The remaining and sole issue before me is the mechanism by which the Claimant’s continuing costs of immunotherapy (for as long as such treatment is clinically recommended) should be ordered. The Claimant seeks an order that the cost is funded by way of Periodical Payments Order (“PPO”). The defendant denies that a PPO is the appropriate mechanism.

[“the Regulations”], the court can make a variable order “in addition to an order for an award of provisional damages” and by Regulation 5 :

“Where the court makes a variable order —

(a)

the damages must be assessed or agreed on the assumption that the disease, deterioration or improvement will not occur;

(b)

the order must specify the disease or type of deterioration or improvement;

(c)

the order may specify a period within which an application for it to be varied may be made;

(d)

the order may specify more than one disease or type of deterioration or improvement and may, in respect of each, specify a different period within which an application for it to be varied may be made;

(e)

the order must provide that a party must obtain the court’s permission to apply for it to be varied, unless the court otherwise orders.

the form of award preferred by the claimant including –

the form of award preferred by the defendant including the reasons for the defendant’s preference”.

The Act makes clear that the annual amount must be identified and fixed as should the intervals of payment. Whilst it is possible to vary a PPO utilising the Regulations, only one such application may be made. Therefore, as with the regime for provisional damages for lump sums, the 2005 Order does not give the courts the power to vary an order by reviewing the claimant’s position generally at a future date. The court’s power is limited to one consideration whether to vary the order from the typically limited extent provided for in the original order. If the parties have not consensually agreed terms, the limits to review at a later stage are restricted to specific definition as at the date the PPO award is made.

This presents difficulties for a claimant in receipt of immunotherapy who may have an established current need but their future needs are unpredictable, either in terms of duration or prescription. The only certainty is the duration between clinical reviews although, sadly, even those can be curtailed in the event of death. As to prescription, needs can change quickly depending upon the views of treating consultants given this remains a developing area of medicine.

Therefore, a PPO following exclusively the format of the legislation and CPR 41.8 is obliged to award an annual amount paid by way of a regular payment when neither can be said to reflect the anticipated future with very much accuracy. The Claimant observes that element of future uncertainty by way of need is, of course, present in any PPO. The feature of using a PPO in the case of immunotherapy, however, would at its very commencement be (a) entirely speculative in the case of a claimant not currently in receipt of immunotherapy (b) in the case of a claimant currently in receipt of immunotherapy, be based on a clinical status quo of uncertain duration and justification.

It is difficult to immediately follow how scenario (a) could satisfy the relevant provisions. Whilst scenario (b) may sit more comfortably in principle with the relevant provisions it still clearly presents a range of fact sensitive questions whether a PPO is appropriate in principle.

Briefly, the options include :

“Float” agreements, where the defendant’s payments are made into a trust administered by a third party that ensures there is a permanent residual fund or float to pay for the claimant’s ongoing treatment. Critically in the context of this case, a “float” agreement does not use the structure of a PPO. The feature of the float is to secure the claimant’s position in the event of either delay or dispute about further payment. Provision can be made to return to the court if the reasonableness of a proposed new course of treatment or its expense is disputed. Being a trust for specified purpose, this type of agreement can cater for the event of overpayment and hence reimbursement to the defendant for monies unused. For example, if the claimant dies or the treatment in question ceases to be recommended;

“Scott” agreements. Similarly, regular payments are made by the defendant, either by way of top-up or reimbursement, into a trust administered by the claimant’s representatives in respect of such costs as the claimant continues to incur. The scope of what the payments will be made for and any review of the treatment giving rise to them is for negotiation. Provision can be made to return to the court if the reasonableness of a proposed course is disputed. Claimants expect that the costs of the trust will be paid for by the defendant;

Negotiated or hybrid PPO’s. These might broadly follow the flexibility of the above but retain at least at their foundation the specificity and comparatively more rigid structure of that imposed by the Act and Regulations;

Agreements to indemnify. In short, the defendant agrees to pay the charges or costs incurred by the claimant for his or her treatment. The principle is one of contract but a difficulty can arise if the parties disagree upon the scope of what they have agreed in the event a variation in treatment or expense arises. See Hague v British Telecommunications Plc [2018] EWHC 2227 (QB).

Mr Roussak maintains that the direction of such costs by way of a PPO in this case is entirely analogous to the use of a PPO in any very serious personal injury claim. The Claimant here is just as much entitled to look to the certainty and security of a PPO as would a catastrophically injured claimant.

However, in contrast to a “typical” PPO, in the Claimant’s claim :

is no express obligation to refund the monies. The point would have to be taken up by the Defendant either with, as would be by then, either a very ill Claimant or the Claimant’s estate. To the contrary, the express provisions for refund provide certainty and clarity to both parties and avoided expense for the Defendant.

Following an explanation of anticipated treatment with Pembrolizumab, the narrative is then clear :

“The Claimant will seek to recover the cost of this future treatment, for so long as it is necessary. In the event the Defendant will not agree to fund the future treatment that may be recommended by the Claimant’s treating oncologist, the Claimant will seek a lump sum for the remaining heads of loss and a stay of the claim for future treatment”.

On 9 August 2018, the Claimant applied to rely upon an already disclosed report (undated but printed on 16^th July 2018) from Mr Shah as his expert oncologist and a

Consent Order reflecting this and similar permission to the Defendant was sealed on 24 August 2018. The “oncology experts” were to meet and serve a joint report by 9 November 2018.

The directions Order of 13 June 2018 had required skeleton arguments to be filed not more than 7 and not less than 3 days before the start of the hearing, as came to be Thursday 10 January 2019. Trial Counsel had apparently introduced themselves and started to discuss the case from Sunday 6^th January and, on Monday 7^th, Mr Roussak first introduced at least the prospect of the Claimant seeking a PPO in an e-mail. That position was formalised by Mr Roussak’s skeleton argument served at 7.30pm on Tuesday 8^th January 2019 i.e. one clear day before the trial on 10^th January. In response to criticisms in Mr Vandyck’s skeleton argument (as had been served a few hours earlier on 8^th January and had been drafted in response to Mr Roussak’s 7^th January e-mail) Mr Roussak produced a draft Order during the evening of 9^th January 2018.

First, he drew my attention to the permissive rather than mandatory provisions of CPR 41.5(1), as provide that :

“(1)

In a claim for damages for personal injury, each party in its statement of case may 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”.

Secondly, he mentioned there having been numerous unrequited overtures from his instructing solicitors to invite the Defendant to settlement discussions. Mr Roussak emphasised how it was difficult to accept how any Defendant could possibly not have contemplated the prospect of the Claimant pursuing a PPO as one of their options. Indeed, the very agreement about the instruction of oncologists to provide expert evidence should have made this clear, if it was not previously.

that the Claimant’s representatives apparently tactical choice has created a lack of clarity in the arguments and sufficiency in the evidence that should weigh heavily against the court exercising its discretion to award a PPO.

October 2018 did not address the issues pertinent to the court’s consideration of a

PPO. Indeed, Mr Roussak portrayed the report as having little value at all given the

Defendant had chosen to instruct a respiratory consultant rather than an oncologist (albeit a respiratory consultant with eminent experience and reputation in this field).

I do not think the joint report can simply be glossed over in this way. The report provides very clear indications how expert opinion might have been developed further had the experts been invited to contribute from their medical viewpoint in the context of the requirements and limitations of PPO funding in this case. For example :

At Para 5, they expert comment how data from clinical trials for medial overall survival or progression free survival “are of great importance in comparing the likely effectiveness of different treatment regimens and the potential role of newly available drugs”. In the previous paragraph, they had noted how the Claimant had by then undergone three cycles of

At Para 7 they comment how “It is therefore not possible at present to predict with confidence whether Mr Howard has responded to immunotherapy and, if he has, the duration of any response if such occurs. As a generalisation, individuals with poorer performance status at the outset of treatment have a less favourable response, in terms of prolongation of survival, that those of good status”.

Para 8 identifies the Claimant’s estimated expectation of life (as at early October 2018) as “in the range of 6 to 9 months” and, in the context of this sadly short life expectancy, at Para 9 how they “will be able to offer a better assessment if we are informed of the outcome of Mr Howard’s imminent assessment after four cycles of Pembrolizumab”. Whilst the comments that follow suggest such further information would assist a review of their prediction of life expectancy, it follows how updated review would also be relevant to the question of how any continuing treatment might best be funded.

Mr Roussak took me to Dr Shah’s July 2018 report where, under a discussion headed “Immunotherapy”, Dr Shah describes the Claimant as “an appropriate candidate for vinorelbine”. He discusses trial studies with pembrolizumab and concludes that he felt there was “significant evidence to support the use of pembrolizumab in patients with MPM (Footnote: ³) assuming there are no contraindications…I would advocate treatment at a flat dose of 200mg once every 3 weeks for up to 2 years. The treatment itself would require Mr Howard to travel to a chemotherapy unit once every 3 weeks for an infusion lasting approximately 90 minutes”. He adds that each treatment of pembrolizumab will cost around £8,000-9,000 which, though a seemingly high cost, is unlikely in the case of most patients to last for more than 2 years. That is because of many patients stop treatment either because of side effects or cancer progression.

“These costs are estimates and do not include the costs of dealing with side effects”.

On the issue of future variation in immunotherapy treatment, Dr Shah comments:

“It is likely that the standards of care for drug treatment will change over the course of his lifetime (Footnote: ⁴). As a result, flexibility should be considered in any settlement as this is the only way of ensuring that he has access to the best treatments as trial results are released”.

Indeed, if there is only generalised expert medical comment then this tends to undermine the primary recommendation of certainty in a PPO i.e. before then considering any variation provision. My view is that this generalised comment instead provides greater support for intervalic review of the Claimant’s treatment and progress as would be presented and considered by way of interim payment applications.

It is both unfortunate and unhelpful that at least from the time of the Claimant first receiving immunotherapy in late July 2018 the Claimant, through his solicitors, did not make clear he was now pursuing a PPO claim. Had he done, I am in no doubt it would have deepened the scope and content of the joint oncological evidence. The intended pursuit of a PPO should at the very latest have been confirmed by late November 2018 as part of the Claimant’s Schedule pursuant to the June 2018 Order. The wording as instead pleaded effectively perpetuates the lump sum claimed in the earlier schedule, adding only the possibility of an alternative but non-PPO negotiated mechanism.

I therefore do not accept Mr Roussak’s point that the PPO claim is implicit or at least falls within a range of predictable options, such that the Defendant’s objections are contrived. The practice of late notice if not ambush should be deprecated in all forms of civil litigation. It is not a strong point for a party confirming their position at a late stage to argue that the opposing party should have anticipated this. There is a world of difference between awareness of a range of options and confirmation of an elected position in circumstances where to do so can only assist both parties and lead to a fairer and more informed resolution.

I respectfully disagree with Mr Roussak’s characterisation of the way the PPO claim was confirmed as falling within the ordinary scope of litigation.

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.

There would be no provision for the Defendant to question or challenge any change in his current treatment regime. Effectively, all discretion in respect of the application of received funds lie with the Claimant and such treating oncologist as the Claimant choses from time to time. The proposed provision as to repayment only applies if no immunotherapy charges arise at all. The Defendant is powerless to challenge anything falling short of payment where there is no immunotherapy treatment at all.

This uncertainty is further endorsed by the lack of any indication what duties the Trustees would have. There would exist no provision for any relationship or mediation between them and the Defendant. All that is currently before the court is a proposal that “a trust” be set up. Thereafter, on the face of what has been presented at trial by the Claimant, the Trustees could pay whatever, whenever to whomever so long as it fell within the scope of immunotherapy as recommended an oncologist treating the Claimant.

Paragraph 7, “Variation of Periodical Payments”, provides for the Claimant having “permission to apply for further damages and/or to vary the level of periodical payments if deterioration in his mesothelioma is “sufficient to trigger the First Change

Date”. However, “First Change Date” is defined simply as the date when the treating oncologist advises that the Claimant should change from “Initial” to “Further Immunotherapy”. This rather generalised in definition transition illustrates the Defendant’s vulnerability, it submits, to a range of changed treatments without any ability for the Defendant to comment.

Potentially to broaden matters further, “Other Matters” at Paragraph 11 contemplate how if the treating oncologist advises a treatment regime “other than the Initial or Further Immunotherapy the parties may seek further directions and the Claimant further damages to fund that (and any subsequent) regimes”.

Mr Vandyck submits that these provisions are some way away from the certainty required by the Act and Regulations.

On the issue of absence of any input permitted to the Defendant, the Claimant conceded this could be incorporated within the variation provisions.

The “Other Matters” at Paragraph 11 he accepted was a broad attempt to facilitate general review as the innate part of a PPO but were not essential to the scheme.

The underlying approach to asbestos claims places the doing of justice, at speed and with improved efficiency, at the forefront; formalities of procedure take second place if they interfere with that. Many claims are urgent and sometimes very much so. Most urgent are ‘living mesothelioma’ claimants where the essence of justice (for both sides) is avoidance of delay in the gathering of evidence during the life of the claimant, and if possible the resolution of the claim before the Claimant passes away. One of the first considerations when considering the timetabling a claim is ‘how long does the claimant have to live?’ which is a salutary yardstick for any judge and gives a human context to the notion of ‘proportionate case management’. Technology and extensive direct access is provided to the specialist masters using email, an open-door policy, and a ‘no nonsense’ approach. Hearings are generally as informal as the circumstances permit (without of course departing from the law). Almost all hearings are by telephone. Parties are not discouraged from ‘mentioning’ claims or asking for a short hearing or a decision by email on matters arising, and it is seldom that party is penalised for bringing a matter back for our attention in good faith. Where an urgent application is made it is expected to be by way of email either directly to one of the specialist Masters or channelled through the QB staff, and without the formality of drafting and issuing a Part 23 form. All that is required is that the evidential and legal requirements for an application are met, rather than the strict form of a Part 23 application notice.

Necessarily comparing the merits of the interim payment approach with a PPO decided and awarded by the court (rather than following agreement), as must be defined entirely within the jurisdictional confines of the 1996 Act and 2005 Order; and

Seeking to compare and contrast more generally the choice of a PPO on a consensual or negotiated basis with the variety of other agreements and methodologies currently adopted in this specialist area.

As to the latter, I do not think it appropriate to offer any comment or to express preference to the alternatives to PPO’s. The relevant considerations before me are between a non-negotiated PPO or the interim payment route.

41.7, as well as “the reasons for the claimant’s preference” under PD 41.7.1(2)(a).

regret to observe that the conviction of this submission is somewhat undermined by the lack of any direct evidence from the Claimant in support. Whether this reflects an apparently late decision to commit himself to pursuing a PPO would be entire speculation. Either way, however, the Claimant’s third and last witness statement is signed 1^st July 2018 i.e. before the commencement of immunotherapy. In the last paragraph (Para 15), the Claimant instead anticipates his next follow-up appointment with his oncologist and remarks how he hoped his condition would be stable “but if not then I would consider further treatment. I am aware there are private treatment options available and this is something which I would be interested in exploring further. If possible, I would rather this route than entering into a trial in which I could be offered a placebo”.

Discussion directly from a claimant about preference is surely desirable. In particular, in this case one would have expected the Claimant to explain the difference between continuing contact with his solicitors and professional trustees working within a department at his solicitors firm.

Mr Roussak conceded in reply to Mr Vandyck that if the approximation of such expenses was a real concern to the Defendant, then the Claimant might be willing both to define and restrict such costs to these figures.

accept that the likely costs that might be awarded against an unsuccessful defendant who had opposed an interim payment application and as necessitated extended evidential exchanges between the parties leading to an attended hearing may well be at or indeed comfortably exceed £5,000. However, that comparison is not immediately appropriate in these circumstances where there is a broad measure of agreement as to funding in principle. I reiterate the Defendant has made its position clear and on open basis as to the Claimant’s entitlement to continue to receive funding for his current therapy. I cannot currently envisage why any significant legal costs will be incurred by way of dispute for as long as that programme continues in its current cycles. Indeed, putting to one side whether the Defendant has already either given or come very close to offering an undertaking to indemnify the current regime if it progresses without variation, in the event of the Defendant were somewhat illogically to change its position or (a point of observation by the Claimant) prove tardy in response to requests for further funds at a time when the Claimant was running out money, then the Claimant can easily put on an urgent and relatively straightforward application.

I would not associate that type of application with the sophistry of some contended interim applications. Moreover, any unreasonable deviation from the Defendant’s current position would more likely than not result in the Defendant paying the costs anyway. Thus, the comparison is more between a scheme that obliges the Defendant to pay about £5,000 in any event and comparatively more modest costs assuming that the current regime can continue to be funded by agreement.

I accept the interim payment method presents at least a residual risk of a costs exposure to the Claimant in the event he pursues a contended interim payment application but fails to satisfy the court it was appropriate but I counterbalance that risk with the disadvantages and expense a PPO with an added trust facility would unavoidably present. Either way, Mr Roussak’s submission that the interim payment route would involve an “enormous amount of work and cost” owing to the need for repeated evidence overstates the position. Not least because any variation in that would always have to be introduced and justified by the Claimant’s solicitors even if part of a variation application in a PPO. The distinction between that explanation and one that would be provided as part of an interim payment application is not immediately apparent. In both cases, the Claimant’s solicitors would have to provide evidence of the change in clinical recommendation and its consequential difference in costs (if any).

The obvious point here is that it is entirely open to the Claimant easily to avoid this perceived disadvantage by offering repayment in exchange for the Defendant agreeing to put the Claimant more comfortably in funds for his continuing treatment. Indeed, the very repayment paragraphs urged by the Claimant as part of his proposed PPO Order could be incorporated into a Consent Order settling an appropriate interim payment. The Defendant would have an obvious incentive to agree but so would the Claimant to offer it. Whilst under no obligation to do so, the Claimant would otherwise run the risk of any sum assessed by the court being more conservative so as to avoid the risks of overpayment.

am satisfied these observations answer the Claimant’s submissions that interim payments inevitably fail to balance the problems of either underpayment or payment as exceeds the likely award at trial.