Civil Compensation

 

When you are told, or become aware that you have an asbestos related condition, you will normally have a period of 3 years from that date in which to start a court action for compensation.

 

scot flagScotland

 

Please note: If you have been diagnosed with pleural plaquesa claim for compensation must be brought within 3 years of the date you first became aware that you had pleural plaques.

As the law stands in Scotland, if a claim is not brought within 3 years, you will be time-barred from bringing a pleural plaques claim and any future asbestos related claims, even if you are diagnosed with a more serious asbestos related disease.

Any employer who can be shown to have materially contributed to your asbestos related condition and who acted negligently may be liable to pay damages. Even if the employer has ceased trading, action can still be taken if an employers liability insurers can be traced.

In Scotland, a successful civil claim for mesothelioma, on average, is over £150,000 in damages

If you have “immediate family”  those relatives may be entitled to receive compensation through the civil courts, as established in the Damages Scotland Act 2011

 

Definition of Immediate family (Scotland)

  • Spouse, civil partner or living with the deceased as if married
  • Parent, child or person who accepted the deceased as a child or was accepted by the deceased as a child
  • Brother, sister or brought up in same household and accepted as a child of the family
  • Grandparent, grandchild or accepted as such

 

Immediate family are entitled to damages for:

  • Distress and anxiety endured by the relative in contemplation of the suffering of the deceased before death
  • Grief and sorrow of the relative caused by the deceased’s death
  • The loss of such non patrimonial benefit as the relative might have been expected to derive from the deceased’s society and guidance if he/she had not died

average compensation awarded in the UK for mesothelioma ranged from £137,000 to £153,531;

average legal costs ranged from £22,000 to £28,407. Study into average civil compensation in mesothelioma cases, January 2014

 

scot flag

Scotland – Funding your claim 

 

You can’t get legal aid (public funding) to help you pay for most personal injury cases. An action could be privately funded or carried out on a speculative or “No win, no fee” basis.

The solicitor should advise you on costs before you agree to hire them. They shouldn’t charge you for your first meeting to discuss the matter.

You should ask them questions such as:

• How long will the case take?
• Will the solicitor charge a ‘success’ fee.  If so, how much will this be?

• Are they able to offer further advice on issues such as Power of Attorney, Making a Will, Probate etc?
• Do they understand the interaction between civil/personal injury payments and government compensation schemes?

• Do they have extensive knowledge and experience in pursuing claims for dependants– rights of relatives to damages etc.?
• Do they have a proven track record in dealing with Police; Procurator Fiscal; Medical Profession?

 

Using ‘no win, no fee’ deals

 

You’ll normally have to hire a solicitor using a ‘no win, no fee’ agreement. This means you will only be liable to pay the solicitor’s fee if you win the case.

You may still have to pay for some other costs, such as:

• fees to pay for experts
• court fees
• travelling expenses

If you win, you’ll have to pay your solicitor’s fees and other costs, but you should be able to get most, if not all, of these costs paid by the other side. The solicitor may also charge a fee for winning the case.

 

If you lose, you will have to pay for:

 

• the other side’s legal costs
• other expenses and charges, such as fees for witnesses

You may wish to take out insurance against paying extra legal costs. A solicitor will advise you about this.

Please contact us for further information on personal injury claims in Scotland. You can also access further information on pursuing a personal injury claim from GOV.UK

 

eng & wales

England & Wales – Funding your claim

 

In England and Wales, legal aid was abolished for personal injury claims in 2000.  Since then Conditional Fee Agreements (the official name for ‘no win no fee’) has been the standard way to fund personal injury cases.

The UK government recently introduced major reforms to the funding of personal injury claims contained within the Legal Aid, Sentencing and Punishment of Offenders Act and the Conditional Fee Agreements Order 2013 New rules on conditional fee agreements (CFA’s) came into force in April 2013.

Those who now enter into a CFA will have to pay their solicitor’s success fee and any after-the-event (ATE) premium from their damages.  However, as CAA revealed in our News on 24 April 2012, the BBC had reported that those who suffer from mesothelioma were to be exempted pending a Ministry of Justice Review of Mesothelioma Claims.  

 

Vector newspaper iconUpdate: 1.8.2014: Ministry of Justice review: Government accused of ‘Secret Deal’ with insurers

Update: 2.10.2014: BBC News: Government plans to deduct legal fees from the damages paid to people dying from asbestos exposure are unlawful, the High Court has ruled

Update:  8.12.2014:  Law Gazette: Government kicks asbestos review into long grass

Update 6.7.2015: Litigation Futures: Ministry of Justice: “Not our intention that mesothelioma victims should use state compensation to fund court fees”

You can access more information on no win, no fee claims in England & Wales from The Law Society who have published specific guidance on CFA’S.

 

Compensation Recovery

 

It’s not you who has to pay back any benefits or compensation to the DWP, it is the person or organisation who you have settled your claim against.

 

CAA receives many enquiries regarding the potential issue of benefit and compensation recovery from a successful claim for civil damages/personal injury.

The key thing to remember is that it is not you who has to pay back any benefits or compensation to the DWP, it is the person or organisation who you have settled your claim against.

However, …”the person or organisation who pays your compensation may in certain circumstances, reduce the amount they pay to account for any monies they are required to pay to the DWP” Further guidance on this issue is available from the DWP

 

Posthumous Claims for Compensation/Benefit

 

It may be possible to pursue a case even where the sufferer has died. This is known as a posthumous claim. A post mortem may be required when someone dies and it is thought that they may have been suffering from an asbestos related disease. The person responsible for dealing with this is the Procurator Fiscal in Scotland and the Coroner in England & Wales.

More information on the role of the Procurator Fiscal and Coroner

 

Making a will

 

A will sets out who is to benefit from your property and possessions (your estate) after your death. There are many good reasons to make a will

 

When seeking advice from a solicitor regarding a civil claim, it is advisable to discuss making a will if you have not already done so. Even if you are not suffering from a terminal condition it is still a good idea to make a will.  By making a will you can decide what happens to your property and possessions after your death.

Although you do not have to make one by law, it is the best way to make sure your estate is passed on to family and friends exactly as you wish. If you die without a will, your assets may be distributed according to the law rather than your wishes.

 

Why it’s important to make a will

 

A will sets out who is to benefit from your property and possessions (your estate) after your death. There are many good reasons to make a will

• you can decide how your assets are shared – if you don’t have a will, the law says who gets what
• if you’re an unmarried couple (whether or not it’s a same-sex relationship), you can make sure your partner is provided for
• if you’re divorced, you can decide whether to leave anything to your former partner
• you can make sure you don’t pay more Inheritance Tax than necessary
• If you die, and have  have an outstanding claim for government compensation, it helps make sure the compensation due to your dependants can be distributed correctly and without any unnecessary delays or paperwork

 More information on making a will from GOV.UK (United Kingdom)

pdf icon Study into average civil compensation in mesothelioma cases, January 2014

Contains public sector information licensed under the Open Government Licence v3.0.

Last reviewed: March 2017