David Myall v (1) Ministry of Defence (2) Serco Ltd [2017] EWHC 1752 (QB)

The post below is by Aliyah Akram. It is about the case of David Myall v (1) Ministry of Defence (2) Serco Ltd [2017] EWHC 1752 (QB), in which the claimant’s request for a split trial to allow for the possibility of his being assessed for immunotherapy treatment was refused by Master Giddens in the absence of any medical evidence in support of such treatment. Mrs Justice May upheld the Master’s decision on appeal.

The recent case of Myall is a reminder to practitioners that although there is a sound legal basis for the recovery of the costs of immunotherapy treatment, care must be taken to ensure a sound evidential basis behind any such claim.

The claimant applied for a split trial to allow for the possibility of his being assessed for immunotherapy treatment.  The application appears to have been unsupported by any medical evidence and was made solely “on the strength of an unsupported assertion by the Claimant’s solicitor”.  It is not clear from the judgment how much time remained before the original trial, but it appears that there was insufficient time for the claimant to have undergone an assessment as to his suitability for immunotherapy treatment before trial.

The basic principle of restitutio in integrum or full compensation encompasses recovery of damages for expenses incurred, or to be incurred, by the victim as consequence of injury. In Jones v Royal Devon NHS Trust [2008] EWHC 2706 (QB) it was held that in relation to medical expenses the Court must “apply the touchstone of reasonableness and principles of remoteness and proportionality”.

Najib v John Laing [2011] EWHC 1016 (QB) shows just how far this may be stretched in practice. The court allowed a mesothelioma sufferer to recover the cost of “photodynamic therapy”.  There was no objective medical justification for this so-called treatment and counsel for the claimant, Harry Steinberg QC, had not contended otherwise. But there was some evidence from the treating clinician that it had been reasonable for the claimant (who was frightened of the side-effects of chemotherapy) to try it as a last resort. Accordingly, even though (a) the claimant did not contend that the treatment had any clinical value and (b) it had been wholly unsuccessful, it had not been unreasonable for this claimant to undertake this therapy, and so Nicola Davies J held the costs were recoverable in full.

In Myall, Mrs Justice May refused even to consider the application for a split trial because the claimant had failed to provide any medical evidence at all in support of such treatment. It remains to be seen whether the trial judge will be more sympathetic in allowing the claimant to bring his full claim.

Practitioners in mesothelioma cases need to give thought to gathering evidence in support of a potential immunotherapy claim as soon as they receive instructions. Such evidence, particularly at a case management level, need not be extensive but should highlight the potential suitability of a claimant for immunotherapy treatment and the possibility that it might prolong a claimant’s life expectancy.

The new wave of immunotherapy appears to be one of the most exciting developments in oncology in a generation. While it is easy to be swept up in this excitement surrounding immunotherapy – and to assume that the court will share this enthusiasm – the need for such treatment is not self-proving. The courts are highly likely to be sympathetic, but they need something to work with.


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