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Written on 16th December 2021 by

In February 2021 Melloney Harbutt, Senior Associate Solicitor in Boyes Turner’s specialist mesothelioma and asbestos disease claims team, was instructed by Michael who had sadly been diagnosed with mesothelioma at the age of 89 years old.  He was supported by his daughter.

Michael had been exposed to asbestos whilst employed at the London College of Printing during the 1970s, 1980s and 1990s.

Michael had been employed as a lab technician and was regularly exposed to asbestos during the course of his employment.  He was provided with no protection and was never warned of the dangers of asbestos.

Throughout the entirety of his employment, he regularly handled asbestos tiles which were used as mats to protect the worktop.  They were stored in a rack and had to be slid in and out of the rack when needed.  He also handled wire gauzes which had an asbestos centre, used with the tripods for Bunsen burners.  He handled them regularly, setting them up for the students and tidying them away.  They were thrown in a drawer after use and became damaged over time causing the asbestos centre to break down.  He was exposed to asbestos as a result and from cleaning out the drawer they were stored in.

Further exposure to asbestos was caused from disturbance of asbestos lagged pipes and damage to asbestos ceiling tiles.  A section of asbestos ceiling tiles was also removed from a lift area and corridor, with the area not being sealed off or closed for access. 

In January 2019 Michael had investigations for a left sided pleural effusion but nothing was identified at the time.  He subsequently moved closer to his daughter and was then investigated for bowel problems in December 2020, which investigations revealed mesothelioma, confirmed in early February 2021.

Melloney immediately set about investigating the claim and initiating contact with the relevant defendant entity, whose solicitors took a month to acknowledge the claim.  This was a sign of how this legal claim would progress. 

Those solicitors failed to confirm a formal decision on liability within the required period, in breach of the relevant pre-action protocol.  Melloney therefore issued court proceedings to enable the claim to progress, having already obtained a supportive medical report which indicated that Michael’s life expectancy had been reduced by over four years as a result of his mesothelioma.

In the defendant’s formal defence the defendant’s solicitors admitted that they had negligently exposed Michael to asbestos but they denied that this was the cause of his mesothelioma, despite the supportive medical report.  The claim therefore progressed to a first court hearing, called a case management conference.

We were seeking judgment in full at the hearing and an interim payment for Michael but the defendant’s solicitors would not agree our proposals.  The hearing therefore went ahead and the Master (Judge) duly ordered what we had requested, providing a formal court order giving directions (a timetable) for the future conduct of the claim, based on our proposals, working towards an assessment of damages hearing ordered to take place in November 2021.  This date was on the cusp of Michael’s average residual life expectancy.

Melloney set about complying with the relevant directions and every step of the way the defendant’s solicitors requested an extension of time to comply with their directions, such requests were not agreed in the circumstances where Michael had a very limited life expectancy and any delay, no matter how short, was prejudicial to his claim. 

Back in June Melloney had made a formal offer to settle the claim in the gross sum of £175,000, to which the defendant’s solicitors had failed to respond.  Once the defendant had served their schedule of loss towards the end of September, Melloney continued to chase for offers from the defendant’s solicitors.  There was still no acceptance of our longstanding offer, which remained open for acceptance, and no offers in response.

Melloney therefore applied to the Court to expedite the assessment of damages hearing, all other directions having been complied with and with Michael’s health deteriorating.  The Court agreed and the hearing was re-listed to take place on 20 October 2021.  Melloney set about preparing for that hearing by preparing the court bundles, instructing the medical expert to attend and of course briefing Counsel to represent Michael at the hearing. 

The first offer that the defendant’s solicitors made was on 8 October, a figure some £27,000 less than the defendant’s pleaded schedule of loss from September and over 6 months since the defendant had first been notified of the claim.  That offer was rejected by Michael.  Our offer of £175,000 gross from June still remained on the table and we remained confident in that offer. 

Frantic negotiations then ensued, on the part of the defendant’s solicitors, resulting in the defendant finally accepting our offer from June just three working days before the assessment of damages hearing which was set for 20 October 2021

Unfortunately at the time of settlement, the certificate of deductible benefits had expired such that the parties were unable to calculate the net settlement value.  Melloney repeatedly requested that a further interim payment was made voluntarily by the defendant whilst the updated certificate was awaited, so that Michael could have the benefit of some of his compensation before he passed away.  The defendant’s solicitors only agreed to make such further interim payment once Melloney made a formal application to the Court for a further interim payment to be made to the Claimant.

Soon after the final certificate of deductible benefits was provided and we were able to calculate the next settlement, the final settlement sums were paid to Michael, albeit the final instalment was paid late. 

This case was an incredibly frustrating one, due to the conduct of the defendant’s solicitors, but Michael and his daughter were patient and understanding throughout the whole process and this resulted in a very successful outcome for him, albeit that it was a drawn out process to get there.

Given that our offer was accepted in October, this means that the claim was fully settled within eight months of instruction, with Court proceedings having been issued and only a couple of days before the assessment of damages hearing.  This case is an excellent example of how the court process in the specialist asbestos list works so well to expedite claims where the claimant has a limited life expectancy.

Melloney comments “it was a pleasure to have assisted Michael and to have concluded his claim in his lifetime, which was his wish. As he approaches his 90th birthday, I hope that the compensation has given him some comfort and peace of mind.  No doubt he is delighted to have been able to put the legal process behind him so that he can enjoy time with his family without that hanging over him.”

For more information about how the mesothelioma and asbestos disease claims team can help you or your loved ones after diagnosis of an asbestos related disease, please contact the team by email on idclaims@boyesturner.com or by phone on 0118 952 7199.