Legal advice
I have been diagnosed with mesothelioma. Should I see a solicitor?
Do I need to see a solicitor immediately?
Can I go to any solicitor?
Will it cost me a lot of money?
I am in a trades union/professional association – can they help me?
Will I have to appear in court?
My relative recently died from mesothelioma – is it too late for me/the family to take any legal action?
My partner has mesothelioma and is very ill – can we delay seeing a solicitor?
I have been told that I probably have mesothelioma and I have been exposed to asbestos in the past. Should I see a solicitor even though the diagnosis isn’t 100% certain?
My exposure to asbestos was a long time ago - what if my employer no longer exists?
Coroner’s inquests
I have been diagnosed with mesothelioma. Should I see a solicitor?
Yes, if at all possible, as medical experts estimate that at least 90% of all mesothelioma cases are caused by exposure to asbestos (usually in the workplace) and, more often than not, someone else (be it an employer, factory/premises owner or asbestos manufacturer) is to blame.
Often people say, “but no one knew of the risks in those days; it was so long ago” and put off the idea of taking legal advice, assuming nothing can be done. In actual fact, more often than not, there is a legal remedy even if an employer has apparently ceased trading. Therefore, it is unsafe to assume that no legal action can be taken.
Do I need to see a solicitor immediately?
Depending on the treatment you are receiving and how you are feeling, it is wise to take legal advice as soon as you possibly can as there are time limits for all personal injury claims. As a general rule, a court action (‘proceedings’) must be started within 3 years of the diagnosis being confirmed, or from the time you first suspect that you are suffering from an asbestos-related disease.
Although the Court has discretion to set aside the 3 year limitation period (as it is called) technically, your claim would be time-barred if you did not issue proceedings within the 3 years. In any event, given the often poor prognosis, most people would not want to delay taking legal action. Most claims are now expedited (fast-tracked) through the courts as there is a special protocol in place for dealing with mesothelioma claims.
3. Can I go to any solicitor?
Most solicitors now tend to specialise; the days of the ‘general practitioner’ are numbered. Even so, regrettably, some solicitors who are not experienced in this particular field do take on mesothelioma claims and that can have unfortunate consequences, especially as most employers’ liability insurance companies (on the other side) instruct specialist firms to defend such claims. In that situation, it would not be a level playing field. Therefore, it is always sensible to seek out a solicitor who specialises in asbestos-related disease litigation.
Mesothelioma UK has a list of specialist solicitors; and members of the Forum of Asbestos Victims Support Groups – UK also have their own panel of solicitors. The Association of Personal Injury Lawyers (APIL) can give you details of accredited specialist solicitors in your area. Before instructing a lawyer, it is always worth asking her/him about their qualifications, experience and track record. How many asbestos disease cases have they successfully concluded within the last 5 years? Is the person who will deal with your case a qualified solicitor? What is their charging policy?
4. Will it cost me a lot of money?
It shouldn’t cost you any money to bring a claim if you are suffering from mesothelioma; you should be at no financial risk. Most (good) solicitors offer a free initial interview, even if a home visit is required, as is often the case. The solicitor should then discuss the various funding options at the outset, before any claim is started. The 3 main funding options are: Conditional Fee (“no win: no fee”) Agreement; Trades Union funding; and Legal Expenses Insurance.
If you are in a trades union/professional association, or have legal expenses (“before the event”) insurance cover, then you may not have anything to pay, subject to the terms of the union agreement or legal expenses insurance policy indemnity limit. If your solicitor is prepared to take the case on a “no win: no fee” basis, then you may be asked to pay a one-off insurance premium, which is recoverable in the event of a successful claim. However, the insurance cover will protect you against the risk of having to pay the other side’s costs in the event that you lose the case or the claim has to be discontinued, for whatever reason.
If you are successful, then the opposing party/insurance company will the claimant’s basic legal costs and also a ‘success fee’ (**) in addition. You should not have to make any contribution.
** This is the lawyer’s reward for taking the case on and facing the risk that s/he may not be paid anything if the case is lost.
5. I am in a Trade Union/professional association – can they help me?
Often yes. It is a legal requirement that all the various funding options should be explained to you at the outset and, if there is a possibility that your membership organisation may fund your case, then that option should be explored. However, many trades unions (for example) are not prepared to provide financial assistance if a person has ceased to be a member of that trades union, or if the relevant exposure (to asbestos) took place before they joined the union. Some former trades union members are therefore disenfranchised to that extent. However, you should not be placed at any disadvantage as a specialist solicitor should be prepared to investigate your case on a ‘no win: no fee’ basis or provide some free legal advice on the prospects of success.
6. Will I have to appear in Court?
Unlikely, as most personal injury claims are now settled either before court proceedings are commenced or before the final hearing (trial) is listed. A tiny percentage of claims are assessed by a judge at the trial stage. Therefore, the chances of you appearing in court are slim, but not impossible. Your solicitor and legal team will explain the court process to you and, if there is a prospect of you having to give evidence in court, then you will be well prepared and supported.
7. My relative died recently from mesothelioma – is it too late for me to take any legal action?
No, it is not too late as a claim can be brought by the personal representatives (executors or administrators) of your partner/relative’s estate. Compensation can be claimed for your relative’s pain and suffering (‘general damages’) and any financial losses which they suffered as a result of their illness, so it is certainly worth seeking legal advice. There may also be a claim by the surviving spouse/partner for bereavement damages and their reliance on the deceased person’s income and contribution to household maintenance and services.
8. My partner/relative has mesothelioma and is very ill and may not recover – can we delay seeing a solicitor?
Although it is extremely important to obtain a detailed witness statement from the person who is suffering from mesothelioma, that is not always possible if the sufferer is extremely ill when the link with asbestos/occupation is first made. If that is the case, the presence of a lawyer may be unwelcome. However, any handwritten notes or diary entries which may be relevant ought to be preserved, together with any work records (for example – deed of apprenticeship/indentures, etc). The family can often give important evidence even though it is ‘indirect’.
However, there is no real substitute for the direct evidence given by the mesothelioma sufferer him/herself. Their recollection of events is likely to be the most accurate. It’s also worth making a note of any former work colleagues who may be able to give evidence about the sufferer’s exposure to asbestos.
9. I have been told that I probably have mesothelioma and I have been exposed to asbestos in the past. Should I consult a solicitor even though the diagnosis isn’t 100% certain?
Mesothelioma can be a very difficult disease to diagnose accurately and, even though there may be a clinical diagnosis, the doctors can’t always be absolutely certain. Civil claims for damages (compensation) only have to be proved on the balance of probabilities, ie more likely than not, and therefore, if the medical evidence states that it is probable that you are suffering from mesothelioma, then you should see a solicitor who should still be able to investigate a claim for you.
Remember, the statutory limitation period starts at the time when someone has a reasonable suspicion that they are suffering from an asbestos-related illness, not necessarily from the time when a 100% diagnosis is made and so it’s better to take legal advice as soon as you possibly can and your solicitor can then advise on the appropriate steps to be taken.
10. My exposure to asbestos was a long time ago – what if my employer no longer exists?
The time lag (latency period) in asbestos disease cases can be a very long time, often several decades following the first exposure to asbestos. Mesothelioma strikes like a bolt out of the blue and the diagnosis can be 30-60+ years following exposure. Many employers have ceased trading over such a long period of time but companies can be brought back to life (restored to the register of companies) for litigation purposes if the employer’s liability insurer(s) for the relevant period(s) of employment can be traced or identified. The Employer’s Liability Tracing Office (ELTO) is often able to assist but most specialist solicitors have their own databases for these purposes, if companies have been sued previously. In any event, if a paymaster cannot be identified, a claim can be made to the Diffuse Mesothelioma Payments Scheme (DMPS) which your solicitor can make on your behalf. You may have to pay a modest amount from your compensation, if successful, as it is a scheme and a certain amount (£7000) is included with the tariff payments to cover legal costs.
11. Coroner’s inquests
Certain deaths have to be reported to HM Coroner by the doctor who signs the death certificate – deaths from mesothelioma are in this category as it is not regarded as a naturally occurring illness. When a death from mesothelioma is reported to the Coroner, s/he then decides if a post-mortem (autopsy) examination is necessary and whether or not to hold an Inquest in person (hearing). You may wish to have legal representation at an Inquest, if there is a possibility of a civil claim. In Scotland, the law is slightly different as the Procurator Fiscal is notified.