The group is unable to provide legal advice itself. However, we can point you in the right direction. With regards to civil claims the group has a list of solicitors that are experienced in the field of asbestos litigation. The group continually monitors the treatment of cases and victims themselves in order that we can provide the best upto date advice. The group has negotiated with these solicitors to provide an initial interview free of charge to discuss the possibility of a civil claim and answer any questions the victims might have such as financing. (Legal Aid, No Win No Fee, etc.)
Victims are placed under NO obligation to proceed with their claim at the initial interview.
Witnesses are a vital part of the claim. YOU must prove that you worked with the company and that you were exposed to asbestos dust. This could include statements from old workmates etc.
An experienced solicitor on asbestos litigation IS essential.
Going to a Lawyer
If you have an asbestos related condition you should consult a solicitor. Beware. Some solicitors are not experienced in this type of litigation. We can give you the name of several specialist solicitors.
If you are a member of a Trades Union get in touch with your full-time official, as there may be a Union Lawyer who can help you.
Once you have engaged a solicitor here are some pointers to bear in mind: -
Have they interviewed you face to face or just sent a questionnaire to fill in?
Has your solicitor told you how good your case is, what charges will be made and when, or is it a No win No fee case?
Will you have to pay an insurance premium for the case?
Will you get any money back if you win?
If medical opinion has been against your claim or is contradictory, has a further opinion been asked for?
Have all the latest medical techniques been used in arriving at a diagnosis?
Don’t assume the first offer is the last. Further offers may be double or triple the first one.
If you are dissatisfied with your solicitor at any point, tell them. If there is no improvement, change them, report them to the Lay Observer, or tell your Trade Union Legal Officer.
When you have accepted a settlement of your case you will be asked to sign a declaration. Any declaration of interim or provisional settlement should not be worded to prevent you from claiming compensation for any further injury or illness, which you may get.
How far has your case got?
Has a writ been issued and served by your solicitor against your previous employer(s) or insurers?
If the employer(s) no longer conduct business has the solicitor advised you of the 1979 Workers Compensation act?
Note: A claim can only be made under this act BEFORE a writ is served on any insurers of a defunct company.
Has a defence been filed?
Has the case been certified as ready for trial?
Is your case as strong as it can be or is any additional evidence required? Don’t wait until the morning of the court case to find this out. You could then feel bull dozed into taking a much lower out of court settlement.
Has any money been received from the insurers by your solicitors? If so, has it been placed on deposit (where it earns interest)?
Have you asked for an interim payment from any future settlement, or for provisional damages where you condition may get worse?
How are damages assessed?
Basically they are worked out by adding together totals under six headings:
Damages for pain and suffering and loss of amenity (e.g. in home life) and isolation
Financial loss up to date of settlement or trial (“special damages”) – mainly loss of wages, but also travel to hospital etc.
Future loss of wages
Loss of earning capacity – if out of work and unable to find a job because of illness
Cost of domestic help needed if severely disabled
Interest allowance on compensation from time writ is served, or losses start
Civil Claims-Claiming Compensation
How soon should I claim?
As soon as possible. The law lays down strict time limits. Legal proceedings must be commenced, i.e. the formal claim must be lodged at the Court, within 3 years of the date of diagnosis of the asbestos condition, or the date when you are advised that you are suffering an asbestos condition. Please bear in mind that your solicitor needs to investigate and prepare to lodge your claim at court.
Courts can sometimes extend the time limit, but they may refuse to do so.
How do I go about claiming?
At the Cheshire Asbestos Victims Support Group we keep in touch with reputable Lawyers who are experienced in asbestos claims. It is most important that a lawyer experienced in asbestos claims is instructed. They will have knowledge of many of the companies and their insurers; some have extensive databases of information. They will know the correct procedure to adopt and will be able to advise you properly. We can put you in touch with such a lawyer who will always arrange to see you on the basis of no charge. They will advise you whether you have a claim that can be pursued, about funding the claim and what happens next.
What happens next?
The Lawyer, when he sees you, will ask a number of questions relevant to your case. He/she will concentrate on:-
a) Your working history. He/she will take as much detail from you as possible setting out in date order the names of the employers you worked for, the job that you did with each of them and the dates you worked for them. He/she will ask you about your exposure to asbestos –e.g. whether you were mixing and applying asbestos yourself, whether you were ripping off asbestos yourself or whether you were exposed to asbestos from activities of other workmen close by, and so on.
Any information you can supply the Lawyer at this stage, e.g. any documents showing the dates of your various jobs, are extremely helpful. However, do not worry if you do not have documents, or if you cannot remember the exact dates at this stage. The Lawyer can obtain full details of your working history from 1961 onwards for example.
If you can supply the names and addresses of any old work colleagues who can confirm working conditions at the places where you were exposed to asbestos, this is obviously helpful.
b) Were the employers at fault?
Usually if an employer exposed you to asbestos they will have been at fault, but the Lawyer may ask you questions about the amount of asbestos exposure and also what precautions were taken by the employers. For example, did they provide proper respiratory protection. Martindale masks (flimsy gauze) did not offer any protection at all.
c) Can it be proved that you have an asbestos related condition?
The Lawyer will ask you who diagnosed your condition and what they have diagnosed. Again, do not worry if you do not have much detail. The Lawyer will obtain copies of your medical records and then, if appropriate, arrange to obtain a medical report from your Chest Specialist.
d) Have you brought your case on time?
(See point above about time limits)
What happens next? Part 2
If you have a case that can be pursued at Law the Lawyer will first wish to put in place a funding arrangement for your case.
If you seem to have a reasonable case the Lawyer will offer you a Conditional Fee Agreement (no win- no fee). This is set out in a document. The document is quite complicated, but the principle is very simple. If a Conditional Fee Agreement (CFA) is taken out by the Lawyer, you do not pay anything if the case is not successful, subject to the point mentioned below. If however your case is successful the Lawyer recovers his standard fees from the Defendants Insurers. In addition however the Lawyer obtains a further fee from the insurers, the “success fee”, to take account of the financial risks involved.
If the case is not successful, a liability to pay the defendants costs would arise. This is normally covered by an Insurance Policy. If, at the end of the case, you are successful, the lawyer can recover the cost of that insurance policy on your behalf.
When can I be asked to pay any costs?
The Lawyer may ask you to pay the cost of the Insurance Policy-mentioned above, but as indicated, you will get this back at the end of the case if you are successful.
As your case proceeds the Lawyers firm will be paying out sometimes quite substantial sums of money to obtain reports, e.g. Chest Specialists. The Lawyer will normally agree to fund the cost of obtaining the reports, and you do not have to pay for these at all. However, the Lawyer will usually charge you for interest on the cost of borrowing the money while your case has been proceeding. Alternatively, if you have the money yourself and are happy to fund these fees as the case progresses, you can do so if you wish, and you will get them back at the end of the case. If any other potential for paying Lawyers fees is likely to arise you should be advised specifically of this by the Lawyer.
Pursuing the claim
The Lawyer will carry out a number of enquiries and investigations. These will include:-
Obtaining all your hospital and General Practitioners records.
Obtaining your medical boarding papers.
Obtaining confirmation of your working history from the Inland Revenue.
Obtaining medical evidence from a Chest Physician.
Obtaining evidence from witnesses, if possible
Obtaining evidence from a consulting engineer.
The Lawyer will put forward written claims for damages on your behalf against the companies where you were exposed to asbestos.
Sometimes these companies have gone out of business. In those cases it may still be possible to pursue a claim for compensation against them or their insurers although the procedure can be much more time consuming. It may be necessary to restore the company to the Companies Register and sometimes it is necessary to make very extensive enquiries to try to trace who the Insurers were at the relevant time. Those enquiries are not always successful, but often are. However, if they are not successful and the insurers cannot be traced it will not be possible to pursue your case through the Courts.
Once the Lawyer is satisfied that you have a legal claim that will be successful at Court, if necessary, they will commence legal proceedings in the Courts. A Barrister will be instructed to draw up a formal document called “Particulars of Claim”. This sets out details of your case, including who you were employed by and the dates of your jobs where you were exposed to asbestos; it will set out all the legal allegations of negligence and breaches of legal requirements such as provisions of the Factories Acts etc. It will also set out details of your condition, attach the medical report and also a calculation of any losses or expenses you have incurred.
The defendants then have a number of weeks in which they are entitled to serve a Defence. Obviously what the Defence says will depend on the details of your case, but often Defendants will try and say that your case is out of time (see above), that you were not exposed to asbestos as you have said or that if you were they were not at fault.
A number of steps are then taken. These include:
Both sides have to exchange any relevant documents. In your case this might include any documents you still have relating to your past jobs, e.g. Contract of employment, Indentures, etc. The Defendants will have to disclose documents they have relating to their use of asbestos, provision of respiratory equipment such as masks etc.
The medical evidence has to be considered by the Court. The Defendants may wish to obtain their own medical report. If they do and the doctors do not agree with one another, the doctors are usually ordered by the Court to discuss the case between them and provide a report to the Court (rather than to the Lawyers) setting out the result of their discussions and any areas of agreement or disagreement between their views.
A consulting engineer may be instructed to give an opinion on technical matters, including what asbestos exposure probably occurred in their opinion, the extent of exposure, and the relevant legal requirements the employers should have followed at the dates in question. Sometimes, under the Civil Procedures Rules, a Consulting engineer will be instructed by both parties and will accordingly provide his report to both sides.
Witness statements have to be exchanged. It is important that the witness statements, including your statement, are consistent. In particular, it can be damaging to a case if there are inconsistencies between what you have said, e.g. to the Lawyer, to the engineer, to the doctors, etc. The Defendants Lawyers will look at the inconsistencies to try to undermine your case.
Victims with severe conditions will usually have their case dealt with by an award of lump sum compensation as a once and for all settlement. The compensation is for pain and suffering and disability, past and future. They will also receive an award for past and future financial losses, e.g. loss of wages or nursing care costs.
Mesothelioma is always dealt with by way of a final settlement.
In some cases a final settlement is not made. Instead an award of provisional damages is made. What this means is that some compensation is paid now but the victim can make a further claim in the future if their condition deteriorates or they develop other asbestos related conditions. This will often happen in pleural plaques cases where a small award is made, but on the basis that the victim can make a further claim in the future if appropriate.
Some cases do not get settled out of Court but go all the way to a full Court hearing.
What happens at Court
Who will be there?
You will. You may bring a relative or friend if you wish
Your Lawyer will
Any witnesses who support your case
Your Barrister (sometimes called “Counsel”) The Barrister wears a wig and a gown
Any expert witnesses for your side e.g. the doctor who examined you for your Lawyer and the engineer.
Any witnesses who the “other side” will ask to give evidence against your case.
The other side’s Solicitor & Barrister
Any expert witnesses for the other side
Court Usher or Clerk
The Lawyer will meet you at Court well before the hearing to discuss your case with you. They may also need to talk to other witnesses, to the other side and to the Court’s staff etc. After your meeting, there may be a delay. Do not be surprised if there is a period of waiting around. Try not to become frustrated by this.
Most trials follow the same order:
Your Barrister will tell the Judge what the case is about
Your Barrister will then “call” you to give evidence from the witness box on oath. Your Barrister will ask you questions to which you already know the answer. This is to allow you to tell the Judge what happened.
Try to address your answers to the Judge. The Judge may ask you some questions.
The Barrister for the other side will then ask you some questions. This is called “cross examination”.
Your Barrister may then ask you a few more questions to tidy up any “loose ends”. After that, you will have finished giving your evidence, and you may leave the witness box.
Your Barrister will then call any other witnesses that support your case, and the same process of questioning will take place, including cross examination by the other side’s Barrister.
If there are any experts they will then give their evidence in the same way.
The other side will then call their witnesses, and your Barrister may cross examine them.
When all the evidence has been given, both Barristers will sum up the case to the Judge.
The Judge may then take a break to think about the evidence, or they may give their decision (called a judgement) at once. It may seem to take the Judge a long time to give the Judgement. This is because they will talk about the evidence they have heard to satisfy everyone that they have understood the case.
If you have won your case, the Judge will tell you how much compensation you will receive.
Do’s and Don’ts
Be on time
Be polite in Court
Read your statement before you go into Court
Only answer the question asked
Speak clearly and slowly-address your answers to the Judge. If you do not understand or hear the question say so
Try to argue or be “clever” with the other side’s Barrister
Offer opinions-just answer the question and no more
Use technical language about your job-try to give your evidence in “plain English”
Lose your temper
Give long answers-keep it short
What happens if you die?
If you die before your case is concluded, your case can still continue.
If you die and you had been in receipt of a DSS Industrial Injuries Assessment your case will automatically be referred to the Coroner and there will be a post mortem examination and an inquest. The purpose of that is to investigate whether the death is industrially caused. If it is industrially caused this will enable the Lawyers to argue for more compensation for your family.
There is, however, often some delay. It normally takes several months before an inquest takes place.
To carry on with the case your next of kin will need the legal documents to do so. What this means is next of kin will have to take out Probate or Letters of Administration.
Everyone should make a will. We may be able to recommend to you Lawyers who can do this for you . For most people it is a very cheap process. If you have left a will taking out Probate is quick and easy.
If you have not left a Will the Lawyers will arrange for Letters of Administration to be taken out.
Keeping you informed
The legal process is a slow one. Cases are rarely concluded within a year of being referred to a Lawyer. Often they take two years, and sometimes longer. In cases that become complicated because of medical issues and disputes for example, they can go on for several years.
Remember however it is your case, and you should know what is happening at any time. Make sure the Lawyer contacts you on a regular basis and explains to you clearly what is happening and what the next steps in your case will be .
PANEL OF SPECIALIST ASBESTOS SOLICITORS
We have compiled a Panel of solicitors who have expertise in asbestos disease litigation because sufferers of asbestos diseases ask us if we can provide them with information about specialist solicitors.
The Panel solicitors make an annual charitable donation of £7,000 each, to the Cheshire Asbestos Victims Support Group, to support our work. The Panel of solicitors are completely independent of the Cheshire Asbestos Victims Support Group and they will always act in your best interests. Our relationship with the Panel of solicitors does not affect the advice they give you, which will always be impartial and confidential.
Although we have provided you with details of solicitors who we consider may be able to assist you, you are not bound by that recommendation and are free to use any solicitor of your choice.
We have already negotiated special terms for our clients and these will not be affected by the payment of the fee.
We comply with Rule 9 of the Solicitors Code of Conduct of the Solicitors Regulation Authority.