The proposition that a defendant or insurer liable for terminal illness should pay reasonable treatment costs which have a prospect of improving the victim’s length or quality of life would appear to be an unlikely source of controversy.  However, it is a testament to the enduring ability of mesothelioma claims to create forensic controversy that there is significant ongoing debate as to the best approach to a claim for immunotherapy costs.

The promising results of immunotherapy treatment have been a welcome success in the treatment of cancer and not just mesothelioma. It is likely that in the foreseeable future, additional immunotherapy treatments will be licensed on the NHS. In the meantime, the drugs are available on the private market but at a very considerable cost.

Innovative treatments in mesothelioma claims are not new, with claims for both chemotherapy and immunotherapy drugs at different points in time.  The reasonable requirement for proof of efficacy before acceptance by NICE inevitably creates a situation in which drugs are being used but not available on the NHS.  What perhaps has changed in recent months is that previously such claims were made in circumstances in which the victim was already undergoing private drug therapy or at least was being recommended for the same.  There has now developed an approach of advancing immunotherapy claims in seemingly every living mesothelioma claim, often with no concrete evidence of the likelihood of the treatment. Therefore the claim is being advanced on what is not unfairly described as a wholly speculative basis. This is against a background where claimants’ solicitors appear to be advertising the ability to pursue such claims on their websites which inevitably is putting pressure on all firms advising claimants to offer the same.  Medical reports are served simply describing the availability of such treatment and indicating that the claimant in question may ultimately be suitable for treatment.

Understandably, insurers have been reluctant to date to contest such a claim in court in particular given the emotive nature of the claim and the undoubted acceptance that if the claimant is suitable, with the treatment being recommended, then the cost of it will reasonably be paid by the defendant.  However, it is reasonable in terms of assessing how such claims should be managed to consider what likely order a court could make should a claim be contested at assessment of damages.  The following alternatives appear to be relevant:

  1. The court could make an order for immediate damages on the basis of the cost of future treatment. This would be on a contingent basis as reflected by the approach of Sir Robert Nelson in the case of XX v Whittington Hospitals[2017] EWHC 2318 (QB).  In that case, faced with a long list of possible future treatments for a claimant, Sir Robert Nelson considered in relation to each aspect of the treatment whether and to what extent the same would likely result in loss by way of expenditure to the claimant. In undertaking this exercise, the judge had regard to the availability of such treatment on the NHS. He took into account that if equivalent treatment were available on the NHS, the claimant would have been unlikely to elect to incur the cost of private treatment. This was essentially a contingent approach.  However, there appears to be a fundamental objection to such an approach in immunotherapy claims as now being presented which is that the prospect of the same is so speculative that it cannot form the basis of loss. This is evidenced by the fact that the court could not make any realistic assessment of the likelihood of the claimant requiring treatment or the cost of the same. The legal test which correlates ‘substantial’ with ‘capable of evaluation’ was succinctly stated by Lord Reid in Davies v Taylor [1974] A.C. 207at 212: “To my mind the issue and the sole issue is whether that chance or probability was substantial. If it was it must be evaluated. If it was a mere possibility it must be ignored. Many different words could be and have been used to indicate the dividing line. I can think of none better than “substantial,” on the one hand, or “speculative” on the other.” From a defendant’s perspective, assessment on a contingent basis would be very unsatisfactory as it would almost inevitably result, in many cases, in a significant over-compensation of the claimant.  It can be anticipated that in most cases of this nature the claimant will not in fact proceed to immunotherapy. The claimant may die before the treatment is considered. When the treatment is considered the claimant may not be in a fit state to receive it. The treatment may simply not be recommended in his case by a treating clinician.  Whilst the defendants would have good legal reasons for resisting an award, the risks in relation to the same are evident given the courts’ expected reluctance to undercompensate a claimant for life prolonging treatment.
  2. The court could be invited to make an order for the payment of damages by periodical payments. Such orders have been the subject of consent, but there is no indication that such an order has been made at a contested hearing. Considering the court’s powers to make an award for periodical payments, it is apparent that immunotherapy claims will not fit within the relevant framework. Periodical payments still involve an assessment of the relevant head of loss but provide an alternative by way of paying the damages through regular payments as opposed to on a ‘once and for all’ basis.  However, under the Damages Act 1996, the amount of the payments must be fixed, as must be the intervals of payment.  In the case of AA v CC (2013) EWHC 3679 (QB), the court confirmed that payments could not be made on the basis of uncertain dates.  Whilst variation of a periodical payment is possible, only one such application can be made. There are therefore good grounds for resisting any application for damages to be paid by way of periodical payments.  In reality, the orders which have been agreed to date are indemnities by another name.
  3. An indemnity in respect of future costs seems the most obvious and indeed attractive solution for all parties.It appears to be accepted that a court cannot in a personal injury action order an indemnity as a form of relief. However, it is not clear how and why this consensus has emerged. An indemnity is established as a remedy in the Chancery Division. With the Judicature Acts 1873 and 1875 fusing the courts of equity and law together, remedies that were formerly available in only one could now be pursued in any action. The basis upon which an indemnity cannot be awarded as a remedy in a personal injury action appears therefore to be simply that it has not been done so to date.[1]Despite the questionable consensus on the court’s inability to order an indemnity without consent, it is of course appropriate and indeed, in most cases, the best approach for a defendant to make an offer of an indemnity.  The issue here from a defendant’s perspective is to ensure that the terms of the indemnity reasonably protect the defendant’s interests, in particular in relation to the reasonableness of treatment.  The usual requirements would be for the claimant to be assessed as being fit for such treatment, that the same is assessed by an appropriate consultant as having at least some reasonable prospect of success, and that the progress of the treatment is subject to regular review.  Whilst claimants may be resistant to such terms being incorporated into an agreed indemnity, the same do reasonably reflect the legal entitlement to the cost of future treatment.  It does not appear there is at present any alternative market for immunotherapy drugs. There have however been examples in mesothelioma litigation of experimental treatments or surgery, in particular in the United States of America. Where no reasonable prospect of benefit from such treatment or surgery can be demonstrated, defendants have reasonably objected to paying for the same.
  4. If a reasonable indemnity can be agreed, then the rest of the action can be dealt with either by agreement as to all other heads or by the continuance of interim payments until the treatment has been ruled out or concluded. Given that practically all mesothelioma claims settle on quantum and given that there is economic advantage usually in settling with a living claimant, defendants would be best advised to proceed on the basis of an agreed award with an additional indemnity.

The question that can now be reasonably be asked is that if a defendant offers an indemnity but a claimant refuses to accept it, whether the defendant should seek to defend the claim in accordance with the position as set out above in relation to contingent damages and periodical payments.  Accepting that there is an element of risk in such an approach, if the indemnity is thought to be appropriate and consistent with the legal basis of assessment for future loss, then there would be clear advantage to defendants and insurers in establishing a position where a claimant would have to accept such an indemnity as opposed to proceeding to attempting to achieve some remedy through the court. The defendant’s arguments as to the inappropriateness of contingent damages and periodical payments would of course be much more attractive in the context of an offer of an apparently reasonable indemnity.  Indeed against this background, it could be argued that the claimant in fact suffers no prospect of future loss given the offer of indemnity.

In any event, it is clearly in the interests of all victims for a simple and common sense approach to be taken to this issue as opposed to introducing unnecessary complication which can only serve to increase legal costs and cause delay.

[1]As A. P. Herbert’s Lord Mildew astutely observed in ‘Doggett v. Port of London Authority’: “There is no precedent for anything until it is done for the first time.”