Mirfin v Secretary of State for Energy and Climate Change: Manchester County Court’s application of the Mesothelioma Claims Practice Direction to “non-mesothelioma” cases

mark_henley_ By Mark Henley

The Manchester County Court’s designated District Judges for Cancer Asbestos and Terminal Illness (“CAT”) cases apply from the outset the Mesothelioma Claims Practice Direction to all asbestos-related claims, irrespective of whether they involve mesothelioma: and this appeal judgment supports this practice.

Practice Direction 3D is designed to accelerate the progress of claims by sufferers from mesothelioma (often with very limited life expectancy), and establishes a specific procedure for such claims, including the requirement that, in order to avoid immediate judgment on liability, a defendant must show cause in writing what evidence and legal arguments gives a real prospect of success in defending liability (see paragraph 6 of the Practice Direction).

Although paragraph 1 of the Practice Direction specifically states that, “this Practice Direction applies to claims for compensation for mesothelioma”, the usual practice of Manchester County Court is to apply the Practice Direction to all asbestos-related claims, including claims involving only pleural thickening (in which there is no mesothelioma), by written directions on the District Judge first considering the file.

This practice is supported by the judgment of His Honour Judge Platts in the unreported case of Mirfin v Secretary of State for Energy and Climate Change, dated 5.9.12 (a transcript of which is here), in which an appeal against the application of the mesothelioma Practice Direction, by a defendant to a claim for pleural thickening, was dismissed, on the basis that despite the wording of the Practice Direction as applying to mesothelioma claims, it was within the discretion and case management powers of the District Judge to apply it.

Where applications are made to set aside or appeal such directions (applying the Practice Direction to pleural thickening cases), it is apparently the practice of Manchester County Court to make specific reference to this unreported case in its directions listing such applications (presumably as an incentive for defendants unaware of this case to reconsider whether to pursue such applications).

Defendants in the Manchester County Court should be aware of this practice, and need to be prepared from the outset either to have the necessary evidence to hand to show cause why they have a real prospect of success on liability, or to make the decision to concede it: as, even in cases involving only pleural thickening, they will not have the luxury of being able to keep liability “in play” for as long as possible for negotiating purposes, when they do not have the evidence to contest it.

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One comment

  1. […] Mark Henley write again on Manchester County Court’s Claims Practice Direction to non-mesothelioma cases. […]

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