In this article, we look back at how industrial disease claims have progressed over the last year, before considering what's coming down the track.
The Story So Far
In March 2020, most courts in Scotland were only dealing with essential business. This led to a break in proceedings for a number of months in most injury cases.
However, a pragmatic approach adopted by the courts in prioritising cases allowed for progress in some industrial disease cases. The Court of Session recognised the urgency of certain claims involving serious respiratory diseases (such as mesothelioma and lung cancer). This allowed them to be identified as a priority and progressed.
As the months passed, one of the major advances we saw as a result of the pandemic was the onset of remote hearings and virtual proofs. Indeed, some proofs (trials) relating to disease claims have now proceeded remotely.
The presumptive position in Scotland now is that civil court proceedings will proceed remotely. In both Sheriff Courts and the Court of Session, the standard position is that only hearings which require the leading of evidence can be in person. Even then, this is only in exceptional circumstances such as where evidence cannot be led remotely or where it is considered it will be detrimental and undesirable for the evidence to be led remotely. Of course, the courts' capacity for "in person" hearings is limited because of social distancing requirements and so it makes sense for virtual hearings to be the default. This has prevented a significant backlog of proofs building up.
Although not appropriate for all cases, virtual hearings are a positive development and one we expect to last beyond the pandemic. For industrial disease cases, the ability, for example, to have an expert witness giving evidence virtually from wherever they are in the world is particularly welcome. There are a limited number of industrial disease experts so removing geographical constraints long term would be an advantage for pursuers and defenders alike.
Looking Ahead
Treatment Costs
As diagnostics improve, we are seeing claims being intimated by younger pursuers. In these cases, there may be more treatment options available with a view to alleviating symptoms and improving life expectancy.
Studies indicate that new immunotherapy drugs may be effective in treating some asbestos related conditions. As immunotherapy for mesothelioma is still considered an experimental treatment, it is not yet available on the NHS. Some pursuers are therefore seeking the cost of this treatment as part of their claim. Whether this will increase the overall value of a claim remains to be seen as the provision of treatment may reduce the level of (or indeed obviate the need for) other heads of claim.
As an ongoing development, experimental treatment costs can be difficult to quantify. For example, the number of immunotherapy cycles required won't be known at the outset of treatment. As a consequence, some pursuers are seeking agreements that the defender will cover the costs of future treatment. However, this unknown future liability may present reserving difficulties for defenders and/or their insurers.
One option, which has been agreed in a number of cases, is for defenders/their insurers to agree to cover future recommended treatment up to a cap, or for a certain period. This has the benefit of providing greater certainty to defenders as to the extent of their liability while still allowing suitable cases to be settled and ensuring the pursuer is appropriately compensated.
Quantified One-Way Costs Shifting (QOCS)
QOCS will be implemented in Scotland from 30 June 2021.
We await sight of the finalised rules, however QOCS will see the current default position, that "expenses follow success", replaced. Once implemented, an unsuccessful pursuer will not be found liable for a defender's legal costs if the pursuer is considered to have conducted the litigation reasonably.
How QOCS will operate in practice, including what will be deemed by the courts to be "reasonable", remains to be seen. However, there is some trepidation that the introduction of QOCS, and the reduction of risk to a pursuer of a costs award going against them, may, at least initially, lead to an uptake in claims. Industrial disease claims often involve difficult questions around liability, causation and diagnosis. In historic cases, there is often a lack of evidence. . Currently, the risk of a costs award against a pursuer discourages more speculative claims from being raised or, at least, encourages claims to be abandoned when it is clear there are little or no prospects. The removal of a costs sanction may lead to claims with low prospects of success being raised and pursued through much of the court timetable, driving up costs for insurers with little deterrent for the pursuer. It will be important for defenders and their representatives to develop strategies to ensure that the right claims are defended.
Pre-Action Protocols
Looking further into the future, a specific compulsory pre-action protocol for disease claims is anticipated. Scotland's Compulsory Pre-Action Protocol for personal injury actions has been in place since 2016. However, the protocol specifically excludes disease claims. A compulsory disease protocol has been under consultation for some time. It is not known when this will be finalised. Once agreed, it will provide greater certainty for pre-litigation procedure for these types of claims.
Contributors
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