Legal Questions & Answers

1/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 inthe workplace) and, more often than not, someone else (be it an employer,factory owner, or asbestos manufacturer) is to blame. Often people sayìbut, no one knew of the risks in those days; it was so long agoî, and putoff the idea of taking legal advice, assuming nothing can be done. Inactual fact, more often than not, there is a legal remedy, even if anemployer has apparently ceased to exist. Therefore, it is unsafe to assumethat no legal action can be taken.
2/Do I need to see a solicitor immediately?
Depending on the treatment you are receiving and how you are feeling, itis wise to take legal advice as soon as you possibly can as there are timelimits for all personal injury claims. As a general rule a court action(ìproceedingsî) must be started within 3 years of the diagnosis (or from thetime you first suspect that you are suffering from an asbestos relateddisease). Although the Court has a discretion to set aside the 3 yearìlimitation periodî (as it is called), technically your claim would be timebarred 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 legalaction. Since the civil justice system was reformed in 1999, claims do nottend to take as long as they did, but it is still possible to have a claimìexpeditedî, if the medical evidence suggests that someoneís lifeexpectancy is very limited.
3/Can I go to any solicitor?
Most solicitors now tend to specialise; the days of the ìgeneral practitionerîare numbered. Even so, regrettably, some solicitors who are notexperienced in this particular field do take on mesothelioma claims andthat can have unfortunate consequences, especially as most employersíliability insurance companies (on the other side) instruct specialist firms todefend 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 inThe Law Society (telephone number:asbestos related disease litigation. 0870 606 2555), in London, has a list of specialist solicitors, as do various victims of asbestos support groups (for example OEDAand ClydesideAction on Asbestos). Before instructing a solicitor, it is always worth askingabout his/her qualifications and track record. For example, are they amember of the Law Societyís Personal Injury Panel and/or the College ofPersonal Injury Law (CPIL). How many asbestos related disease caseshave they successfully concluded within the last 3 years? Is the personyou are dealing with a qualified solicitor?
4/Will it cost me a lot of money?
Although Legal Aid is now rarely available for personal injury claims, the 3main funding options are:ï Conditional Fee (ìno win: no feeî) Agreementï Trade Union fundingï Legal expenses insuranceAs a consequence of changes introduced by the Access to Justice Act2000, pursuing a personal injury compensation claim should not cost you alot of money. Most (good) solicitors offer a free initial interview, even if ahome visit is required (as is often the case). The solicitor should thendiscuss the various funding options at the outset, before any claim isintimated. If you are in a trade union/professional association, or havelegal expenses insurance cover, then you may not have anything to pay,subject to the terms of the union agreement, or legal expenses insurancepolicy. If your solicitor is prepared to take the case on a ìno win: no feeîbasis, then you may have to pay a one off insurance premium (which isrecoverable in the event of a successful claim). However, the insurancecover will protect you against the risk of having to pay the other sideíscosts in the event that the claim is lost or discontinued (provided courtproceedings have been started). If you are successful, then the opposingparty/insurance company will pay the claimantís basic legal costs and alsoa ìsuccess feeî* 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 aìno cost to youî policy. However, be aware that some firms/organisationsoffering ìno costî policies/deals may not necessarily have the relevantexpertise, as they mainly deal with ìfast trackî (low value) personal injuryclaims. Industrial disease claims are complex and require skilful handling.[*This is the lawyers reward for taking the case on and facing thepossibility that he/she will not be paid anything at all if the case is lost].
5/Will I have to appear in court?
Unlikely, as most personal injury claims are now settled, either before courtproceedings are commenced, or before the final hearing (trial). Averysmall percentage of claims (about 1%) are assessed by a judge (at thetrial stage). Therefore the chances of you appearing in court are slim, butnot impossible. Your solicitor and legal team will explain the court processto you and, if there is a prospect of you having to give evidence in court,then you will be well prepared and well supported.
6/I am in a Trade Union/professional association - can they help me?
Very often, yes. It is a legal requirement that all the various funding optionsshould be explained to you at the outset and, if there is a possibility thatyour membership organisation may fund your case, then that option shouldbe explored. However, many trade unions, for example, are not preparedto provide legal aid/financial assistance if a person has ceased to be amember of that trade union, or if the relevant exposure (to asbestos) tookplace before they joined the union. Many former trade union members aretherefore disenfranchised to that extent. However, with the advent ofconditional fees, you should not be placed at any disadvantage, providedyou can find a solicitor who is prepared to take on your case on a ìno win:no feeî basis.

7/My relative died recently with mesothelioma - is it too late for me totake any legal action?
No, it is not too late as a claim can be brought by theexecutors/administrators of your partnerís/relativeís estate. Compensationcan be claimed for your relativeís pain and suffering and any financiallosses which they suffered as a result of their illness, so it is still worthseeking legal advice. There may also be a claim by the survivingspouse/partner for bereavement damages and their reliance on thedeceased personís income and contribution to household maintenance.
8/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 statementfrom the person who is suffering from mesothelioma, that is not alwayspossible if the sufferer is extremely ill when the link with asbestos is firstmade. If that is the case, then the presence of a solicitor may beunwelcome. However, any handwritten notes or diary entries, which maybe relevant, ought to be preserved, together with any work records (forexample - deed of apprenticeship/indentures etc). The family can oftengive important evidence even though it is ìindirectî. However, there is noreal substitute for the direct evidence given by the mesothelioma sufferer,him/herself. Their recollection of events is likely to be the most accurate. Itis also worth making a note of the names and addresses of any formerwork colleagues who may be able to give evidence about the suffererísexposure to asbestos.
9/I have been told that I probably have mesothelioma and I have beenexposed to asbestos in the past. Should I see a solicitor even thoughthe diagnosis is not 100% certain?
Mesothelioma is a notoriously difficult illness to diagnose accurately andeven though there may be a clinical diagnosis, the doctors cannot alwaysbe 100% certain. Civil claims for damages (compensation) only have to beproved on the balance of probabilities (i.e. more likely than not) andtherefore if the medical evidence states that it is likely that you aresuffering from mesothelioma, then you should see a solicitor who may stillbe able to investigate a claim. Remember that the limitation period startsat the time when someone has a reasonable suspicion that they aresuffering 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 legaladvice promptly and the solicitor should then advise on the appropriatesteps to be taken.