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Written on 17th June 2020 by

The recent decision of the Upper Tribunal in DP v Topmark Claims Management Ltd (CM) [2020] UKUT 0106 (AAC) has provided clarification to asbestos disease claimants on the limited scope of the Diffuse Mesothelioma Payment Scheme 2014. It also reinforces the need to ensure that court proceedings are issued within the three year limitation period in the event that there is a defendant against whom a civil claim can be brought. 

The facts of the case

The background to the case is one of real tragedy. The claimant’s wife worked in a residential care home. She was exposed to asbestos dust when work was carried out in the loft of the home which disturbed asbestos containing materials and led to her inhaling the deadly dust. She was diagnosed with mesothelioma on 4 April 2014 and sadly passed away on 11 September 2014, when she was only 37 years old. 

The claimant instructed solicitors. However, on 21 September 2016 (two years after the death), they advised that they felt the claim did not have sufficient prospects of success and they would have to cease acting. The claimant subsequently approached other solicitors, but they declined to act as, by this time, there was only six months until the expiry of the three year limitation deadline.

In the meantime, the claimant had applied for compensation under the Diffuse Mesothelioma Payment Scheme 2014 (the “DMPS”). This was refused in March 2017 on the grounds that the defendant employers were still in existence. One of the conditions of eligibility of the scheme is that there must be no viable defendant against whom a civil claim can be brought (such as where the defendant company is no longer in existence and the insurers cannot be traced). The claimant appealed this decision to the First – tier Tribunal, who rejected it in January 2018. 

The claimant then managed to find solicitors who were prepared to act for him. They issued proceedings against the defendant employer in August 2019 (almost two years after the expiry of the limitation period). The defendant employer indicated that they would raise limitation as a Defence. 

The claimant also appealed the DMPS decision to the Upper Tribunal. 

The Upper Tribunal had to decide whether the claimant was entitled to recover compensation under the DMPS and, if so, on what basis.

What is the Diffuse Mesothelioma Payment Scheme 2014?

The DMPS was introduced by the Mesothelioma Act 2014, to provide a fund of last resort for mesothelioma claimants.

According to the scheme administrators, the aim of the scheme is as follows:

This scheme is designed to compensate people with Diffuse Mesothelioma who, either negligently or in breach of statutory duty, were exposed to asbestos by their employers, and who are unable to bring a claim for compensation against that employer or that employer's Employers' Liability insurer.

Section 3(c) of the Mesothelioma Act 2014 deals with the question of who is eligible to claim in circumstances where someone has been diagnosed with mesothelioma and has subsequently died. This states that a dependant of the deceased is eligible to claim under the scheme if:

no one is able to bring an action for damages in respect of the disease under the fatal accidents legislation, or on behalf of the estate of the person with the disease, against any employer of that person or any insurer with whom such an employer maintained employers’ liability insurance (because they cannot be found or no longer exist or for any other reason

In DP v Topmark Claims Management Ltd, the Upper Tribunal had to consider what constitutes ‘any other reason’ and whether or not a person whose claim is statute barred due to the expiry of the limitation deadline can be awarded compensation under the DMPS.

The meaning of ‘any other reason’

The Upper Tribunal considered the Explanatory Notes and Memorandum relating to the Mesothelioma Act 2014 in order to identify the intention of the legislation. They took the view that the intent was to address situations where there the employer is no longer a viable defendant (for example, when it is a company which has subsequently been dissolved) and their insurers cannot be traced:

it is also clear that all the reasons within section 3(1)(c) were intended to relate to the core problem identified in the Notes at paragraphs 11 and 12, in essence those cases where there is no tortfeasor or insurer capable of satisfying a judgment.

As such, they considered that ‘any other reason’ relates to the circumstances of the putative defendant, not the claimant. On this basis, they ruled that any problems with the civil claim against the deceased’s former employers (such as the claim being statute barred due to limitation) did not give rise to a valid DMPS application.

Can claimants claim under the Diffuse Mesothelioma Payment Scheme 2014 if their civil claim is statute barred due to limitation?

The Upper Tribunal also considered whether a claimant being statute barred due to the expiry of the limitation deadline falls within the definition of ‘any other reason’ for the purposes of section 3(1) of the Mesothelioma Act 2014. The upper tribunal held that this is emphatically not the case:

The Appellant’s suggested approach would mean that the 2014 Act operates to provide a different result from that delivered in the civil justice system. There is nothing in the Act which sanctions such an extreme and frankly bizarre outcome and it is contrary to the manifest intention of the Scheme as explained in the background materials.

They were also of the opinion that the fact that the limitation deadline has expired is not necessarily a bar to litigation. Proceedings can still be issued against the defendant employer (as the claimant had already done in this instance). While the defendant employer may seek to defend the claim on the basis that the limitation deadline has expired, the claimant is still able to argue that the Court can exercise their discretion under Section 33 of the Limitation Act 1980.

What does the decision mean for asbestos disease claimants?

The decision makes clear that a DMPS application is extremely unlikely to be successful under any circumstances if there is a viable paymaster. The claimant must have been unable to bring a claim against their former employer in the first place. If there is a former employer against whom the claimant can bring a claim, they cannot succeed in a DMPS application if it transpires that the prospects of such a claim succeeding are poor. This reiterates the fact that the intention of the scheme is to compensate people in circumstances where their former employers are insolvent and there is no traceable insurer. 

It also underlines the importance of ensuring that court proceedings are issued before the expiry of the limitation deadline. In asbestos disease cases, a claimant has three years from the date when they knew or should have known that they were suffering from a compensatable asbestos related disease (the “date of knowledge”). If death occurs within three years of the date of knowledge, the claimant has three years from the date of death in which to issue court proceedings. 

To read about cases where we have made successful DMPS applications, please see:

https://www.boyesturnerclaims.com/our-cases/successful-diffuse-mesothelioma-payment-scheme-application-former-shop-worker-following

https://www.boyesturnerclaims.com/our-cases/successful-dmps-application-within-3-months-mesothelioma-diagnosis

https://www.boyesturnerclaims.com/our-cases/%C2%A3179000-diffuse-mesothelioma-payment-scheme-telecoms-engineer

https://www.boyesturnerclaims.com/our-cases/compensation-secured-widow-after-successful-diffuse-mesothelioma-payment-scheme

https://www.boyesturnerclaims.com/our-cases/boyes-turner-secure-%C2%A3142000-compensation-diffuse-mesothelioma-payment-scheme-bricklayer

https://www.boyesturnerclaims.com/our-cases/%C2%A3160000-gross-recovered-diffuse-mesothelioma-payment-scheme

https://www.boyesturnerclaims.com/our-cases/former-joiner-receives-compensation-after-successful-diffuse-mesothelioma-payment-scheme

For more information about how the mesothelioma and asbestos claims team could help you after a diagnosis with an asbestos related disease, contact them by email on idclaims@boyesturner.com