Digging for justice

With solicitors embroiled in a row over fees as delays of compensation payments to sick miners continue, Emma Vere-Jones unearths various methods to speed up the claims process

For lawyers acting on behalf of sick British miners, the arduous and often distressing nature of the work is tempered by the knowledge that their cause is a good one.

However, these lawyers found themselves under the media spotlight recently when it was reported that they had so far received more than 100 million in fees, while thousands of miners themselves had died before they received a payment.

Figures released in a written Parliamentary answer in March showed that the ten firms and organisations representing the greatest number of claimants had earned a total of 36.9 million for claims resulting from chronic bronchitis and emphysema (CB&E), and 28.3 million for cases of vibration white finger (VWF), a debilitating condition triggered by the prolonged use of vibrating tools.

There are more than 450 other firms and organisations making claims for CB&E, VWF, or both.

National trade union firm Thompsons was top for both types of case, making a total of 16.8 million from handling 132 million in pay-outs.

Others included demerging Wales and west country firm Hugh James Ford Simey (11.1 million), Newcastle firm Browell Smith & Co (7.8 million), Barnsley firm Raleys (7.6 million) and Sheffield-based Graysons (4.2 million).

While the work means steady income for firms, solicitors say they are unfairly criticised.

'I could be emotive and tell you between seven and ten people a week are dying before they receive compensation, and that would make a great headline,' says Philip Browell, name partner of Browell Smith & Co.

'But a lot of press fail to realise how complex this process is.'

The costs for claims, which have been agreed in advance with the Department of Trade and Industry (DTI), are not that excessive, lawyers say.

'According to my breakdown,' says Neille Ryan, the partner in charge of claims at Kent firm Furley Page Fielding, 'the costs work out at about one fifteenth of the damages, which I think is fair.

You do have to work hard and smart in order to make this work pay.'

Claire Hodgson, an associate at Newcastle firm Watson Burton (3.6 million in fees) and a member of the solicitors' steering group dealing with VWF, agrees.

'The legal fees are covering the time incurred on cases, but not much more than that.

In a number of cases, it's not covering the costs.'

For the lawyers involved, the work is extensive.

Much time is spent manually checking what clients are entitled to, and then comparing that with the figure offered by the DTI.

Sometimes the difference may be a few pounds, but on other occasions it will be a difference of hundreds or thousands of pounds.

In part, this is because tracking down records of a client's work history can be a nightmare.

'You have to be a bit of a detective,' says Mr Browell.

'In some cases, records have been disposed of down the pit shaft.

Particularly in cases of the deceased, it's difficult to track down what they died of, where they worked, who they worked with and so on.'

While the handling agreement made under the scheme is designed to speed up the settlement process, it cannot cover the individual details of different cases.

'Not one case follows all of the set criteria,' says Lee Dixon, an associate at Watson Burton.

'A lot of resources have gone into sorting things out.'

In VWF cases, there are also delays because there is often more than one defendant, including those who may not be part of the scheme at all.

The delays in getting payments to mineworkers has been problematic, with many miners dying before their claims are eventually settled.

Solicitors insist this is not because of delays at their end, but actually down to delays by the DTI and the bodies it employs to handle the claims.

'The main cause of delay is IRISC [the claims-handling body for the DTI].

Obtaining and verifying a work history from them takes on average ten to 12 months,' says Mr Ryan.

Delays like this mean the final settlement is often not reached until almost two years after a claim is made.

'Part of the problem is that the DTI hugely underestimated the amount of resources needed to deal with the cases,' Mr Browell continues, 'and they're having a huge problem with recruitment and retention.' Indeed the work itself is extremely complex, and staff working on the schemes need extensive training.

'You can't just shove facts in one end of the sausage machine and see the money come out the other,' he says.

But the DTI defends its position.

'Consistently, where there have been resource difficulties, the department has done everything in its power to address these,' says a spokesman.

'It has to be understood that nothing like this has ever been done before and many problems that have arisen were not envisaged by the department or the solicitors.'

To speed up the processing of the claims, the DTI says it has constantly reviewed the level of resources at IRISC, and wherever requests have been made to fund increases these have been supplied.

The number of staff employed by IRISC has risen from 164 at the end of 1999 to more than 700 at the end of 2001.

The DTI has also promised solicitors the use of software, especially designed to accelerate the settlement process.

The computer models are used to calculate pension loss and special damages.

'In normal personal injury claims such software would not be supplied by the defendants,' says the spokesman.

'But in an effort to ensure that claims are settled as expeditiously as possible, the department agreed to share this information.'

However, law firms claim that the DTI has been slow in getting the software to them.

'We were promised the system in September last year, but it's still not arrived,' says Mr Browell.

This in turn has led to further time spent on the part of solicitors checking claims.

The DTI says it is hoped that, barring technical difficulties, the software will be available in July.

In a further effort to speed up the process, the government has now announced a cut-off date for VWF claims of 31 October 2002.

Originally, this cut-off date was September 2000, but the sheer numbers forced the government to extend the period by two years.

Claims made under the scheme have a 'limitation amnesty' and are not subject to a limitation period.

Once the deadline has passed, a common law case may still be brought but limitation will then apply, thereby making it more difficult for claimants to receive compensation.

'The insurance companies try to weasel out of payments with a limitation defence,' says Mr Browell.

As yet no cut-off date has been named for CB&E claims, although the consensus is that the government will eventually name one.

The cut-off date for VWF makes it likely that there will be a big influx of claims in the next few months.

'We suspect there is still a lot of people out there that haven't made claims yet, although it's difficult to estimate how many,' says Tom Jones, a partner at Thompsons.

With the quantity of claims coming in, it will be years, rather than months, before they are all settled.

'Assuming everything goes smoothly and there are no complications, no joint defendants, then the [VWF] claims take about six months,' says Ms Hodgson.

But cases without complications are rare, she adds.

Indeed, figures from the DTI reveal just how few cases have actually settled.

As at 23 March 2002, a total of 181,340 claims had been received for respiratory disease, 23,237 of which have settled for total compensation of 286.5 million.

Of the 138,155 VWF claims received so far, 37,628 have settled at a total cost of 503 million.

There is also concern that the more difficult claims are being left at the bottom of the pile.

'I suspect IRISC tends to process the easy claims first,' says Mr Ryan.

'The method of scrutiny is to look at the broad statistics - how many offers IRISC is making in one day.

It looks a lot better for IRISC to process 100 claims rather than just one.' As a result, he says, the later claims may take longer.

The DTI predicts that the eventual cost to the government will be 6 billion, but one lawyer estimates it is more likely to reach the 7 billion mark.

Without the two schemes in place, the DTI says it would have taken 15-20 years to settle all the claims.

But even with the schemes in place, the work looks set to provide solicitors with work for a long time to come.

For example, Thompsons is still signing up hundreds of new claimants every month.

The firm has roughly 30,000 cases at any one given time, and the helpline set up to take on new claims is 'flooded', Mr Jones says.

'We're looking at about six years before the claims are all settled - it's not an overnight thing.'

Mr Browell adds: 'There is a huge political will to get this done and get compensation through as quickly as possible.

But there is a divide between the resolve and will at the political level, and what happens at the practical level.

'Out of the total number of claims, only a tiny proportion has settled,' he reiterates.

'This work will continue for years.'

Emma Vere-Jones is a freelance journalist