In the world of industrial disease claims, defendants and insurers are routinely faced with the challenge of starting from a reactive position to a claim because of practical difficulties such as:
- Incomplete or no insurance
- Confusing corporate histories and liabilities
- Few historical records
- Each time a first claim is notified against a particular entity, the prudent defendant will be considering whether other similar claims might follow and what forward-planning might be required
In addition, defendants must deal sensitively with the expectations of elderly claimants or bereaved families, especially in living mesothelioma cases. There is a difficult balancing exercise between progressing meritorious claims and maintaining legitimate defences where early investigations flag up discrepancies.
From a defendant’s perspective, an overall strategy brings consistency to these various challenges and speeds up claims processing for all concerned. This is typically made up of different elements and may include some of the following:
Think bigger
Each claim can potentially support a much broader corporate and insurance archaeology exercise. Researching the historic corporate structure or business activities of a defendant entity can provide valuable information to use in the defence of other claims or reveal potential co-defendants.
It's good to share
If the defendant's own archives or public materials are inadequate, then it is always worth considering whether other prospective parties to the same claim may have relevant information. A good example is where the defendant historically collaborated with other entities, such as a consortium or joint venture arrangement.
Be procedurally inventive (1): pre-action disclosure is not just for claimants!
If the claimant or a prospective co-defendant will not volunteer their documents then in some cases the defendant might be able to make a pre-action disclosure application to secure relevant information and determine whether a particular liability for a claim should be defended, shared, or even transferred, or at what level settlement should be attempted. We can advise on a case by case basis.
Spot recurring issues
Storing and cataloguing information gained from claims is vital to enable the claims handler to predict whether that company will face other claims and to start establishing common defences and claims handling procedures.
Keep a good archive
It is also important to preserve the evidence (especially if fortunate enough to locate witnesses and obtain statements) because, not surprisingly, documents and people surrounding employment which may have occurred 40 or 50 years ago are quite rare. It sounds obvious, but it is hugely beneficial to store such information in a central archive so that, when claims arrive, a response can be coordinated at short notice.
Learn from the past
In terms of long term strategy, having an accurate database of claims, their outcomes and evidence also provides the foundation for any forecasting exercise, which is crucial for reserving by insurers or self-budgeting by uninsured corporates.
Be procedurally inventive (2): the protocol works both ways
Most claimant representatives acknowledge the mutual interest in sharing information to accelerate resolution of the claim. In cases where cooperation has not been forthcoming and informal approaches have failed to break the deadlock, the Pre-Action Protocol for Disease and Illness Claims may help. This regulates the behaviour of both parties and can be as useful for defendants as claimants. The obligations on claimants include the provision of a schedule of loss "as soon as practicable", voluntary disclosure of expert reports if liability is admitted, and a pre-action "stocktake" before issuing proceedings only as a last resort.
In our experience, individual claims should not be viewed in isolation and, on the contrary, can usefully contribute to a defendant's overall strategy for the effective management of future claims.