North of the border: Putting plaques into practice
Pleural plaques are, of course, compensable in Scotland once again, says Toni Ashby.
A framework agreement has been finalised between the main pursuer (claimant) firms and the big five insurers, with many smaller insurers and organisations also entering into the spirit of the agreement with a view to resolving the backlog of cases as swiftly as possible.
In August the Lord President of the Court of Session, Scotland's most senior judge, issued his Practice Direction setting out the manner in which the court actions will be progressed.
In short, existing actions will remain sisted (stayed), and new actions will be automatically sisted; ‘pursuer's packs' will be delivered to the defender containing an employment history, an explanation of the alleged exposure with the defender in question but also for the pursuer's full employment history, plus a copy of their up-to-date medical records, with the court advised of the date of delivery.
The defender will then confirm within eight weeks whether or not they propose to settle; if settlement is elected the parties have a further four weeks to agree settlement.
If there is a failure to respond to the pursuer's pack, or an indication that the case is not one for settlement, the pursuer can apply for recall of the sist and the case will go before a judge, Lady Clark of Calton, who will thereafter manage the action towards efficient disposal.
Further, test cases may be identified and expedited if necessary to give guidance on generic issues, and Lady Clark will review the sisted actions at regular intervals - at least every six months - to avoid delays.
In the meantime, the backlog of cases is being worked through and it is hoped that, by this time next year, the vast majority of outstanding cases will be resolved.
The parties and the court are to be commended on the speed at which the Practice Direction has been put into place, given that consultation on the process started only around nine months ago.
It opens up the possibility of a similar approach for dealing with mesothelioma claims. With the mesothelioma preaction protocol awaiting primary legislation and the new insurer-funded scheme for untraced claims likely to take a couple of years to be fully implemented, the success of the Scottish framework for pleural plaques could pave the way for a simpler, more open and more efficient scheme for handling mesothelioma claims north of the border.
Toni Ashby
Associate, Simpson & Marwick
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