Sealed Collective Case Management Order for ‘Aerotoxic Syndrome’ Group Litigation

So-called ‘Aerotoxic Syndrome’ claims are being brought by airline employees who have sustained personal injuries (including neurological damage), allegedly as a result of exposure to toxic substances in aircraft cabin air. For more information, read our comprehensive claims handling publication: Aerotoxic Syndrome: An Emerging Risk? (here)

In edition 270 of BC Disease News (here), we reported that a collective case management hearing had taken place, before Senior Master Barbara Fontaine, in regards to ‘Aerotoxicity Claims’.

On 17 June 2019, the Order was, at long last, sealed by the Court.

The effect of this agreement is to transfer a ‘significant’ number of litigated industrial disease cases to the Royal Courts of Justice (RCJ) in London, ‘achieving greater certainty of outcome and an overall reduction in costs’.

It also allows the RCJ to manage cases that have not yet been issued or served (‘intimated’ and ‘future’ claims), though the Order expressly invites claimant firms to ‘use their best endeavours’ to send letters of claim for all aerotoxicity cases that they intend to advance ‘as soon as practicable’, in compliance with Paragraph 6 of the Pre-Action Protocol for Disease and lllness Claims.

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Another feature of the Order is that it protects the claimants’ position (especially those who have only sent a letter of claim) on limitation, by introducing a ‘standstill date’ (‘intimated’ cases – the date of the Order or, if later, the date of the letter of claim / ‘issued’ cases – the date of issue):

‘The effect of this agreement is to prevent the accrual of time between the standstill date and the termination of this agreement [the Order] being taken into consideration at any limitation trial’.

By the end of this month, solicitors’ practices, acting for (prospective) defendants to ‘Aerotoxicity Claims’, are expected to have attended a meeting with claimants’ solicitors, in order to determine:

  • Which defendant firm will be the nominated ‘liaison solicitor’;
  • Which of the remaining cases will join Westgate & Love v British Airways and White v British Airways as lead cases;
  • The terms upon which the claims will be stayed;
  • The limits and dates for disclosure;
  • What the preliminary issues are and in what order;
  • Proposed timetabling;
  • How a ‘docket’, or register, system can be set up to capture ‘future claims’ (those that have not been intimated to defendants) in the litigation;
  • What will be the latest date that a claim may be admitted for inclusion in collective case management; and
  • Future costs (costs budgeting).

The Order further directs that, by no later than 28 days before the meeting, the parties should have circulated to all attendees, in respect of each claim:

  • The initials of the individual claimant;
  • The date of birth of the claimant;
  • The employment dates of the claimant with the various defendants;
  • The dates of any ‘fume events’ being relied upon;
  • The broad nature of the allegation of chronic exposure;
  • The date of onset of symptoms;
  • A broad description of the nature of the symptoms;
  • The claimant's current employment status and the nature of any claim for loss of earnings; and
  • The date of issue.

In addition, no later than 14 days before the meeting (this is understood to be the stage that the parties are currently approaching), Position Statements should be circulated, indicating a provisional choice of lead cases, all of which should allege ‘chronic exposure’ and, when considered in the round, should ‘consist of a fair spread of facts’.

If, prior to the date of the meeting, consensus is achieved on lead cases and any other issues to be discussed, then the meeting will not take place.