This post was written by Spencer Turner. A link to the decision can be found here.
The Claimant was suffering from malignant mesothelioma and had a life expectancy of 3-6 months. The issue before the court was the mechanism by which the Claimant’s continuing costs of immunotherapy should be ordered. It was the Claimant’s position at the hearing that the cost of the immunotherapy should be funded by way of a Periodical Payments Order (‘PPO’) with provision for repayment to the Defendant of any surplus funds held on trust when the Claimant’s immunotherapy stopped. It was the Claimant’s position that the refunding of surplus monies provided fairness and certainty to the Defendant.
The Defendant accepted the Claimant’s entitlement to claim the costs of private immunotherapy but said that it was willing to pay for such further immunotherapy and chemotherapy as may be recommended by the Claimant’s treating oncologist, either by paying directly for the same or indemnifying the Claimant for the cost rather than by way of PPO.
The Introduction of the PPO
The court noted that the claim for a PPO had not been the subject of express pleading or claim. The Claimant had pleaded in the Schedule produced at trial that:
“It is anticipated that this [immunotherapy] will be funded through a float agreement with the Defendant and is therefore to be quantified at this stage”.
The Claimant’s counsel further submitted to the court that there had been numerous unrequited overtures from his instructing solicitors to invite the Defendant to settlement discussions. There had been a failure to obtain any agreement on the float agreement offer and, from the Claimant’s perspective, a general refusal by the Defendant to engage on future funding for immunotherapy. It is in that context that a PPO was sought at a late stage.
In relation to the PPO the Claimant drew the court’s attention to CPR 41.5(1) which provides that:
“(1) In a claim for damages for personal injury, each party in its statement of case may [emphasis added] state whether it considers periodical payments or a lump sum is the more appropriate form for all or part of an award of damages and where such statement is given must provide relevant particulars of the circumstances which are relied on”.
It was the Claimant’s submission that CPR 41.5(1) was permissive and did not place a mandatory requirement on an explicit pleading of a PPO to be necessary.
Counsel for the Claimant went on to describe the Defendant’s objections to the PPO as a ‘false naivety’, submitting that it was difficult to accept how any Defendant could not have contemplated the Claimant pursuing a PPO as one of their options in the context of this case.
The Defendant’s Position
The Defendant’s position was that the PPO suggested by the Claimant placed the discretion of the application of received funds completely in the hands of the Claimant and provided no provision for the Defendant to question or challenge any change in his treatment regime.
Master Thornett, in considering the Defendant’s submissions and the draft order provided by the Claimant said that:
‘Whether one analyses specifically the draft Order or considers the Claimant’s claim in the round, there features an unreasonable proposition that the Defendant should continue to pay a fixed quarterly sum of £22,500 whether or not the Claimant continues to receive the treatment in its current form. Whilst the Claimant proposes to incorporate a provision to apply to vary, there is no obligation upon him actually pursue such an application, leaving open the possibility of the Claimant utilising the monies received for such course or description of immunotherapy as he and his treating oncologist might choose.’
Master Thornett rejected the Claimant’s position. In his view, it was not clear as to why the Claimant would not make the intended PPO claim clear to the Defendant at an earlier stage. It was also noted that the medical experts had not had the chance of addressing the issues pertinent to the court’s consideration of a PPO.
In rejecting the Claimant’s approach, Master Thornett said that he ‘did not accept that the PPO claim was implicit or fell within a range of predictable options, such that the Defendant’s objections are contrived’
Master Thornett was satisfied that:
‘drawing upon interim payments to fund immunotherapy in the circumstances of a case such as this, where the Claimant’s life expectancy is very limited, is by far the more flexible and appropriate tool than a PPO. My reasons focus not only upon practical advantages and disadvantages featured in respectively the two mechanisms but also factors in the considerable procedural flexibility and (I believe) efficiency afforded to parties bringing and defending claims in the Asbestos List and as would immediately apply to any interim payment application. This second observation substantially informs and eclipses any process of comparing and contrasting the two mechanisms.’
The approach of the courts to asbestos claims is focused on ensuring an efficient and just outcome for Claimants, at the expense of formalities of procedure if necessary. The Master was of the view that, set against this context, any application for interim payments in a living mesothelioma case would not run the risk of extended delay.
Master Thornett’s judgment is a reminder of the flexibility of the Asbestos List and that the internal protocols for prioritisation allow the court to effectively deal with truly urgent applications. It is in that context that the decision to draw on interim payments to fund immunotherapy where the claimant’s life expectancy was very limited was the more flexible and appropriate tool than a PPO.
Whilst the Defendant’s argument was ultimately successful, the Claimant’s application for a PPO arose only in the context of a refusal by the Defendant to engage in settlement discussions on the proposed float agreement.
The judgment contains a salutary message of general importance that parties should attempt to confirm their position as early as possible. In the context of immunotherapy in asbestos claims, an early recognition of the need for a PPO will allow sufficient time to allow the medical experts to contribute from their medical viewpoint in the context of the requirements and limitations of PPO funding.