A technical knock-out

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Master Whitaker has gained wide support from both his legal peers and insurers for his progressive use of technology to resolve complex cases quickly. Focusing on live mesothelioma cases, he speaks to Lynn Rouse about his acclaimed fast-track system, as well as the need for a national database to improve insurer traceability going forward

If there is one profession routinely criticised for its stubborn reluctance to embrace modern technology to positive effect, it is the legal profession. Why pick up the telephone or fire off a quick email when you can carefully draft and post a letter that could take days to reach the recipient?

While such a sweeping stereotype is perhaps unfair, there is no doubt that the exchange of letters is a tradition the profession struggles to break from - its inevitable consequence: delay. Obviously frustrating for any claimant seeking resolution but for some injured victims it is simply unacceptable.

For example, with the terminal condition mesothelioma, by the time symptoms manifest themselves - typically decades after exposure to the asbestos that caused it - a victim's life expectancy is rarely more than a year after diagnosis, and often considerably shorter. But resolving such claims has historically been a lengthy and complex process due to the long-tail nature of the disease and the resultant difficulty in identifying culpable parties - something live claimants can ill-afford. So it is gratifying for all concerned that one name crops up more than any other as an example of best practice in the personal injury world when it comes to speed and efficiency of process. That name is Master Whitaker, Senior Master of the Supreme Court, in the Queen's Bench Division.

Back in December 2006, his fast-track system for dealing with asbestos-related cases, based on telephone and email exchange, was singled out for praise by Irwin Mitchell partner Colin Ettinger. "This has succeeded in speeding up cases dramatically, enabling compensation to reach those that are most deserving," said Mr Ettinger. "It is a real example of how best to use modern technology but, unfortunately, remains very much the exception." (Post, 14 December 2006, p26)

Past experience

Interestingly, Master Whitaker had no history of working in the personal injury field prior to his involvement with asbestos cases; when he was at the bar, professional negligence and landlord and tenant law were his specialisms. It was only when he applied for the job of being a Queen's Bench Master that he found himself tasked with handling mesothelioma claims "purely by accident".

"When I was appointed there were two main jobs going - one was in clinical negligence and the other to start a special list for asbestos-related cases, particularly mesothelioma," he explains. "At the time, claimant solicitors were concerned there was going to be a huge log-jam cleared by the Fairchild decision, releasing a vast number of cases in an area where, historically, defendants had tended to put in defences, which delayed the progress of a case, rather than accelerated it."

And so it was that, back in May 2002, Master Whitaker began work on this special list - primarily focused on dealing with live mesothelioma claims with the aim of obtaining a judgment and compensation award at a much earlier stage.

"After a few months it became obvious that the way to deal with these cases involved getting to grips with liability as quickly as possible - because most cases simply did not have a liability defence," he recalls. "It is true to say that at first the method of dealing with it - which is effectively by the court, myself, imposing a summary judgment hearing based on materials that are already being prepared for the case - didn't go down terribly well. But it didn't take long before defendant lawyers and insurers began to appreciate this was a much more efficient way of dealing with cases, that actually saved them money as a result."

So from its claimant-driven beginnings, Master Whitaker's fast-track scheme quickly won admiration from both sides of the litigation fence. "Strangely enough, over the years, defendant solicitors have become just as much advertisers of this list as claimants," he says.

What sets the workings of the list apart is that virtually everything is done by telephone and direct email contact. News of its creation spread swiftly by word of mouth with a strong and sustained rise in the number of cases issued, reaching the current rate of 600 a year, equating to approximately two thirds of the national issue. Of course, success can bring its own challenges, as Master Whitaker explains: "Originally this work took up about 20% of my time; by the time I was appointed to my new role it was taking up approximately 90% of it." This has necessitated the recruitment of a deputy to share the workload equally with, but Master Whitaker is keen to point out: "I fully intend to carry on doing the other half; I do not intend to give up this work in any way."

Asked how the list has succeeded in speeding up resolution, he replies: "You can best measure that by the length of time claims were taking in other parts of the country; it wouldn't be at all uncommon for a mesothelioma claim to take more than a year to resolve. In fact, some of the cases that have been transferred to me have already taken the best part of a year to get here.

"The fact is that most of the live claims come to the court at a time when the claimant has a very limited life expectancy - sometimes weeks, sometimes months, it's very seldom more than a year - so we can't afford to run at that speed. The answer is to take hold of them immediately a defence is filed - sometimes earlier if the claimant solicitor explains there is very limited life expectancy - and to have a case management conference to ensure all the evidence that could be got is gathered as quickly as possible. This is particularly true in live claims; if there is a possibility the claimant may die, we need to ensure their evidence is taken on deposition, recorded on DVD, something that was pioneered here."

The next step is to have a 'show cause' hearing at which the defendants point to any particular reason why they have a real prospect of success so that judgment should not be given. "General speaking, in 95% of cases liability is eliminated at that early stage, sometimes even at the first case conference."

With no backlog of cases, the four-month target for service is usually hit for live claims, although a few cases may take longer to resolve. The system is also self-teaching: "So we are seeing a higher rate of concession in respect of liability - because solicitors have learnt how the system works."

A success story

So if Master Whitaker's scheme is such a resounding success, why has it not been adopted nationwide? "Other courts in the country have tried to adopt a similar system with varying degrees of success - but it is more difficult for County Courts, because here we have complete control over our diaries and complete control over the listing of cases. Therefore, we can keep a much tighter grip on them."

However, all this could be about to change with the introduction of a new practice direction, which becomes effective in April. Master Whitaker explains how this came about. "The Civil Justice Council and the Master of the Rolls have been taking an interest in these cases because there is a strong driving force from both claimant and defendant camps to have a common procedure across the country, which mirrors the procedure here.

"So back in September I met with district judges and we thrashed out the whole procedure. That then went to the Civil Procedure Rules committee, on which I also sit, and the Master of the Rolls has approved it."

Despite being a calm, measured man who speaks softly in a carefully considered way, Master Whitaker is evidently proud of what his scheme has achieved for the injured parties that lie at the heart of it. But this is not to say he no longer encounters behaviour that frustrates him. He singles out one particular area where the message - no matter how many times he has delivered it, or how loudly - is still failing to be heard.

"Ever since 2002 one of the problems I have had, and I'm afraid am still encountering, is that the defendant side won't investigate liability until ultimately proceedings are issued and solicitors involved.

"The message I have put over time and again - particularly to employers, where the employer is an extant trading company and the normal rule applies - is that it is their duty as the defendant to investigate liability within the pre-action protocol period.

"It is no excuse to say, we've been busy finding our brokers and insurers. I do not accept that as an excuse for failure to investigate because these are cases where people are likely to die very soon."

As a result of this trend, he says it is not uncommon to reach the first case management conference, when solicitors have been appointed a few weeks before, only for them to ask for two or three months to investigate liability. He is categorical in his response: "I simply tell them, I'm terribly sorry - you've already had that time."

At the mesothelioma summit held last March, one widely supported proposal was ruled out by government - that of establishing a fund of last resort, to pay claims where no solvent employer or insurer could be traced. Traceability has long been a hot potato, with Martin Bare, president of the Association of Personal Injury Lawyers, calling the Association of British Insurers' tracing code "totally inadequate" last year when it was revealed the success rate was only 23% (Post, 5 April 2007, p14).

Master Whitaker empathises with the high feelings that surround this issue, commenting: "The problem we have got is that employers' liability insurance was not compulsory until 1972 and, even when it became so, it was not a requirement to register policies. Consequently it can be virtually impossible to trace the relevant insurers - although I feel the ABI is to be credited for its very sensible guidelines that deal with multiple defendants, intended to try and cover the void periods when no insurer can be found."

What we really need, he says, is a national database of employers' insurers. "Clearly this would be helpful going forward if any other long tail claim for injury to an employee ever surfaced." He certainly feels this is an issue easily addressed. "The difficulties over tracing insurers for individual employees should be to able to obviated. There needs to some record that matches national insurance data to EL policies. It could be a simple matter of punching the NI number of the individual claimant/victim into the database and up pop all the EL insurers they have ever been covered by in their working life."

Master Whitaker then turns his attention to the imminent EL policy trigger litigation, set to go to trial later this year (see pages 30 and 31). The lead cases are all established and being actively managed by Mr Justice Burton. The aim is to resolve whether EL policies should be triggered on a causation basis - relating to the asbestos exposure - even if the policy wording uses phrases such as 'injuries sustained', which were deemed in the public liability case of Bolton to refer to a much later date, when cell mutation is believed to first occur.

Judgment call

So what will happen after this litigation process is completed? "That depends very much on how the parties view the judgment. Obviously whichever way it goes there will be substantial possibility of an appeal to the Court of Appeal. But I think most people hope this will be settled at first instance because the disruption to compensation for victims is quite severe. In many cases live victims are dying without receiving compensation because the claim against the insurer is effectively being stayed until the outcome.

"What I hope we will avoid is another Fairchild type three year delay as we crawl through the courts. But we will have to see."

The problem is, if the trigger is deemed to be later rather than earlier, there won't always be an EL insurer because the employer itself won't have been in existence by then. "In a huge number of cases, there is no employer in existence by the time you get to the late 80s or 90s. It is difficult to say what percentage of cases would effectively end up with no compensation as a result but I would be surprised if it was less than 50%."

He goes further to explain the seriousness of the situation in which claimants could find themselves. "It is not a happy situation; it would put those victims in a worse situation than many of the victims would have been had section three of the Compensation Act 2006 not been passed; victims were set to lose chunks of compensation (after Barker) because individual contributions might not have been found or been able to be enforced. In this situation, even if EL insurance would have responded at a later trigger date, if the employer no longer exists, the claimant will get nothing." However, he chooses to reserve his last remarks for something altogether more positive.

"Tribute should be paid to claimant and defendant lawyers in this particular area. The extent of cross relations established is tremendous with a very strong will on both sides to deal with these cases as efficiently as possible and bring them to settlement. Given what the situation was like when I started five years ago, this is a tremendous achievement."

The evidence of collaborative working is tangible, he explains: "I have noticed every year there are less and less cases on which I have to make a decision in 'show cause' procedure. It is becoming rarer because people are taking sensible, realistic views; they are preparing better and beginning to heed the message that proper investigation has to be undertaken. Insurers also want to settle cases as quickly as they can; they don't want protracted litigation and are showing an enormous willingness to take a pragmatic view."

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