That deadly dust

One of the saddest areas of personal injury litigation, is that sub area of work which concerns claims arising from exposure to asbestos. 

Asbestos is a group of naturally occurring fibrous minerals. Its use dates back thousands of years, with evidence suggesting it was used in ancient Greece and Egypt for wicks in lamps, funeral cloths, and building materials.

The Romans also used asbestos, and it’s noted that slaves mining the material suffered from lung problems, an early indication of its harmful effects. Whilst in antiquity, evidence suggested early recognition of the dangers of asbestos, it wasn’t until the 20th century that the health risks became widely acknowledged.

Industrialisation in the 19th and 20th centuries saw a dramatic increase in asbestos use due to its fire-resistant, insulating, and durable properties. It was used in construction materials, automotive parts, and even clothing. However, the widespread use of asbestos brought to light its dangerous health implications.

Exposure to asbestos fibers (commonly referred to as asbestos dust) can lead to serious diseases, including asbestosis (a lung disease causing scarring of lung tissue), lung cancer, and mesothelioma (a rare cancer of the lining of internal organs). These conditions often take years to develop after exposure.

Litigation regarding asbestos exposure began to emerge in the mid-20th century, both in the USA and UK, as workers and their families sought compensation for asbestos-related diseases. In the USA, the legal battles led to some of the largest settlements and bankruptcy filings in history, as companies were held accountable for exposing workers to asbestos without adequate protection or warning.

In England and Wales, the last 25 years have seen considerable developments, both in the substantive law governing the recovery of compensation, but also in respect of procedural innovation, and in particular the introduction of Practice Direction 49B and the associated provisions of the Kings Bench Division Guide, which channel all mesotheolioma claims into the Kings Bench Division in London.

Mesothelioma claims have also, uniquely, been spared from the LASPO 2012 reforms, with their abolition of the concepts of recoverable success fees and after the event (ATE) insurance premiums. Instead the law remains as it was before the 1st April 2013, with scope for a claimant-receiving party to recover from a defendant-paying party a success fee as well as an ATE premium.

This was not meant to be a permanent state of affairs: however the initial steps by the government to undertake a review, in order to repeal this special saving provision, were quashed by the High Court years ago: and the government has not returned to the fray. Additionally in respect of cases  litigated through the Kings Bench Division, the parties costs are usually not subject to costs management, and costs are assessed in the Senior Courts Costs Office.

Three aspects of those assessments usually prove controversial. The first relates to hourly rates. The law is trite on this point. Hourly rates are assessed under part 44 CPR. Guideline hourly rates have some utility on detailed assessment, but are regarded by most judges as a starting point or a cross check on assessment. Rates are usually claimed in excess of Guideline hourly rates, and justified on the grounds of complexity or the importance to the parties or any of the other factors which form part of the “Eight Pillars of Wisdom” and expressed as a percentage uplift over the guideline rate.

However, given the currency of the recently introduced guideline hourly rates in 2021 and now in 2024, it remains an interesting question as to what, if any should be the uplift. The guidelines are based on data of what judges were awarding in the years 2019-2021, not what the “market rate” nominally was: and the notion of a market rate nestles uneasily where there is inequality of bargaining power, between a client and a solicitor in this context.

The second relates to the success fee. Success fees in employers liability cases are fixed under the former rules and usually at a figure of 27.5%. Where an employer’s liability case concludes for more than £250,000 it is possible for either party to apply for the success fee to be increased (or decreased!) by way of assessment rather than the fixed prescribed success fee in the old part 45 of the pre-2013 Civil Procedure Rules.

However, settlement for a sum in excess of £250,000 only opens the door to a departure from the fixed success fee: as the case of Barry Hewitt v SA Hopkins & Son indicates such an application can be fraught and must be carefully weighed. It should also be noted that there will be cases of mesothelioma which arise other than in the context of an employment relationship, and in those cases the success fees will be at large.

The third relates to counsel’s fees. In this field counsel’s involvement is often significant: these are High Court claims, with compressed timetables for pleadings, schedules of loss, show cause hearings, and directions, with cases being progressed towards trial, with what passes for despatch in the civil courts these days. Brief fees are often incurred, and cases settle shortly before trial.

Yet the cases are often modestly valued in the context of other High Court litgation, as the claimants are elderly, or a claim is being made in respect of someone deceased. Although it is sometimes thought by paying parties that the courts are more generous with counsels fees than solicitors costs, this is not always so, and I shall consider the principles on which counsels’ fees are assessed and when brief fees may be recovered, or not, when a case settles before trial in the next post.

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