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)