In doing that, he suffered no loss as he would still earn the maximum carer’s allowance for the reduced amount of hours
he was caring for his brother.
The judge at first instance dismissed this claim. The claimant appealed and the Court of Appeal then reviewed the jurisprudential
foundation relating to claims for loss of care services as a loss to the claimant/deceased.
Lord Justice Rix held at para 27:
‘So it seems to me that the injured claimant’s loss of the ability to contribute his or her service to the needs of the family
is a real loss suffered by the claimant, or transferred by the claimant by reason of his or her injuries on to another
member of the family household who is in turn obliged to contribute his or her service’.
PAGE | 17
He went on at para 38 to conclude:
‘The present case, however, is one where, as must at present be assumed to be correct, the disabled brother is part
of the household and one whose care had, prior to the accident, been the appellant’s prime responsibility. That care
was not a mere gratuitous favour bestowed on a third party, but was a responsibility of his own, adopted by him and
owed to his brother, but also to his mother with whom he shared the household. When he lost the ability to care for his
brother for more than 35 hours per week, he lost something of real value to himself (as well as to his brother) which was
his contribution to his family’s welfare, and his loss imposed a corresponding obligation on his mother to make good
by her own care what he was no longer able to provide. In my judgment the appellant is entitled to claim in respect
of the loss of his ability to look after his brother’.
In the decision of Devoy v William Doxford & Sons Limited [2009] EWHC 1598 (QB), the claimant argued for a similar head of loss on behalf
of her deceased husband who had died as a result of mesothelioma. It was argued that due to his symptoms, the deceased was unable
to care for the claimant who suffered with Parkinson’s disease. It was argued on behalf of the claimant that, in addition to an award for
PSLA, there should be a separate award for the deceased’s reduced ability to care for the claimant during the period leading up to his
death.
Sitting in the High Court, HHJ Reddihough, acknowledged that the case of Lowe made it clear that these awards can be made. However,
at para 55 stated; ‘In my judgment, bearing in mind the relatively limited period of the deceased’s reduced ability to care for his wife, it is
appropriate to include that element in the award for General Damages for pain and suffering and I so do’.
Will such loss of amenity at a young age mean the courts are likely to make a higher award under this head of loss?
We have discussed the impact of age and life expectancy on PSLA claims above.
CONCLUSION
In this feature, we have provided an overview of the different elements which will be taken into consideration when making an award for
PSLA in a mesothelioma claim.
Some of the main pointers which became clear are:
PSLA incorporates awards for losses above and beyond physical injury.
The amount of a PSLA award will not depend entirely on the duration symptoms were suffered before the death of the deceased
– although this will be a consideration.
The personal circumstances of each claimant/deceased must be examined in detail.
The JC Guidelines, are just that, Guidelines which can be departed from by the judiciary.
Equally as important in a fatal quantum claim as the Guidelines, are comparable quantum cases.
Our mesothelioma PSLA tool can also be accessed here – which provides estimated common law awards, taking into account the age
and duration of symptoms of the claimant.
Next week, we will complete our analysis of the heads of loss under the LRMPA.
PAGE | 18
References
1 Jason Bleasdale, ‘Fixed costs applied to dermatitis claim’ (19 October 2017 Lexology)
<https://www.lexology.com/library/detail.aspx?g=a71ef271-5962-4fcb-be93-24b7e8648c36> accessed 1 November 2017.
2 Nick Hilborne, ‘ABI boss avoids saying how much insurers will gain from new discount rate’ (1 November 2017 Litigation Futures)
<https://www.litigationfutures.com/news/abi-boss-avoids-saying-much-insurers-will-gain-new-discount-rate> accessed 1 November
2017.
3 Neil Rose, ‘Slater & Gordon tells shareholders: Accept refinancing plan or we will go bust’ (31 October 2017 Legal Futures)
<https://www.legalfutures.co.uk/latest-news/slater-gordon-tells-shareholders-accept-refinancing-plan-will-go-bust> accessed 1
November 2017.
4 John Hyde, ‘Slater and Gordon chief leaves with £162k’ (31 October 2017 Law Society Gazette)
<https://www.lawgazette.co.uk/practice/slater-and-gordon-chief-leaves-with-162k/5063474.article> accessed 1 November 2017.
5 Neil Rose, ‘Government to review Jackson reforms next year’ (31 October 2017 Litigation Futures)
<https://www.litigationfutures.com/news/government-review-jackson-reforms-next-year> accessed 1 November 2017.
6 Nick Hilborne, ‘High Court blocks abolition of recoverability in mesothelioma cases’ (3 October 2014 Litigation Futures)
<https://www.litigationfutures.com/news/high-court-blocks-abolition-recoverable-success-fees-insurance-premiums-mesothelioma-
cases> accessed 1 November 2017.
7 Neil Rose, ‘Government in unexpected u-turn on CMC cold-calling ban’ (27 October 2017 Legal Futures)
<https://www.legalfutures.co.uk/latest-news/government-unexpected-u-turn-cmc-cold-calling-ban> accessed 30 October 2017.
8 HL Deb 24 October 2017, vol 785 <https://hansard.parliament.uk/lords/2017-10-24/debates/C79B2A82-EEA0-4267-A7CB-
AEC232990C08/FinancialGuidanceAndClaimsBill(HL)> accessed 30 October 2017.
9 Vigneswaran, W. T. et al. Influence of Pleurectomy and Decortication in Health-Related Quality of Life Among Patients with Malignant
Pleural Mesothelioma. World J Surg 1–10 (2017). doi:10.1007/s00268-017-4264-4 (Accessed 24th October 2017).
10 Surgery. Mesothelioma UK. http://www.mesothelioma.uk.com/information-and-support/about-mesothelioma/treatments/surgery/
(Accessed 24th October 2017).
11 Aggressive Mesothelioma Surgery Benefits More Patients. Asbestos.com 11 October 2017
https://www.asbestos.com/news/2017/10/11/aggressive-mesothelioma-surgery-benefits-more-patients/ (Accessed 24th October 2017).
12 Ibid at 10.
13 Ibid at 11.
14 A study looking at surgery for mesothelioma (MARS 2). Cancer Research UK http://www.cancerresearchuk.org/about-cancer/find-a-
clinical-trial/a-study-looking-at-surgery-for-mesothelioma-mars-2#undefined (Accessed 24th October 2017).
15 Computer programme could predict if immunotherapy will work. Cancer Research UK. 27 October 2017.
http://www.cancerresearchuk.org/about-us/cancer-news/news-report/2017-10-27-computer-programme-could-predict-if-
immunotherapy-will-work (Accessed 30th October 2017).
16 AACR-NCI-EORTC International Conference on Molecular Targets and Cancer Therapeutics: Discovery, Biology and Clinical
Applications. October 26-30 2017. American Association for Cancer Research
http://www.aacr.org/Meetings/Pages/MeetingDetail.aspx?EventItemID=113#.Wfj0IKNh0_V (Accessed 31th October 2017).
17 A Non-invasive Computational Imaging Approach May Help Predict Response to Immunotherapy
http://mb.cision.com/Public/3069/2371973/9b82aa9989336285.pdf.
PAGE | 19
18 Ibid no 1
19 Ibid no 3
20 https://www.mesothelioma.com/mesothelioma/types/pleural.htm
21 http://www.cancerresearchuk.org/about-cancer/mesothelioma/symptoms
22 https://www.mesothelioma.com/mesothelioma/types/peritoneal.htm
23 Judicial College, Guidelines For The Assessment of General Damages In Personal Injury Cases, (OUP, 13
th Edition 2015).
24 https://www.asbestos.com/mesothelioma/peritoneal.php
25 Kemp on Lawtel – Chapter 3 – para 3-011.
PAGE | 20
Disclaimer
This newsletter does not present a complete or
comprehensive statement of the law, nor does it
constitute legal advice. It is intended only to provide
an update on issues that may be of interest to those
handling occupational disease claims. Specialist
legal advice should always be sought in any
particular case.
© BC Legal 2016.
BC Legal is a trading name of BC Legal Limited which
is registered in England and Wales under company
number 08963320. We are authorised and regulated
by the Solicitors Regulation Authority. The registered
office is 1 Nelson Mews, Southend-on-Sea, SS1 1AL.
The partners are Boris Cetnik and Charlotte Owen.
More details on the firm can be found at www.bc-
legal.co.uk
PAGE | 21
Directors: B. Cetnik, C. Owen
Registered Office: 1 Nelson Mews, Southend-On-Sea, SS1 1AL
BC Legal is a trading name of BC Legal Limited which is registered in England and Wales under company number 08963320
We are Authorised and Regulated by the Solicitors Regulations Authority (SRA No 617698)