High Court lifts stay on claims for compensation for first time since the closure of the Coal Health Compensation Scheme in 2004

08/07/2009

A former Greater Manchester pitman has received undisclosed damages after Mrs Justice Swift, sitting in the High Court, ruled that he should be allowed to claim compensation for his Chronic Obstructive Pulmonary Disease (COPD). This is the first case to be brought and allowed since the closure of the Coal Health Compensation Scheme on 31 March 2004.

Background

The British Coal Respiratory Disease Litigation is the largest ever personal injury action in the United Kingdom. It concerns claims by former employees of the National Coal Board/British Coal that lung injury developed as a result of exposure to mixed mine dust and nitrous fumes.

In September 1999 what was then the Department of Trade and Industry established a scheme to pay compensation to miners suffering from lung complaints as a result of working for British Coal. Over 315,000 claims were received before the scheme’s cut-off of the 31st March 2004.

In early 2004 it was anticipated that many more claims would be made by former coal miners after the 31st March 2004 cut-off – claims that would have to be brought through the courts, rather than through the DTI’s scheme. Of particular concern at the time were future claims by coal miners who had not then developed any symptoms of lung disease.

In anticipation of these future claims, on the 3rd February 2004 Sir Michael Turner, sitting in the Queen’s Bench Division of the High Court ordered that (1) all post cut-off claims be commenced by the issue of proceedings by way of a claim form in the Central Office of the High Court, Queen’s Bench Division; (2) any such claim as so notified will be stayed, pending further order of the court; (3) where a claim relates to a claimant with short life expectancy, then the claim will be progressed notwithstanding (2); and (4) the Defendant will establish a post cut off register for any post cut off claims.

The case

In October 2007 the claimant [who wishes to remian anonymous] issued a claim form seeking compensation for suffering Chronic Obstructive Pulmonary Disease (COPD) caused as a consequence of his employment with the National Coal Board/British Coal. His claim was stayed pursuant to Sir Michael Turner’s order.

The claimant is the first claimant to issue proceedings after the cut-off, and on the 3rd February 2009 the claimant was the first claimant to apply to have the stay lifted.

It was argued by the Defendant that the test for lifting the stay, subject of course to the overriding objective, is that set out in relation to Relief from Sanctions at CPR 3.9. In particular, it was argued that before the stay could be lifted the claimant had to satisfy the court that (1) that on the balance of probabilities his claim appeared to be better than arguable; (2) that his claim was brought within the relevant time-limit; (3) that the application to lift the stay was made promptly; (4) that an explanation was required as to why the claim was not brought under the DTI’s scheme; and (5) that the court should consider the effect that lifting the stay would have upon each party, including the cost and inconvenience to the Defendant of having to deal with a claim outside of the DTI’s scheme.

The claimant argued that the test for lifting the stay was simply whether it was in the interest of justice for the court to do so. It was argued that in this particular case it was in the interests of justice for the stay to be lifted. It was established that had been employed by the National Coal Board/British Coal; that he was suffering from COPD; and that his COPD was at least partly attributable to coal dust. Further, although not conclusive there was evidence that the claimant's claim was brought within the relevant time-limit and that the claimant was not aware that he was suffering from COPD until after the 31st March 2004 cut-off.

Noting that the stay was imposed for administrative purposes only (in anticipation of hundreds or even thousands of claims after the 31st March 2004 the court ordered that claims be stayed so that they could be case-managed in a consistent way), Mrs Justice Swift decided that the appropriate test was whether it was in the interest of justice for the stay to be lifted.

Mrs Justice Swift did not consider it appropriate for the court to use the stay as an additional gate-keeping mechanism for access to the courts (an outcome that the relief from sanctions test would have brought about) and thought that pre-trial issues, such as limitation, should be dealt with in the usual way at a preliminary hearing.

Although the interest of justice test would not necessarily prevent the court from refusing to lift the stay in a case that is wholly hopeless, properly pleaded cases supported by the appropriate medical evidence are unlikely to experience difficulties.

Further, it should be noted that the interest of justice test does not prevent the court from making the lifting of the stay conditional upon ensuring that the claim is ready for trial (in the claimant's stay was lifted on condition that he obtain after the event insurance). However, since the purpose of such conditions is to ensure that the case is ready for trial they are unlikely to impose an unbearable burden upon a claimant.

Phillip Jackson of Imperium Law LLP said : "This settlement really is a triumph. It also opens the door for other miners who have endured the conditions in these collieries - and are now suffering the consequences - so that they can pursue their compensation entitlements."

The claimant was represented by Andrew Byles of GCN, instructed by Phillip Jackson of Imperium Law LLP in Macclesfield.