Asbestos Justice is pleased to report the findings of Justice Laing in the High Court mesothelioma claim of Lloyd v Humphreys & Glasgow Limited, handed down on 20th March 2015.
The case has strikingly similar circumstances to a case we ran to a successful conclusion ourselves in that the family of the Claimant brought a mesothelioma claim against a Defendant who had not been pursued by the deceased during the course of pursuing his lifetime claim for another asbestos related condition.
In our own case, the deceased had received asbestos compensation during life from a number of defendants for pleural plaques. He subsequently went on to develop mesothelioma which caused his sad death. We brought a claim against an originally unsued Defendant company and their insurers, arguing that the deceased’s family still had a cause of action against this party for mesothelioma compensation.
The situation in Lloyd was similar in that the deceased successfully pursued a claim for asbestosis compensation against 2 employers through his originally instructed solicitors which settled on a full and final basis during 2011. Sadly, he went on to develop terminal mesothelioma which caused his death on 7th May 2012. His widow brought a claim against an unsued Defendant, Humphreys & Glasgow Limited which was insured with Excess.
Excess are an infamous insurer in the world of asbestos disease litigation having taken what Asbestos Justice sees as being a narrow point on the application of insurance policy coverage in the so called, “Trigger Litigation” cases. The insurer raised the argument that due to policy wording it was the insurer who was on risk at the time the mesothelioma actually developed which should be liable to pay any mesothelioma compensation.
This would have caused problems for hundreds of mesothelioma claimants and their families as most companies will have ceased trading long before the cancer began to develop. Such morphological changes are thought by medical experts to develop in sufferers around 10 years or so before the onset of symptoms. Therefore, tracing insurance for such a late period would prove very difficult if not impossible.
Thankfully, Excess’s arguments were defeated at Supreme Court level where it was decided that quite naturally it was the insurer who was on risk at the time of exposure to asbestos that would be responsible for paying mesothelioma compensation.
Due to Excess’s stance on the “Trigger Litigation” no claim was pursued by Mr Lloyd’s solicitors against their insured, Humphreys & Glasgow Limited.
The question for Justice Laing to decide was whether Mrs Lloyd’s claim for the mesothelioma compensation should be allowed to proceed or alternatively whether the claim was debarred from proceeding due to an alleged “abuse of process” as well as due to it being outside of the 3 year time period for bringing the claim, as argued by the Defendant.
In view of the important ramifications for other mesothelioma claims, the case was listed under a Category A listing in the High Court with a point of public importance being
“the treatment of claims for mesothelioma following settlement of an earlier claim for divisible asbestos-related disease against other tortfeasors on a full and final basis.”
The Defendant in Lloyd approached the claim from a “mass market” point of view, arguing that as a point of policy, such claims should not be allowed to proceed for the fear of the floodgates opening.
Arguments on behalf of the Claimant were made by the well respected, expert, asbestos disease barrister, Mr Simon Kilvington of Byrom Street Chambers in Manchester and following the 3 day Trial, heard at the end of February in 2015, the judge dismissed the Defendant’s arguments on abuse of process and limitation.
The judge held that Excess had refused to contribute to Mr Lloyd’s lifetime settlement for asbestosis compensation on the basis that they denied insurance coverage under the “Trigger” point. She also found that where the mesothelioma had developed shortly before the delayed Supreme Court decision in the “Trigger Litigation”, the later claim brought by Mrs Lloyd did not amount to oppressive conduct as alleged by the Defendant.
Paragraph 99 of the detailed judgment in Lloyd clearly sets out the judge’s conclusion where she states:-
“Inconvenient as it may be for the Defendant to be facing a bigger claim now than the claim it fended off while Trigger was pending, I do not consider that it has suffered any injustice. It took a calculated risk, and the gamble did not pay off. It presumably took that risk with its eyes open, because it was significantly commercially advantageous to do it.”
The Defendant also failed to convince the judge that Mrs Lloyd’s claim should end on grounds of limitation on the basis that the 3 year limitation period had expired in October 2011, with proceedings not being issued until 31st January 2014. The judge concluded that the Defendant and Excess had “brought this state of affairs on its own head”by making the “Trigger” arguments.
Counsel for the Defendant, David Platt QC, argued that the originally instructed solicitor’s conduct in failing to pursue the Defendant in Mr Lloyd’s asbestosis claim was negligent. This argument was also rejected by Justice Laing who stated:-
“I am not persuaded that if they (the solicitors) had remembered that they had identified Excess as the Defendant’s insurer, that would have made any difference.
I do not consider, on the balance of probabilities, that Excess would have agreed, had they been approached, to a limitation amnesty, or to the entry of judgement against the Defendant…At that stage, Excess were taking an aggressive approach to such cases and do not seem to have been willing to concede anything.”
In allowing the claim to continue, the judge did take into account the fact that Mrs Lloyd had an arguable case on liability and that a claim in negligence against Mr Lloyd’s former solicitors would not be straightforward.
This is a clear example of a Defendant insurer in the most serious of asbestos disease case falling on its own sword and the decision is welcomed by Asbestos Justice, mesothelioma sufferers and their families.