‘History demonstrates that mesothelioma claims uniquely present particular issues which require careful attention. The nature of the claims throw up tensions unusual in many other types of claim. In cases of living victims, the Asbestos List requires such cases to progress to trial expeditiously, where possible. The same consideration, to facilitate recovery of damages during a Claimant’s lifetime, also lends itself to early settlement, at a time when the damages may still be utilised in the time left. Sometimes this means that cases are settled whilst a Claimant is still undergoing treatment for the cancer. In recent years, immunotherapy treatment has shown greater efficacy at holding the cancer at bay for a period of time. Thus, cases are often settled, in living claims, by adopting a construction to the settlement which allows for the cost of ongoing immunotherapy to be met by a Defendant insurer pursuant to mechanisms for payment, such as the recommendation of the treating oncologist, which allows treatment to proceed expeditiously. It is not uncommon in such settlements for the Defendant to reserve a right to return to court if it wishes to challenge the reasonableness of the treatment or its cost at a particular point (although in my experience such challenges are very rare). Thus, cases often are settled at a point where the full amount of damages which an insurer will have to meet is not yet entirely known. A settlement agreement or judgment may make awards in relation to calculable heads of damage but leave the cost of immunotherapy outstanding to be dealt with under the mechanism of the agreement or order.’
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Ropewalk Chambers, 27th May 2025
Source: ropewalk.co.uk
