Legal advice

I have been diagnosed with mesothelioma.
Should I see a solicitor?

Yes, if at all possible, as medical experts estimate that approximately 95% 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 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 to exist. 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 (or from the time you first suspect that you are suffering from an asbestos related disease).

Although the Court has a 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 poor prognosis, most people do not want to delay taking legal action. Since the civil justice system was reformed in 1999, claims do not tend to take as long as they did, but it is still possible to have a claim ‘expedited’, if the medical evidence suggests

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.

The Law Society (telephone number: 0870 606 2555), in London, has a list of specialist solicitors, as do various victims of asbestos support groups (for example OEDA and Clydeside Action on Asbestos). Before instructing a solicitor, it is always worth asking about his/her qualifications and track record. For example, are they a member of the Law Society’s Personal Injury Panel and/or the College of Personal Injury Law (CPIL). How many asbestos related disease cases have they successfully concluded within the last 3 years? Is the person you are dealing with a qualified solicitor?

Will it cost me a lot of money?

Although Legal Aid is now rarely available for personal injury claims, the 3 main funding options are:-

  • Conditional Fee (‘no win: no fee’) Agreement
  • Trades Union funding
  • Legal expenses insurance

As a consequence of changes introduced by the Access to Justice Act 2000, pursuing a personal injury compensation claim should not cost you a lot of money. 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 intimated.

If you are in a trades union/professional association, or have legal expenses insurance cover, then you may not have anything to pay, subject to the terms of the union agreement, or legal expenses insurance policy. If your solicitor is prepared to take the case on a ‘no win: no fee’ basis, then you may have 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 the claim is lost or discontinued (provided court proceedings have been started).

If you are successful, then the opposing party/insurance company will pay the claimant’s basic legal costs and also a ‘success fee’* in addition. Following the introduction of the new rules, relating to costs, claimants are now in a much better position than they were and you may not have to pay anything at all if the solicitor operates a ‘no cost to you’ policy. However, be aware that some firms/organisations offering ‘no cost’ policies/deals may not necessarily have the relevant expertise, as they mainly deal with ‘fast track’ (low value) personal injury claims. Industrial disease claims are complex and require skillful handling.

[* This is the lawyers reward for taking the case on and facing the possibility that he/she will not be paid anything at all if the case is lost]

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). A very small percentage of claims (about 1 %) 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 well supported.

I am in a Trades 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 legal aid/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. Many former trades union members are therefore disenfranchised to that extent.

However, with the advent of conditional fees, you should not be placed at any disadvantage, provided you can find a solicitor who is prepared to take on your case on a ‘no win: no fee’ basis.

My relative died recently with 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 executors/administrators of your partner’s/relative’s state.

Compensation can be claimed for your relative’s pain and suffering and any financial losses which they suffered as a result of their illness, so it is still 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.

My partner 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 is first made. If that is the case, then the presence of a solicitor 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 is also worth making a note of the names and addresses of any former work colleagues who may be able to give evidence about the sufferer’s exposure to asbestos.

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 is not 100% certain?

Mesothelioma is a notoriously difficult illness to diagnose accurately and even though there may be a clinical diagnosis, the doctors cannot always be 100% certain. Civil claims for damages (compensation) only have to be proved on the balance of probabilities (i.e. more likely than not) and therefore if the medical evidence states that it is likely that you are suffering from mesothelioma, then you should see a solicitor who may still be able to investigate a claim.

Remember that the limitation period starts at the time when someone has a reasonable suspicion that they are suffering from an asbestos related illness, not from the time when a 100% diagnosis is made and so, from that point of view, it is wise to take legal advice promptly and the solicitor should then advise on the appropriate steps to be taken.

Special note

Certain deaths have to be reported to the Coroner by the doctor who signs the death certificate – deaths from mesothelioma are in this category. When a death from mesothelioma is reported to the coroner, he then decides if a post-mortem examination is necessary and whether or not to hold an inquest. Organs may be retained for detailed examination. 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.