What is thought to be the first judgement on the issue of periodical payment orders (PPOs) as a mechanism for funding future immunotherapy in mesothelioma claims has been handed down.
Master Thornett issued the judgement in Howard v The Imperial London Hotels earlier in February. Peter Kenworthy of Keoghs acted for the defendant, instructing William Vandyck of Crown Office Chambers.
According to Kenworthy, who wrote about the case for the Keoghs website, PPOs are often put forward as a means of funding of future immunotherapy treatment, despite insurers arguing that they are inappropriate for these claims.
Ruling on the remaining issue in Howard v The Imperial London Hotels, whether the court could and should impose a PPO to fund immunotherapy treatment, Master Thornett gave a reserved judgement in the defendant’s favour.
Kenworthy said the approach of Master Thornett is best summarised when he refers to “the underlying difficulty of trying to achieve both certainty and flexibility by way of a PPO in circumstances where the nature and duration of treatment is liable to change at short notice and any alternatives come from an ever growing and developing field of choice. I conclude these are illustrations of the problem with a PPO in principle rather than a point for alternative drafting.”
Kenworthy explained: “The important point is the master’s observation that PPOs are not appropriate as a point of principle and the many failings and issues identified with a PPO cannot be overcome by refining the drafting of the order. This judgement should see an end to claimants pushing for PPOs and using the threat of applications to try and impose ever more cumbersome and expensive (to administer and agree) agreements.”
“Insurers have to date demonstrated a willingness to agree various ‘informal’ mechanisms to fund immunotherapy treatment. As the judgement in this case highlights, the only options open to the court are to award a global sum to include future treatment, or adjourn the case to allow for future interim payments, both of which have clear issues of their own.”
“Insurers have always wanted a collaborative and constructive approach to this new and evolving head of loss—with the sufferer’s interests at the centre. A clear and simple indemnity is the best solution for everyone. This judgement is a major step in that direction.”