Mesothelioma Claims: Guide for Letters of Claim & Response, Study notes of Civil procedure

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Pre-Action Protocol for Disease and Illness Claims Contents 1 Introduction 2 Notes of guidance 2A ALTERNATIVE DISPUTE RESOLUTION 3 The aims of the protocol 4 The protocol 5 Communication 6 Letter of claim 7 The response 8 Special damages 9 Experts 10 Resolution of issues 11 Limitation Annex A LETTER REQUESTING OCCUPATIONAL RECORDS INCLUDING HEALTH RECORDS Annex A1 APPLICATION ON BEHALF OF A POTENTIAL CLAIMANT FOR USE WHERE A DISEASE CLAIM IS BEING INVESTIGATED Annex B TEMPLATE FOR LETTER OF CLAIM Annex C GUIDANCE FOR CASES INVOLVING MESOTHELIOMA – EARLY NOTIFICATION LETTER Annex D EARLY NOTIFICATION LETTER FOR USE IN CASES INVOLVING MESOTHELIOMA 1 Introduction 1.1 Lord Woolf in his final Access to Justice Report of July 1996 recommended the development of protocols: ‘To build on and increase the benefits of early but well informed settlements which genuinely satisfy both parties to a dispute.’ 1.2 The aims of these protocols are: . more contact between the parties . better and earlier exchange of information . better investigation by both sides . to put the parties in a position where they may be able to settle cases fairly and early without litigation . to enable proceedings to run to the court’s timetable and efficiently, if litigation does become necessary. PROTOCOLS CIVIL PROCEDURE RULES Pre-Action Protocol for Disease and Illness Claims page 1 PROTOCOLS OCTOBER 2011 1.3 The concept of protocols is relevant to a range of initiatives for good claims practice, especially: . predictability in the time needed for steps to be taken . standardisation of relevant information, including documents to be disclosed. 1.4 The Courts will be able to treat the standards set in protocols as the normal reasonable approach. If proceedings are issued, it will be for the court to decide whether non-compliance with a protocol should merit adverse consequences. Guidance on the court’s likely approach will be given from time to time in practice directions. 1.5 If the court has to consider the question of compliance after proceedings have begun, it will not be concerned with minor infringements, e.g. failure by a short period to provide relevant information. One minor breach will not exempt the ‘innocent’ party from following the protocol. The court will look at the effect of non-compliance on the other party when deciding whether to impose sanctions. 2 Notes of guidance SCOPE OF THE PROTOCOL 2.1 This protocol is intended to apply to all personal injury claims where the injury is not as the result of an accident but takes the form of an illness or disease. 2.2 This protocol covers disease claims which are likely to be complex and frequently not suitable for fast-track procedures even though they may fall within fast track limits. Disease for the purpose of this protocol primarily covers any illness physical or psychological, any disorder, ailment, affliction, complaint, malady, or derangement other than a physical or psychological injury solely caused by an accident or other similar single event. 2.3 In appropriate cases it may be agreed between the parties that this protocol can be applied rather than the Pre-Action Protocol for Personal Injury Claims where a single event occurs but causes a disease or illness. 2.4 This protocol is not limited to diseases occurring in the workplace but will embrace diseases occurring in other situations for example through occupation of premises or the use of products. It is not intended to cover those cases, which are dealt with as a ‘group’ or ‘class’ action. 2.5 The ‘cards on the table’ approach advocated by the Pre-Action Protocol for Personal Injury Claims is equally appropriate to disease claims. The spirit of that protocol, and of the clinical negligence protocol is followed here, in accordance with the sense of the civil justice reforms. 2.6 The timetable and the arrangements for disclosing documents and obtaining expert evidence may need to be varied to suit the circumstances of the case. If a party considers the detail of the protocol to be inappropriate they should communicate their reasons to all of the parties at CIVIL PROCEDURE RULES page 2 Pre-Action Protocol for Disease and Illness Claims Protocols OCTOBER 2011 . to discourage the prolonged pursuit of unmeritorious claims and the prolonged defence of meritorious claims; . to encourage all parties, at the earliest possible stage, to disclose voluntarily any additional documents which will assist in resolving any issue; . to promote the provision of medical or rehabilitation treatment in appropriate cases to address the needs of the claimant. 4 The protocol This protocol is not a comprehensive code governing all the steps in disease claims. Rather it attempts to set out a code of good practice which parties should follow. This protocol must be read in conjunction with the Practice Direction on Pre-Action Conduct. OBTAINING OCCUPATIONAL RECORDS INCLUDING HEALTH RECORDS 4.1 In appropriate cases, a potential claimant may request Occupational Records including Health Records and Personnel Records before sending a Letter of Claim. 4.2 Any request for records by the potential claimant or his adviser should provide sufficient information to alert the potential defendant or his insurer where a possible disease claim is being investigated; Annex A1 provides a suggested form for this purpose for use in cases arising from employment. Similar forms can be prepared and used in other situations. 4.3 The copy records should be provided within a maximum of 40 days of the request at no cost. Although these will primarily be occupational records, it will be good practice for a potential defendant to disclose product data documents identified by a potential claimant at this stage which may resolve a causation issue. 4.4 Where the potential defendant or his insurer has difficulty in providing information quickly (in particular where the information is, or may be, held by someone else such as the Health and Safety Executive) details should be provided of steps being taken to resolve this problem together with a reasonable time estimate for doing so. 4.5 If the potential defendant or his insurer fails to provide the records including health records within 40 days and fails to comply with paragraph 4.4 above, the potential claimant or his adviser may then apply to the court for an order for pre-action disclosure. The Civil Procedure Rules make pre-action applications to the court easier. The court also has the power to impose costs sanctions for unreasonable delay in providing records. CIVIL PROCEDURE RULES Pre-Action Protocol for Disease and Illness Claims page 5 PROTOCOLS OCTOBER 2011 5 Communication 5.1 If either the potential claimant or his adviser considers additional records are required from a third party, such as records from previous employers or GP and hospital records, in the first instance these should be requested by the potential claimant or their advisers. Third party record holders would be expected to co-operate. The Civil Procedure Rules enable parties to apply to the court for pre-action disclosure by third parties. 5.2 As soon as the records have been received and analysed, the potential claimant or his adviser should consider whether a claim should be made. GP and hospital records will normally be obtained before a decision is reached. 5.3 If a decision is made not to proceed further at this stage against a party identified as a potential defendant, the potential claimant or his adviser should notify that potential defendant in writing as soon as practicable. 6 Letter of claim 6.1 Where a decision is made to make a claim, the claimant shall send to the proposed defendant two copies of a letter of claim, as soon as sufficient information is available to substantiate a realistic claim and before issues of quantum are addressed in detail. One copy is for the defendants, the second for passing on to his insurers. 6.2 This letter shall contain a clear summary of the facts on which the claim is based, including details of the illness or disease alleged, and the main allegations of fault. It shall also give details of present condition and prognosis. The financial loss incurred by the claimant should be outlined. Where the case is funded by a conditional fee agreement, notification should be given of the existence of the agreement and where appropriate, that there is a success fee and insurance premium, although not the level of the success fee or premium. 6.3 Where the funding arrangement is an insurance policy the party must state – (1) the name and address of the insurer; (2) the policy number; (3) the date of the policy; (4) the claim or claims to which it relates (including Part 20 claims if any); (5) the level of cover; and (6) whether the premiums are staged and if so the points at which the increased premiums are payable. CIVIL PROCEDURE RULES page 6 Pre-Action Protocol for Disease and Illness Claims Protocols OCTOBER 2011 6.4 Solicitors are recommended to use a standard format for such a letter – an example is at Annex B: this can be amended to suit the particular case, for example, if the client has rehabilitation needs these can also be detailed in the letter. 6.5 A chronology of the relevant events (e.g. dates or periods of exposure) should be provided. In the case of alleged occupational disease an appropriate employment history should also be provided (with a work history from HM Revenue and Customs), particularly if the claimant has been employed by a number of different employers and the illness in question has a long latency period. Where there is more than one employer the chronology should state if there was any relevant exposure during each of those different periods of employment. Details should also be given about any periods of self-employment during which there was any relevant exposure and whether any claims have been made and payments received under the Pneumoconiosis etc (Workers’ Compensation) Act 1979. 6.6 The letter of claim should identify any relevant documents, including health records not already in the defendant’s possession e.g. any relevant GP and hospital records. These will need to be disclosed in confidence to the nominated insurance manager or solicitor representing the defendant following receipt of their letter of acknowledgement. Where the action is brought under the Law Reform Act 1934 or the Fatal Accidents Act 1976 then relevant documents will normally include copies of the death certificate, the post mortem report, the inquest depositions and if obtained by that date the grant of probate or letters of administration. 6.7 The letter of claim should indicate whether a claim is also being made against any other potential defendant and identify any known insurer involved. Copies of any relevant result from the Association of British Insurers Employers’ Liability Tracing Service, both positive and negative, should be attached to the letter of claim. If the claimant receives any insurance database results after sending the letter of claim those results should be forwarded to the defendant as soon as is reasonably practicable. 6.8 Sufficient information should be given to enable the defendant’s insurer/solicitor to commence investigations and at least to put a broad valuation on the ‘risk’. 6.9 It is not a requirement for the claimant to provide medical evidence with the letter of claim, but the claimant may choose to do so in very many cases. 6.10 Letters of claim and response are not intended to have the same status as a statement of case in proceedings. Matters may come to light as a result of investigation after the letter of claim has been sent, or after the defendant has responded, particularly if disclosure of documents takes place outside the recommended 90 day period. These circumstances could mean that the ‘pleaded’ case of one or both parties is presented slightly differently than in the letter of claim or response. It would not be consistent with the spirit of the protocol for a party to ‘take a point’ on this in the proceedings, provided that there was no obvious intention by the party who changed their position to mislead the other party. 6.11 Proceedings should not be issued until after 90 days from the date of acknowledgement (see paragraph 7), unless there is a limitation problem and/or the claimant’s position needs to be protected by early issue. (See paragraphs 2.6 and 2.7) CIVIL PROCEDURE RULES Pre-Action Protocol for Disease and Illness Claims page 7 PROTOCOLS OCTOBER 2011 9.5 Where the parties agree the nomination of a single expert is appropriate, before any party instructs an expert he should give the other party a list of the name (s) of one or more experts in the relevant speciality whom he considers are suitable to instruct. The parties are encouraged to agree the instruction of a single expert to deal with discrete areas such as cost of care. 9.6 Within 14 days the other party may indicate an objection to one or more of the named experts. The first party should then instruct a mutually acceptable expert. If the Claimant nominates an expert in the original letter of claim, the 14 days is in addition to the 21 days in paragraph 7.1. 9.7 If the second party objects to all the listed experts, the parties may then instruct experts of their own choice. It would be for the court to decide subsequently, if proceedings are issued, whether either party had acted unreasonably. 9.8 If the second party does not object to an expert nominated, he shall not be entitled to rely on his own expert evidence within that particular speciality unless: (a) the first party agrees, (b) the court so directs, or (c) the first party’s expert report has been amended and the first party is not prepared to disclose the original report. 9.9 Either party may send to an agreed expert written questions on the report, relevant to the issues, via the first party’s solicitors. The expert should send answers to the questions separately and directly to each party. 9.10 The cost of a report from an agreed expert will usually be paid by the instructing first party: the costs of the expert replying to questions will usually be borne by the party which asks the questions. 9.11 Where the defendant admits liability in whole or in part, before proceedings are issued, any medical report obtained under this protocol which the claimant relies upon, should be disclosed to the other party. 9.12 Where the defendant obtains a medical report on which he seeks to rely this should be disclosed to the claimant. 9.13 For further guidance see Part 35 of the CPR, Practice Direction 35 and the Protocol for the Instruction of Experts to give Evidence in Civil Claims which is annexed to that Practice Direction. 10 Resolution of issues 10.1 The Civil Procedure Rules Part 36 enable claimants and defendants to make formal offers to settle before proceedings are started. Parties should consider making such an offer, since to do CIVIL PROCEDURE RULES page 10 Pre-Action Protocol for Disease and Illness Claims Protocols OCTOBER 2011 so often leads to settlement. If such an offer is made, the party making the offer must always supply sufficient evidence and/or information to enable the offer to be properly considered. 10.2 Where a claim is not resolved when the protocol has been followed, the parties might wish to carry out a ‘stocktake’ of the issues in dispute, and the evidence that the court is likely to need to decide those issues, before proceedings are started. 10.3 Prior to proceedings it will be usual for all parties to disclose those expert reports relating to liability and causation upon which they propose to rely. 10.4 The claimant should delay issuing proceedings for 21 days from disclosure of reports to enable the parties to consider whether the claim is capable of settlement. 10.5 Where the defendant is insured and the pre-action steps have been conducted by the insurer, the insurer would normally be expected to nominate solicitors to accept service of proceedings and the claimant’s solicitor is recommended to invite the insurer to nominate solicitors to accept service of proceedings and to do so 7-14 days before the intended issue date. 11 Limitation 11.1 If by reason of complying with any part of this protocol a claimant’s claim may be time-barred under any provision of the Limitation Act 1980, or any other legislation which imposes a time limit for bringing an action, the claimant may commence proceedings without complying with this protocol. In such circumstances, a claimant who commences proceedings without complying with all, or any part, of this protocol may apply to the court on notice for directions as to the timetable and form of procedure to be adopted, at the same time as he requests the court to issue proceedings. The court will consider whether to order a stay of the whole or part of the proceedings pending compliance with this protocol. CIVIL PROCEDURE RULES Pre-Action Protocol for Disease and Illness Claims page 11 PROTOCOLS OCTOBER 2011 Annex A LETTER REQUESTING OCCUPATIONAL RECORDS INCLUDING HEALTH RECORDS LETTER REQUESTING OCCUPATIONAL RECORDS INCLUDING HEALTH RECORDS Dear Sirs, We are acting on behalf of the above-named who has developed the following (insert disease). We are investigating whether this disease may have been caused: - • during the course of his employment with you / name of employer if different • whilst at your premises at (address) • as a result of your product (name) We are writing this in accordance with the Protocol for Disease and Illness Claims We seek the following records: - (Insert details e.g. personnel / occupational health) Please note your insurers may require you to advise them of this request. We enclose a request form and expect to receive the records within 40 days. If you are not able to comply with this request within this time, please advise us of the reason. Yours faithfully CIVIL PROCEDURE RULES page 12 Pre-Action Protocol for Disease and Illness Claims Protocols OCTOBER 2011 Annex B TEMPLATE FOR LETTER OF CLAIM TEMPLATE FOR LETTER OF CLAIM To: - Defendant Dear Sirs Re: Claimant’s full name Claimant’s full address Claimant’s National Insurance Number Claimant’s Date of Birth Claimant’s Clock or Works Number Claimant’s Employer (name and address) We are instructed by the above named to claim damages in connection with a claim for: - Specify occupational disease We are writing this letter in accordance with the pre-action protocol for disease and illness claims. Please confirm the identity of your insurers. Please note that your insurers will need to see this letter as soon as possible and it may affect your insurance cover if you do not send this to them. The Claimant was employed by you (if the claim arises out of public or occupiers’ liability give appropriate details) as job description from date to date. During the relevant period of his employment he worked: - description of precisely where the Claimant worked and what he did to include a description of any machines used and details of any exposure to noise or substances The circumstances leading to the development of this condition are as follows: - Give chronology of events (and in appropriate cases attach a work history from H M Revenue and Customs) The reason why we are alleging fault is: - Details should be given of contemporary and comparable employees who have suffered from similar problems if known; any protective equipment provided; complaints; the supervisors concerned, if known. Our client’s employment history is attached. We have also made a claim against: - Insert details Their insurers’ details are: - Insert if known We have the following documents in support of our client’s claim and will disclose these in confidence to your nominated insurance manager or solicitor when we receive their acknowledgement letter. e.g. Occupational health notes; GP notes CIVIL PROCEDURE RULES Pre-Action Protocol for Disease and Illness Claims page 15 PROTOCOLS OCTOBER 2011 We have obtained a medical report from (name) and will disclose this when we receive your acknowledgement of this letter. (This is optional at this stage) From the information we presently have: - (i) the Claimant first became aware of symptoms on (insert approximate date) (ii) the Claimant first received medical advice about those symptoms on (insert date) (give details of advice given if appropriate) (iii) the Claimant first believed that those symptoms might be due to exposure leading to this claim on (insert approximate date) A description of our client’s condition is as follows: - This should be sufficiently detailed to allow the Defendant to put a broad value on the claim (For appropriate cases) Our client is still suffering from the effect of his/her condition. We invite you to participate with us in addressing his/her immediate needs by use of rehabilitation. He has the following time off work: - Insert dates He is presently employed as a job description and his average net weekly income is £ If you are our client’s employers, please provide us with the usual earnings details, which will enable us to calculate his financial loss. Please note that we have entered into a conditional fee agreement with our client dated in relation to this claim which provides for a success fee within the meaning of section 58(2) of the Courts and Legal Services Act 1990. Our client has taken out an insurance policy dated with (name and address of insurance company) to which section 29 of the Access to Justice Act 1999 applies in respect of this claim. The policy number is [insert], the policy is dated [insert] and the level of cover is [insert]. The premiums payable under the insurance policy [are not] [are] staged [and the points at which the increase premiums are payable are as follows:]. A copy of this letter is attached for you to send to your insurers. Finally we expect an acknowledgement of this letter within 21 days by yourselves or your insurers. Yours faithfully CIVIL PROCEDURE RULES page 16 Pre-Action Protocol for Disease and Illness Claims Protocols OCTOBER 2011 Annex C GUIDANCE FOR CASES INVOLVING MESOTHELIOMA – EARLY NOTIFICATION LETTER Purpose 1. The purpose of the early notification letter is twofold. First, the intention is to give defendants and their insurers as much advance warning as possible about the possibility of a claim so that they can begin to investigate the matter. This is particularly so where relevant information may be decades old and may take time to locate and retrieve. Second, where the claimant has severely limited life expectancy it gives advance warning to defendants of the need for urgency in locating relevant information. 2. It is intended that the early notification letter will be sent before the letter of claim and will not start the timetable for response as set out in paragraph 7 of this protocol. 3. As soon as sufficient information is available to identify a proposed defendant, the claimant should send to the proposed defendant two copies of the early notification letter. One copy is for the defendant, the second for passing on to the defendant’s insurers. The claimant should also send a further copy of the same letter directly to the defendant’s insurer, where known. In the case of a defunct company the further copy of the letter should be sent to the relevant insurer or handler of that defunct company. Content of Early Notification Letter 4. All copies of the early notification letter should be clearly marked ‘MESOTHELIOMA CLAIM’. 5. The early notification letter should contain basic information sufficient to identify the claimant, the periods of relevant exposure and the potential defendants. As a minimum, the early notification letter should contain the following information: (a) name and address of the claimant/deceased; (b) national insurance number of the claimant/deceased (if known); (c) claimant/deceased’s date of birth; (d) employers, where known, of relevant employment and or exposure; (e) occupiers of premises, where known, of relevant employment and/or exposure; (f) date or approximate dates, where known, of relevant employment and or exposure; (g) direct contact details, including e-mail address, for the claimant’s legal representative; (h) marital status; (i) details of dependents; and (j) date of diagnosis. CIVIL PROCEDURE RULES Pre-Action Protocol for Disease and Illness Claims page 17 PROTOCOLS OCTOBER 2011