Department for Constitutional Affair - Focussing judicial resources appropriately: The Right Judge for the Right Case
Response by Thompsons Solicitors - January 2006
Thompsons is the UK's most experienced trade union and personal injury law firm. It has a network of offices across the UK, including the separate legal jurisdictions of Scotland and Northern Ireland.
Thompsons only acts for the victims of injury, never for employers or insurance companies. The vast majority of personal injury cases pursued by Thompsons are injury claims on behalf of trade union members. At any one time the firm will be running 70,000 claims.
As well as acting for the trade unions, Thompsons works with a number of asbestos support groups and groups which advise and support the victims of serious injury, including Headway.
Thompsons has particular specialism in asbestos-related disease on behalf of claimants, and represents more mesothelioma sufferers than any other firm. Thompsons also has a specialist serious injury unit, representing accident victims with high value personal injury claims. Thompsons handles complex occupational disease claims including leading cases in passive smoking, occupational stress, chemical allergy and poisoning, upper limb disorder, vibration white finger and other complex frontline occupational disease cases.
The firm participates regularly in government consultations on legislation. It is not our intention in this response to deal with every question in the consultation document but rather to address those areas where the proposals are likely to have significant, adverse consequence for our clients.
1. Do you agree that the three proposed “High Court Features” are appropriate?
Thompsons does not agree that the three features are appropriate. Their effect will be to prevent cases being issued in the High Court unless they fulfil one of the three categories. This will exclude mesothelioma and other asbestos-related disease cases, which can currently be issued in the High Court, because they will not be classed as exceptional.
It will also exclude high value serious injury cases. This in spite of the fact that many of these cases are highly complex in terms of establishing liability.
Value is not on its own a useful determinate. Many of the most complex cases are often of relatively modest value. Many are not exceptional but are highly complex.
2. Do you agree that the categorisation model proposed would provide greater consistency, transparency and clarity in the allocation of work to be heard at High Court level?
No. The current position is already sufficiently clear. It is always open for cases to be transferred to a lower court, either by the High Court judge themselves, or on application by either of the parties.
The proposed model would lead to significant legal argument as to which category cases should be in Therefore, we do not consider that the proposal is of any significant benefit.
3. Do you have any comments on the indicative categorisation of work suggested?
We refer to the answer given above.
4. Do you agree that the certificate mechanism should be introduced for all civil work?
No. The effect of a certificate mechanism will be to exclude cases where it may not have been apparent early on that the case could or should be issued in the High Court. In complex personal injury and industrial disease cases, the impact, importance and significance of the case may not be immediately apparent. Such cases will not qualify under the “complexity” test, so there needs to be some element of flexibility to allow these to be issued in the High Court later on.
We note the commitment to allow re-consideration of the appropriate level of court at Case Management Conferences and other relevant interim hearings. Therefore we do not think that the certificate mechanism will be of any benefit, and indeed it will introduce another layer of bureaucracy which will slow cases down.
5. Do you agree that the relevant procedural judges (“gatekeepers”) should be the High Court Masters and, outside London, the District Judges, with oversight provided by the local Designated Civil Judge and, in turn, the Presiding Judge or Chancery Supervising Judge as appropriate?
No. In our experience the lack of specialism of judges at this level has resulted in inconsistency in practice. It is self-defeating to have these matters dealt with at this level. This proposal will invariably result in an increase in the number of appeals.
We consider this as a matter most efficiently dealt with at the highest level from the start of the case.
6. Do you agree with the proposed exceptions for specialist courts?
Exceptions for specialist courts are welcome because they speed up cases and reduce costs. This is already happening in mesothelioma and other asbestos related disease cases dealt with by the High Court.
Yet under the DCA’s proposals, these cases would be excluded from the High Court because they are recognised as a specialism.
Thompsons opposes any proposal that would remove mesothelioma and asbestos-related disease cases, and also any serious injury or industrial disease claim, from the High Court.
We note that the Lord Chancellor is considering extending the range of specialisms to clinical negligence. There is no proposal to include industrial disease or serious injury. We consider this to be a major flaw in the proposal.
It is vital that the High Court does not lose the specialism in mesothelioma and asbestos-related disease which it has already developed and which is having a significant impact on speeding up cases and reducing costs.
Mesothelioma cases in monetary terms will attract significantly less that £1m. Their value should not be the measure of whether they should be classed as a specialism or whether they are heard in the High Court. It is essential to the victims, their families and to society that these claims are heard in the High Court. Mesothelioma cases are always fatal.
How can a matter involving the death of an innocent person, killed by negligent exposure to asbestos, be less worthy of the best resources of the court system than a high value commercial dispute?
Master Whitaker has operated a specialist mesothelioma list in the Royal Courts of Justice (RCJ) for three years. As a Master of the High Court he can only deal with High Court cases. The system is fast and efficient. There is a timetable for completion of a case within four months for a claimant still alive, and within six months for a deceased claimant.
Interim payments of £40,000, which are vitally important to a mesothelioma sufferer and their family members to relieve financial hardship, are often ordered within a few weeks of the case being issued.
Costs are kept down by the rapid resolution of cases, which is mainly due to the expertise in mesothelioma and other asbestos disease cases accumulated over the past three years. Efficient use of email to avoid formal applications, and telephone for case management conferences has also reduced costs. This benefits both the claimant and defendant.
The majority of cases in this fast track system settle with most defendants entering no evidence in defence. The cases are then listed for disposal before the Master, but most settle before the disposal. So there is no call on High Court judge resources in the vast majority of cases.
If claimants are obliged to issue their cases in County Courts in and around London, it will slow them down and will prevent claimants in other parts of England using the London fast track system, as they currently do due to its reputation.
If the DCA’s proposals are adopted, the effect will also be to lose a system that speeds up living mesothelioma cases. In Manchester, a living case can be issued in the High Court, will be put before a High Court judge within a couple of weeks for an expedited trial application and will be listed for trial within 3 to 4 months. This means that the victim stands some chance of receiving their compensation before they die.
7. Do you agree that the Civil Procedure Rules should be amended to provide that Multi-Track cases of a value of up to £30,000 should be heard by a District Judge
No. Multi-track cases are complex and a District Judge, who has to deal with lots of different types of cases, does not have the specialist knowledge of complex disease and injury cases or of asbestos-related disease.
Head of Media
Great Russell Street
Tel: 020 7290 0025