5 October 2020 Edition 314 BC DISEASE NEWS A WEEKLY DISEASE UPDATE CONTENTS PAGE 2 Welcome Welcome PAGE 3 Cohabitees of Deceaseds to Qualify Welcome to this week’s edition of BC Disease News. for Fatal Accident Bereavement Award from 6 October In this issue, there is a common theme of imminent/anticipated legislative and procedural reform, affecting UK jurisdictions. We report that the list of eligible PAGE 4 applicants for ‘bereavement’ damages will lengthen within days, that new costs management and disclosure requirements are now in effect, that the Ministry of 122nd UPDATE TO PRACTICE DIRECTIONS: Defence (MoD) is getting ever closer to contesting personal injury claims brought Novel Precedent T in Force to Facilitate ‘Variation Costs’, as Expert Witnesses 6-years after the ‘date of knowledge’ and that the recoupment of NHS charges Accede to Risk of Civil Contempt (for treating ‘industrial diseases’) from negligent employers could be off the cards, Proceedings in Rephrased Statement due to lack of incentive. of Truth We also announce the details of two significant claimant firm acquisitions; firstly PAGE 6 of Heptonstalls Solicitors, by HH Legal and secondly of Jigsaw Law, by Slater and Gordon. Proposed Legislation, Which Strengthens the MoD’s Position on Limitation in Military PI Claims, Survives Our final article of this issue examines the existence of a relationship between 2nd Reading in Commons permanent hair dye application and cancer, in lieu of a recently published paper, sourced in the British Medical Journal. We investigate whether or not the Faculty of Advocates Remarks that the supposed risks faced by personal users and workers are valid. Scottish Bill, Devised to Recover the NHS’ Costs of Treating Industrial Disease Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen. Victims, Lacks ‘Incentivising Effect’ As always, warmest regards to all. PAGE 8 Sold Out of Administration, Heptonstalls Solicitors is Pipped to Penetrate List of SUBJECTS ‘Top 200 Law Firms’ Bereavement Damages and the Fatal Accidents Act 1976 – New Precedent T and Slater and Gordon Acquires PI New Expert Witness Statement of Truth – Limiting Section 33 Discretion Through Specialist, Jigsaw Law, for Undisclosed Operations (Service Personnel and Veterans) Bill – Faculty of Advocates’ Opinions Fee on Liability for NHS Charges (Treatment of Industrial Disease) Scotland Bill – HH Legal Acquires Heptonstalls Solicitors – Slater and Gordon Acquires Jigsaw Law – PAGE 9 BOHS Responds to Silica Report Commissioned by All Party Parliamentary Group BOHS Calls for Swifter Reaction to on Respiratory Health – MAGS Report on Healthcare Workers with Mesothelioma Report Which Dubbed Silica ‘The Next – Permanent Hair Dye Use and Cancer. Asbestos’ PAGE 10 Mesothelioma UK Study on Healthcare Workers Affected by Mesothelioma Sparks Broader Discussion on Asbestos Exposure Risks in Publicly Owned Buildings PAGE 12 Solidifying Tenuous Links Between Repeated Hair Dye Exposure and Cancer – What are the Personal and Professional Risks? P AGE | 2 Cohabitees of Deceaseds to Qualify for Fatal Accident Bereavement Award from 6 October Tomorrow, the Fatal Accidents Act 1976 (Remedial) Order 2020 will enter into force. Back in May of last year (here), we reported that the Ministry of Justice (MoJ) had published A proposal for a Remedial Order to amend the Fatal Accidents Act 1976. The purpose of the draft Remedial Order, contained within the proposal, was to adjust the restrictive wording of s.1A(2) of the Fatal Accidents Act 1976, which Sir Terence Etherton MR had deemed, in the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2) [2017] EWCA Civ 1916, to be incompatible with Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR), in accordance with s.4 of the Human Rights Act (HRA) 1998. The claimant, in Smith, was a cohabitee of the deceased and could not be defined as an eligible applicant for bereavement damages, under the existing s.1A(2) list. As such, the new statutory instrument was prepared to broaden s.1A(2) and enable ‘a claimant who cohabited with the deceased person for a period of at least two years immediately prior to the death’ to bring a claim for damages for ‘bereavement’. It was also foreseen that multiple cohabitants could qualify and under these circumstances, the award would be divided equally. N.B. The fixed compensatory sum for bereavement was increased to £15,120 for claims with a cause of action (i.e. date of death) accruing on or after 1 May 2020, by implementation of The Damages for Bereavement (Variation of Sum) (England and Wales) Order 2020 – we notified our readers of this in edition 306 of BC Disease News (here). For claims with pre-dating causes of action, the sum remains at £12,980. PAGE | 3 Of course, the fact that a definitive date of nd enforcement has now been officially set 122 UPDATE TO PRACTICE DIRECTIONS: Novel means that a wider review of the Precedent T in Force to Facilitate ‘Variation Costs’, ‘bereavement’ damages regime, which had been encouraged by the Joint as Expert Witnesses Accede to Risk of Civil Committee on Human Rights (in their 1st report and 2nd report, dated May 2019 and Contempt Proceedings in Rephrased Statement of May 2020, respectively), is not on the cards. Such reform would require primary Truth legislation. Since 1 October 2020, The Civil Procedure (Amendment No. 3) Rules 2020 have been Thus, from 6 October, the incompatibility enforced and with them, the new costs budgeting Precedent T. issue looming over the 1976 Act should be resolved and this is ultimately expected to Section 4 of the Statutory Instrument introduces a new CPR 3.15A: ‘Revision and variation of have a ‘small’ financial impact on paying costs budgets on account of significant developments (“variation costs”)’. parties. What is unclear, moving forwards, is whether the Government was right to declare that ‘the existing provisions on bereavement damages are discriminatory’, not least because they were ‘only ever intended to … [allow] … a token payment payable to a limited group of people’, or whether the Joint Committee was correct to warn that without extended reform, s.1A is ‘still vulnerable to human rights challenges’, e.g. from: • Cohabitees who were in a permanent’ and ‘loyal’ relationship lasting less than 2- years; • Non-cohabiting partners, who planned not to cohabit until they were married; • Cohabitees stricken by the grievance of divorce; • Fathers grieving the loss of children born outside of wedlock; • Parents grieving the loss of adult or married children; • Children grieving the loss of a parent; and • Siblings grieving the loss of a brother or sister. CPR 3.15A revises the old procedure covering updates to Precedent H costs budgets, in instances where there are ‘significant developments’ during the course of litigation. The former position on budget variation had been informed by the ruling of Chief Master Marsh, in the case of Sharp v Blank & Ors [2017] EWHC 3390 (Ch) and was articulated through an expired iteration of the Costs Management Practice Direction (PD) 3E, though precedent was known to have been inconsistently practiced:1 PAGE | 4 Having scrapped para 7.6, it is now mandatory and proper procedure to use Precedent T, in the event that ‘variation costs’ are accrued. This is made clear by CPR 3.15A and updated PD 3E wording (pasted from the Schedule to the 122nd Practice Direction Update): In 2019, the Association of Costs Lawyers (ACL) surveyed practitioners and found that 24% of respondents claimed to always stick to their budgets, while 21% admitted to always exceeding what is budgeted and 45% sometimes exceed budgeted costs. Meanwhile, 19% of costs lawyers have never seen an application to revise a budget.2 These statistics may dramatically change moving forwards, with ACL Chair, Claire Green, conceding that courts will almost certainly look less favourably on parties that go over budget without attempting to adhere to the reworded Rules and Practice Direction. Urging solicitors to ‘act conservatively at this stage and not take any risks’, Ms. Green highlighted that a series of court rulings will be necessary to define, for example, ‘significant developments’ and ‘promptly’, in the context of CPR 3.15A. Nonetheless, speaking at the Costs Law Reports Conference last month, Queen’s Bench Master Victoria McCloud gave some indication as to what these undefined terms might imply. The Master cautioned that ‘prompt’ would foreseeably be interpreted ‘strictly’ and without much room for excuse, while ‘significant developments’ would probably comprehend a scenario wherein a party only envisages exceeding their budget by a small amount. What is more, she signalled that courts would take an ‘unsympathetic’ view of a party approaching the court for a revision without first entering into discussions with their opponent. Transitioning from costs to expert witnesses, we now move on to discuss another important change comprised in the 122nd Practice Direction Update. The judiciary’s intensifying focus on claims fraud and dishonesty over the past couple of years has only served to bolster the reputation of civil contempt proceedings. As a consequence, the Master of the Rolls and the Lord Chancellor have consented to the Civil Procedure Rule Committee’s (CPRC) modification of PD 35 para 3.3, so that experts are now (since 1 October) forced to produce more extensive signed statements of truth that recognise the risk of contempt applications being made against them, should applicants accuse them of having been dishonest. PAGE | 5 Earlier this year, barrister and commentator, Gordon Exall, forewarned the significance of this extended expert declaration: ‘There is nothing to prevent a party from adopting this wording now. Most reports served at this time, in most civil proceedings, will not reach court until after October 1st.