Thursday, 5 September 2013

Calling all practitioners: take time to make sure the Mesothelioma Bill is as good as it can be

The House of Commons returned after the summer recess last Thursday, meaning that MPs now get on with one of their core functions - scrutinising, debating and voting on proposed legislation.

There is little over a week to go before MPs have another break - this time for the Autumn conferences. In that time, it is possible that the Mesothelioma Bill, which completed its passage through the House of Lords in July, will come before the Commons for the first time. A date has yet to be set for its first reading (that is, its formal introduction into the House of Commons, without a debate) but this may well happen shortly. After all, it is a formality, which sees the short title of the Bill read out. There is then an order that the Bill be printed on House of Commons paper for the first time.

Thereafter, there is some way to go before the Bill becomes law. There will be a second reading - probably in October - and after this (a general debate) the Bill goes to Committee and Report stages. Then there's a third reading and further consideration of any amendments before the Bill obtains Royal Assent and enters the statute books.

A laudable Bill

The process is one of checks and balances, designed to ensure that we're not inflicted with 'bad law'. And, when it comes to the Mesothelioma Bill, the fact that there is room for further debate and potential amendment is a good thing. Before explaining why, let's quickly recap on the genesis of this particular Bill.

The government's reasons for introducing the Mesothelioma Bill are laudable. Its aim is to provide compensation for sufferers of mesothelioma by setting up a lump-sum payment scheme funded by insurers. The Bill will therefore establish a mesothelioma payments scheme as well as guidance about the resolution of certain insurance disputes for those affected by mesothelioma. Its introduction is arguably long overdue, given what we know about mesothelioma: that it is a disease caused by exposure to asbestos, with a long delay between exposure and developing the disease (often 40 to 50 years). It is nearly always fatal. Over the years sufferers have faced a massive battle to obtain compensation, owing either to the difficulty of tracing employers or, indeed, insurers. Hence, then, the sensible and commendable advent of the Mesothelioma Bill.

Speed should be of the essence

Approximately 2,200 people currently die in England and Wales each year from mesothelioma, with sufferers having an average life expectancy of only seven to nine months from diagnosis. A further statistic illustrates a problem with the Bill, as it is presently drafted: some 50% of claims for compensation for mesothelioma take over 12 months to settle, which means that sufferers may die before their claims are paid out.

It is vital that the Bill speeds up the process. Speed must become of the essence. The Ministry of Justice is consulting on reforming mesothelioma claims, with one of its proposals being to introduce a new dedicated Mesothelioma Pre-Action Protocol (MPAP), which would replace the existing pre-action protocol for disease and illness (DPAP). The real fear of practitioners is that the new MPAP, if not radically amended, will have the sad consequence of delaying and obstructing, not expediting the conduct of claims.

The Association of Personal Injury Lawyers (APIL) has a clear view of any such pre-action protocol: for it to work effectively, there must be sanctions attached to the non-adherence to the time-scales within it. APIL's brief here is to campaign on behalf of mesothelioma sufferers and ensure that MPs are fully up to speed with all the issues surrounding the Mesothelioma Bill. To that end, APIL has set up a survey, the deadline for completion of which Friday 6 September.

Two fundamental questions arise:

  1. For mesothelioma claims, how often is liability admitted within the protocol period in the current DPAP?
  2. How often is it necessary to leave the DPAP and issue court proceedings for mesothelioma claims?

Please spare five minutes to complete APIL's questionnaire, which can be found here. Your answers will go a long way to ensuring that the Mesothelioma Bill provides the best possible means of redress for sufferers of this terrible disease.

Mesothelioma claims and the current disease pre-action protocol

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