Ab & Ors v Small Mines - and - UK Coal

Acceptance of a LOROS or DOROS payment settles the claimant’s liability claim against the Department but does not extinguish a separate surviving claim against a co-defendant. Unless the applicable accession agreement expressly excludes such claims, the surviving claim may proceed through the CHA. The increased administrative or economic burden on the co-defendant does not, without more, amount to a fundamental breach, frustration or impossibility of performance. Case management should promote fair, consistent and expeditious resolution, while recognising the agreed limits on damages and costs under the CHA.

The British Coal Respiratory Disease Litigation was administered under a Claims Handling Agreement (CHA). UK Coal and Small Mines later acceded to the CHA for claims involving periods of employment in their mines. LOROS and DOROS enabled certain claims against the Department to be settled without the full medical assessment process.

The issue was whether a claimant who accepted an OROS payment could still pursue a surviving claim against UK Coal or Small Mines under the CHA, or whether the claimant’s only remedy was conventional common-law litigation. The parties agreed that the claim against each co-defendant was a separate cause of action and survived settlement with the Department.

1. Outcome. The question was answered affirmatively. A claimant who had accepted a LOROS or DOROS payment could maintain and pursue the surviving claim against UK Coal or Small Mines through the CHA.
2. The settlement concerned only the Department’s liability. It did not extinguish the separate cause of action arising from exposure during employment with a co-defendant.
3. The accession agreements provided a process for dealing with claims involving employment in the co-defendants’ mines. Neither agreement expressly excluded claims in which an OROS payment had been accepted. The process could operate even where the Department was no longer a party, including in claims where a co-defendant was the sole defendant.
4. The additional administrative and economic burden on the co-defendants did not fundamentally breach the CHA or the accession agreements. It did not frustrate their commercial objective or render performance impossible. The court rejected the contention that acceptance of an OROS payment released the claimant from the scheme.
5. From a case-management perspective, use of the CHA was the most efficient, effective and expeditious method. Common-law litigation would require substantially the same information gathering, disclosure, medical assessment and apportionment work, while removing the CHA’s limits on damages and costs. Requiring meritorious claims to proceed at common law could frustrate the scheme’s purpose and deny justice to claimants.
6. The court recognised the concern about unmeritorious claims, particularly uncorroborated chronic bronchitis claims. It considered that solicitors’ professional duties and financial interests made a large number of wholly unmeritorious claims unlikely. Protective directions, including preliminary corroboration requirements in suitable cases, could be considered at a later hearing.