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Written on 8th June 2022 by Melloney Harbutt

Boyes Turner’s mesothelioma claims specialists have successfully defended an application by two employers’ liability insurers to strike out a living mesothelioma claim.

Our client in this case was a former factory worker who was diagnosed with mesothelioma in his late 60s. He had been exposed to asbestos during his twenties and thirties whilst employed by two companies working as a maintenance engineer at a paper mill. His former employers’ insurers accepted liability (responsibility) for his asbestos exposure and his mesothelioma. He had a reduced life expectancy as a result of his mesothelioma and he was keen to settle the claim within his lifetime to ensure future financial provision for his wife who suffers from dementia.

As with many mesothelioma claims arising from asbestos exposure from decades ago, by the time our client’s mesothelioma was diagnosed the companies which had employed him had stopped trading and were legally dissolved. As the companies had employers’ liability insurance in place at the time that our client worked for them, we issued court proceedings directly against the insurers which would make payment in any successful claim.  Although our client’s claim was against the companies which had exposed him to asbestos during his employment, since 2016, when the Third Parties (Rights Against Insurers) Act 2010 came into force, the law has allowed proceedings to be issued directly against the dissolved companies’ insurers. This shortcut was expected to significantly speed up the process of issuing such claims, bringing earlier compensation and peace of mind to claimants whose lifespan is severely limited by mesothelioma.

The two insurance companies applied to strike out the claim. They argued that the 2010 Act did not apply to this case because our client’s injury, even during the pre-diagnosis, symptomless, early stages of the development of his mesothelioma cancer, was ‘actionable damage’ which occurred before the 2010 Act came into force in 2016. They argued that our client’s claim was governed by the law which pre-dated the 2010 Act, which required the person making the claim to follow a time-consuming process to restore the defunct company to the Companies House register before issuing proceedings against the restored company, even though the company’s insurers would ultimately pay any compensation due under the claim.

The High Court Master dismissed the insurers’ attempt to strike out the claim, but did so on the basis that the threshold for striking out the claim had not been met.  This meant that we were able to proceed with our client’s case directly against the insurance companies, resulting in a swift settlement of his claim.

In giving judgment, the Master was not prepared to go further and say when the consequences of our client’s asbestos exposure began, or rule more generally on what constitutes ‘actionable damage’ in a mesothelioma claim.  Until further cases on this point are decided by the court, and clarify when the mesothelioma disease process becomes ‘actionable’,  uncertainty and disagreement will remain between mesothelioma victims and their former employers’ insurers in future claims. 

For more information about how the mesothelioma and asbestos disease claims team can help you or your loved ones after a diagnosis of an asbestos related disease, please contact us, free and confidentially, by email on or by telephone on 0118 952 7199.