This blog is written by John-Paul Swoboda and considers the decision in Wormleighton v Cape Intermediate Holdings Ltd [2024] EWHC 1971 (KB).
Just before the summer break Mrs Justice Hill handed down judgment in an application where four claimants (two living mesothelioma and two fatal mesothelioma claims) sought an order that their claims be consolidated and tried on liability together. This was sought, and granted pursuant to CPR 3.1(2)(g).
The claims are all product liability cases brought against Cape. The Claimants allege that Cape owed a duty as they were selling an inherently dangerous material, namely Asbestolux. This was, or ought to have been, known to Cape because of its superior knowledge, as well as the general understanding of the dangers of asbestos at the times material to the claims. Further, it is the Claimants’ case that Cape Intermediate Holdings Ltd owed a duty because of the control it had over its subsidiary companies (as has been decided in an employer/employee context in Chandler v Cape Plc [2012] EWCA Civ 525 but not in a product liability context). The alleged breach of the duty is put in several ways, including the failure by the Defendant, as manufacturer, to sufficiently warn of the dangers in using Asbestolux.
Section 49(2) of the Senior Court Act 1981 states Courts shall, “as far as possible” avoid a multiplicity of legal proceedings. The Court considered this in the light of Harrington v Mehta [2023] EWHC 998 (Ch) where Miles J set out various factors the Court should consider in deciding whether to consolidate proceedings.
The Claimants were successful in their application for consolidation. Consolidation was made on the basis that there was an overlap of facts and issues; there was a risk of inconsistent findings without consolidation; multiple proceedings would be more costly and create delay; it was not too late to achieve consolidation. It was noteworthy that there were the same solicitors in each case for the claimant and defendant.
Whilst there have been previous product liability cases brought against Cape none have yet made it to a contested trial. Given that the dates of exposure in Wormleighton (1961-1963) pre-date the 1965 ‘watershed’ these claims may also provide the Court with an opportunity to consider whether the same approach for pre-1965 cases should be used in a product liability case as in employers liability cases (cf. Cuthert & White v Taylor Woodrow Construction Holdings and anor [2024] EWCA Civ 244). This may well depend on whether Cape had a superior knowledge of the dangers of asbestos in its role as a leading player in the asbestos industry.
This is a case to watch, should it remain contested at trial. It has been listed for January 2025.
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