In this post, Aliyah Akram summarises and comments on the decision of HHJ Curran QC, in which he gave judgment against all three defendants in a case arising out of the death of a bricklayer who had been exposed to asbestos while working in factories

The decision on apportionment and costs (unreported but available on Westlaw and Lawtel) is also noteworthy. Although liability was established against all three defendants, because the Claimant lost on the only disputed issue in relation to D1 (which was whether D1 had employed the Deceased), the Claimant was ordered to pay D1’s costs. However, the Judge held that since D2 and D3 had sought unsuccessfully to take advantage of the Claimant’s argument on this issue, they had to pay the Claimant’s costs of the exercise.

Ronald Walker QC acted for the First Defendant.

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Mr Hill was exposed to asbestos when he stripped out industrial furnaces which were lined with asbestos insulation.  Working in the furnaces produced clouds of dust and Mr Hill and his colleagues had no more than Martindale masks or scarves across their faces to protect themselves.  The evidence showed that most of the dust would have been brick dust, but there would also have been small quantities of asbestos dust.

Those small quantities of asbestos dust were enough to cause Mr Hill to develop mesothelioma, which proved to be fatal. A claim was brought against three defendants.

 The First Defendant

It was claimed that Mr Hill was employed by the first defendant, a company which constructed and maintained industrial furnaces.  To succeed against the first defendant the Claimant needed to establish its liability as an employer because both the first defendant and its insured were insolvent and the Claimant could only recover from the Financial Services Compensation Scheme on an employer’s liability basis.

But the first defendant denied that it had employed Mr Hill and argued instead that he was the employee of an independent contractor which in turn supplied labour to the first defendant.  It noted that Mr Hill had, before his death, described himself as employed by the independent contractor rather than by the first defendant.  On the other hand, it was accepted that the first defendant employed Mr Hill’s supervisors and exerted a high degree of control over the manner in which he carried out his work.

The court agreed with the first defendant, Mr Hill had not been an employee and so the employer’s liability claim against the first defendant failed.  For the purposes of this case summary the reasoning is not analysed in any detail, but it should be noted that the judgment gives clear and helpful analysis of the circumstances in which a contract of employment might arise with the end user of services.

The Factory Defendants

The other two defendants were described as the ‘factory defendants’.  Both were involved because the first defendant had sent Mr Hill to work in their factories in the early 1970s.  In the second defendant’s factory, he worked on extending furnaces used in the manufacture of gun barrels for tanks and in the third defendant’s cast nickel factory he carried out maintenance work on their furnaces.

The factory defendants raised a number of ultimately unsuccessful defences.

Challenge 1: section 63, Factories Act 1961

The factory defendants argued that the 1969 Asbestos Regulations had replaced section 63 of the Factories Act 1961 which provides that:

“In every factory in which, in connection with any process carried on, there is given off any dust or fume or other impurity of such a character and to such extent as to be likely to be injurious or offensive to the persons employed, or any substantial quantity of dust of any kind, all practicable measures shall be taken to protect the persons employed against inhalation of the dust or fume or other impurity and to prevent its accumulating in any workroom, and in particular, where the nature of the process makes it practicable, exhaust appliances shall be provided and maintained, as near as possible to the point of origin of the dust or fume or other impurity, so as to prevent its entering the air of any workroom.” 

In rejecting this argument, the judge held that s. 63 contemplates two categories of dust: (1) dust of such a character and extent as when then foreseeably likely to be injurious to persons employed within the factory and (2) any substantial quantity of dust of any kind.  The two categories are commonly referred to as the first limb and the second limb.  (It was the second limb of the equivalent provision in the Factories Act 1937 which was under consideration in McDonald v National Grid [2014] UKSC 53.)  While the Regulation 3(3) of the 1969 Regulations had replaced s.63 insomuch as it related to dust which might foreseeably have caused danger to health it did not alter the obligations in relation to substantial quantities of dust.

The second defendant also argued that the work carried out by the deceased was not a process within the meaning of s. 63 as the extension of the furnaces was a “one-off” to enable the manufacture of longer gun barrels rather than a form of routine work or maintenance.  This argument was pretty swiftly dismissed as the judge noted that s. 63 refers to “any process carried on”.   

 Challenge 2: section 29 of the Factories Act 1961

The factory defendants also argued that the deceased’s place of work was not unsafe for the purposes of s.29 of the Factories Act 1961 because the safety of the workplace related to its physical structure and attributes having regard to activities which are constantly and regularly carried out there rather than unusual or irregular which creates a hazard of an exceptional kind.

This argument was despatched with similar speed.  The judge found that the furnaces were necessary and intrinsic parts of the factory premises and since the deceased worked in both factories for some weeks their work was regular and thus workplace was unsafe.

Challenge 3: common law liability

Lastly both factory defendants argued that a common law liability should not arise because they had reasonably engaged a third-party contractor, the first defendant, to carry out the work.  Again this defence was dismissed.  The judge held that a duty of care would arise where a factory occupier has control over its premises and the authority to dictate what is or is not done within them.  The clouds of dust being produced by the deceased’s work were an obvious risk to health and safety which the factory defendants should have guarded against.

Conclusion

This was a case of shifting loyalties.  When it suited the factory defendants they joined cause with the claimant to argue that the first defendant had employed Mr Hill.  Equally when it suited the first defendant to argue that the factory defendants would be liable for Mr Hill’s exposure to asbestos they supported the claimant’s submissions.

Ultimately for claimant lawyers this case shows that they can be creative with regard to who they bring claims against and on what basis and that doing so can increase the likelihood of a successful claim.

End Note: see also Hawkes v Warmex [2018] EWHC 205 for an application of s.47 of the Factories Act 1937, the equivalent provision to s.63 of the Factories Act 1961.

In this post, Harry Steinberg QC analyses the decision in Bussey and its likely impact, including a potential limitation argument which may be open to those who were advised not to advance so-called ‘low-level’ exposure claims in the seven-year period after the Court of Appeal’s decision in Williams v University of Birmingham [2011] EWCA Civ 1242.

Mike Rawlinson QC and Gemma Scott – Counsel for the Appellants in Bussey – will be speaking about the case and its implications at the 12KBW Annual Asbestos Seminar at the Barbican Centre tomorrow

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The end of an era

It is now about a month since the Court of Appeal handed down its decision in the case of Bussey v Anglia Heating Ltd [2018] EWCA Civ 243 . The post-match analysis has been almost as keenly fought as the match itself. But, despite the noise, there can be no doubt that this was a decisive victory for mesothelioma sufferers and claimants.

The facts are well known. Mr Bussey was a plumber working for the Defendant (“the largest plumbing business in Norwich”) between 1965 and 1968. Mr Bussey occasionally worked with asbestos cement pipes and asbestos rope. The trial judge held, as a matter of fact, that his exposure never exceeded the levels set out in TDN13. And that, following Williams v University of Birmingham [2011] EWCA Civ 1242, was the end of the matter.

Except that it wasn’t.

On appeal, Mr Bussey’s widow argued (1) that the exposure gave rise to a reasonably foreseeable risk of harm even though it did not exceed TDN13 levels; (2) that, in line with authority not cited in Williams (i.e. Jeromson v Shell Tankers [2001] EWCA Civ 100 and Maguire v Harland and Wolff [2005] EWCA Civ 1), the Defendant’s duty was to reduce asbestos exposure to the greatest extent possible; and, (3) that Williams was wrongly decided.

The Court of Appeal considered those two absent cases and held: ‘If Aikens LJ had those two decisions in mind, I do not think that he would have suggested (if indeed he did suggest) that TDN13 was a general yardstick for determining the foreseeability issue’ (Jackson LJ at para 48).

This point – that TDN13 is not a yardstick for foreseeability or a “bright line” of liability– is central. It has never been satisfactorily explained why the HMFI’s threshold for prosecution, based (as it was) on a deeply flawed analysis of the risks of asbestosis rather than mesothelioma, should somehow be a touchstone for civil liability.

As Underhill LJ said, ‘I think that the Judge was wrong to treat this Court in Williams as having laid down a binding proposition that employers were entitled to regard exposure at levels below those identified in TDN 13 as “safe”, even in the period 1970-1976, still less at a period prior to its publication.’

So the decision marks the end of an era. It is the end of the supremacy of TDN13 and its relegation to a more appropriate role (as it was politely described) as a “relevant consideration”. The consequences will go far beyond the facts of Bussey.

While the Court of Appeal held that Williams had applied the correct legal principle, there was some disagreement as to what the test for foreseeability ought to be. Jackson LJ proposed the following test: ‘During the period 1965 to 1968 ought Anglia reasonably to have foreseen that…  he would be exposed to an unacceptable risk of asbestos-related injury?’ (emphasis added).

The majority (Underhill and Moylan LJJ) made a subtle, but important, distinction. They held that in formulating the test for foreseeability, the qualifying adjective “unacceptable” should be omitted since it was “liable to mislead”. As Moylan LJ stated, “… in the context of mesothelioma, for which no safe level of exposure to asbestos dust has been identified, the description of the risk as being acceptable has particular problems.”

If the Williams approach is now to be stripped of both its reliance on TDN13 and the concept of ‘acceptable’ level of risk, then it tells us little more than that the risk must be measured by the standards of the day. The test proposed by Jackson LJ, as modified by the other members of the Court of Appeal, must be a worrying prospect for the insurance industry. Defendants can no longer shelter beneath TDN13. The Court pointedly noted that the defendant had called no evidence.

Underhill LJ held that the inquiry into foreseeability must be considered in two stages. First, should the defendant have been aware that the exposure to asbestos dust which his work involved gave rise to a significant risk of asbestos-related injury? Secondly, if so, did the defendant take proper precautions to reduce or eliminate that risk?

Perhaps the most important part is the discussion of what amounts to a significant risk. Underhill LJ specifically clarified this point, ‘I say “significant” only so as to exclude risks which are purely fanciful: any real risk, albeit statistically small, of a fatal illness is significant.’ In other words, a risk of fatal illness will be deemed significant for these purposes even if it would have been considered statistically slight at the time.

This approach, taken together with (for example) what the Chief Inspector of Factories was publishing from 1938 onwards about the potential dangers of asbestos, may make even early cases difficult to defend; see, for example, the pre-Bussey decision on common law duties in Hawkes v Warmex [2018] EWHC 205 (QB).

It also has potentially important consequences for the interpretation and application of the Asbestos Regulations 1969. These regulations, where they applied, imposed mandatory safety precautions, such as the provision of exhaust ventilation or protective respiratory equipment, without any further qualification. Since Williams, however, defendants have sought to limit the effect of the 1969 Regulations. Their argument is based on regulation 2(3) under which the various provisions applied to asbestos dust ‘liable to cause danger’. The argument, therefore, is that this imports the requirement of foreseeability.

But this must now be seen in the light of Bussey and the Court’s approval of the position taken in Maguire, ‘…alarm bells sounded in late 1965 “when it began to be appreciated that there could be no safe or permissible level of exposure, direct or indirect to asbestos dust”’ (Jackson LJ at para 53).

The logical conclusion is obvious. If there is no ‘safe’ or permissible level of exposure, then the regulations will apply where even only slight exposure is established. This will free the Courts from the solecism of relying on TDN13. It will also bring these cases in line with the stricter approach taken to cases under the Asbestos Industry Regulations 1931 following McDonald v National Grid [2015] AC 1128.

What now?

The Court of Appeal allowed the appeal but remitted the case to the Judge for him to determine the liability issue. It remains to be seen whether the Defendant will continue to fight the case, despite some pretty heavy hints, ‘… if the judge had not felt constrained by the decision in Williams, he might have concluded that, as a reasonably prudent employer, Anglia ought to have foreseen that risk.’

More generally, it seems that this is the end of the TDN13 era. At least, the end of the mechanical adoption of it as some kind of safety standard. It will be significantly easier for claimants to establish liability both at common law and by the invocation of the Asbestos Regulations 1969.

The downfall of TDN13 seems both legally correct and long overdue. And the Court of Appeal held that the Court would probably have taken a different view if it had been taken to relevant authority. But where does that leave the mesothelioma sufferers who, over the last 7 or 8 years since Williams, have been told that they cannot succeed in the light of the prominence of TDN13?  It is little consolation to them that this now appears to have been recognised as a mistake.

Most of these people will now have died, but their dependants or estates may wish to pursue a case. They would have no redress against lawyers who advised them appropriately as the law then stood. But there is a respectable argument that they could avoid a limitation defence. While ignorance of a legal claim does not stop time running under s.14 of the Limitation Act 1980, it might be a decisive factor where seeking discretion under s.33, see, for example, Lea v Armitage Shanks Group Limited (unreported, Swanwick J, 19 July 1977).

Similarly, what about those claims that failed because later Courts explicitly accepted that TDN13 was a ‘safe’ level of exposure? It raises the interesting possibility of an appeal of time in cases such as McCarthy v Marks and Spencer [2014] EWHC 3183 (QB).

In the well-known case of Rothwell v Chemical & Insulating Co Ltd [2008] 1 AC 281 the House of Lords held that Mr Rothwell and his three co-claimants who had all developed pleural plaques, areas of fibrous thickening of the pleural membrane, did not suffer from a compensable condition as they had not experienced any symptoms as a result of the plaques.

The claimants, who had developed plaques after being negligently exposed to asbestos by their employers, had not suffered damage for the purposes of creating a cause of action in tort. The Lords decided that where pleural plaques did not themselves cause any symptoms their presence was not an injury. Neither the risk of developing other asbestos related diseases (to which the plaques themselves did not contribute) nor the anxiety of that prospect amounted to actionable damage.

In their judgments however their Lordships allowed for the prospect of exceptional cases where plaques do cause symptoms. In a recent case just such a rare victim developed pleural plaques which caused such severe symptoms that they resulted in his death.

The deceased was exposed to asbestos during the course of his work as an apprentice and then qualified marine engineer on board ships.  His exposure included applying and removing asbestos lagging on pipework and boilers.

The deceased began to experience breathlessness in August 2011. CT scans and x rays investigating the cause of his symptoms revealed that he had developed extensive bilateral calcified pleural plaques.   Dr Corless, instructed by the claimant, and Dr Moore-Gillon, instructed by the defendant,  agreed that the scans showed disabling pleural plaques. His pleural plaques were extensive, contiguous and heavily calcified and so they acted like a ‘cuirass’ around the lung and restricted ventilation. The effect of the cuirass was to cause the breathlessness he first experienced as well as recurrent respiratory infections. Eventually the impairment of his lung function caused by the plaques led to bronchopneumonia.  The pneumonia caused his death in July 2016.

The claim was issued against them the deceased’s former employers and then settled for a significant sum. It is clear therefore that a diagnosis of pleural plaques does not necessarily spell the end of a claim, where plaques are symptomatic then they are as compensable as any other asbestos related disease.

Aliyah Akram acted for the Claimant in this case.

The court of appeal has allowed the appeal in Bussey.

A full blog post will follow in due course, click here for a link to the judgment.

This post is by Max Archer.

Common law duties in the 1940s  

C was the son and executor of Mr Hawkes’ estate. She died in October 2014 from mesothelioma. C alleged that she was exposed to asbestos between 1946 and 1952 while making electric blankets at W’s factory premises.

The electric blankets consisted of a lining with an electrical wire fed through it, which generated the heat. The lining was stuffed inside a canvas cover which was in turn covered with a softer material. There were switches on the outside of the blanket to control the heat. Mrs Hawkes used a needle to thread the wire through the lining.

C’s case was that the inner lining was made of asbestos and that, as she worked, bits of the lining asbestos fibre would come off and settle on her clothes. C contended that W was therefore negligent and in breach of various statutory duties.

The Judge held that C had failed to prove that the lining was made of asbestos. There was no oral factual evidence as Mrs Hawkes had died by the time of the trial.

The claim therefore failed on the facts. But the most interesting part of the case was how the Court dealt with D’s duties as a factory owner and employer in the 1940s and 1950s.

Asbestos Industry Regulations 1931

The preamble to the 1931 Regulations provide as follows:

“. . . they shall apply to all factories and workshops or parts thereof in which the following processes or any of them are carried on: …

(ii) all processes in the manufacture of asbestos textiles, including preparatory and finishing processes;”

C’s case was that the stitching or threading of the inner lining and all the manipulation of the inner lining by hand came within paragraph (ii) of the preamble. D argued that it did not.

The Judge – notwithstanding the width given to the 1931 Regulations by McDonald v National Grid [2014] UKSC 53 – that they did not apply. He held that paragraph ii referred to the manufacture of yarn or cloth wholly or partly made from asbestos, not the manufacture of products made with asbestos textiles. ‘Finishing a textile’ did not include turning that asbestos textile into a product.

He went on to find that had the regulations applied they would have been breached.

The Factories Act 1937: ‘substantial quantities’ of dust

As to s.47 of the Factories Act 1937, the first question the judge asked was whether the process that D was carrying out involved ‘substantial’ quantities of dust. This is the so-called ‘second limb’ of s.47.

The Judge found that there were not substantial quantities of dust. He relied upon Harries’ paper, “Asbestos Dust Concentrations in Ship Repairing: A Practical Approach to Improving Asbestos Hygiene in Naval Dockyards” published in 1971. He had heard the experts on this point, but found that the experts could only help by discussing the levels of asbestos dust, which in themselves are not sufficient to indicate whether the dust would be visible or considerable. He found that the most reliable evidence came from the Harries paper in respect of sewing. The peak concentration recorded for that activity was 10 fibres per ml, a level that the judge felt would have been unlikely to be visible.

The finding under the first-limb of s.47 was different. In order to satisfy the first limb, the court must be satisfied that the dust which is given off of ‘is of such a character and given off to such an extent as to be likely to be injurious or offensive to the persons employed.’

The judge analysed this provision and the common law claim together.

Common Law (and the ‘first limb’ of s.47)

This is perhaps the most important part of the decision.

It was agreed between the parties that, at the relevant time between 1946 and 1952, it was not known that mesothelioma was a potential consequence of asbestos exposure and it was certainly not known that very low levels of asbestos fibre could cause the disease.

This said, C argued that W ought to have been aware of the annual reports of the Chief Inspector of Factories, by 1938 asbestos was referred to in these reports as ‘highly dangerous’ and reference was made in 1949 to preventing inhalation as far as possible.

The Judge engaged in a detailed discussion of the authorities including Jeromson v Shell Tankers [2001] EWCA Civ 101, Maguire v Harland & Wolff plc [2005] EWCA Civ 01 and Williams v The University of Birmingham [2011] EWCA Civ 1242.

Of particular note is the judge’s treatment of whether was any conflict as between Williams and Jeromson. He held that there was no conflict, the formulation to be applied to determine the breach of duty question is consistent with what was said in Jeromson, namely what needs to be reasonably foreseeable is asbestos related injury, not mesothelioma itself. He held that Williams was confined to the factual context of 1974, in which, on the basis of TDN 13, it was believed that there was a level at which the exposure to asbestos did not create a risk of asbestos related injury. Thus Williams was tightly confined to its context and the formula from Jeromson was accepted.

As to the application of this test, the Judge found that W should have known by 1946 to 1952 that asbestos was regarded as highly dangerous and that inhalation should be prevented as far as possible. Asbestos related injury of some sort was a reasonably foreseeable consequence of exposure to asbestos dust, even at low levels of exposure. W had no way of measuring the levels of asbestos dust in the air in its factory. Mrs Hawkes’ evidence was that bits of lining were coming off of the blankets and getting on her clothes. This was more than minimal and enough to require W to consider practical measures to protect employees against inhalation of fibres. Unless the employer could be confident that the dust was not coming from asbestos materials, in a factory known to be working with asbestos, it should not matter in terms of breach of duty whether the visible dust was or was not asbestos. Further, it could not have been established at the time what it was or in what amount. The presence of dust in the air triggered a duty to take precautions or to take advice.

W had not done so and – if the lining had contained asbestos – it would have been in breach of its common law duty of care and s.47 of the Factories Act 1937 to protect its workers from dust that was likely to cause harm.

Analysis

While the claim failed on the facts, it is difficult to see this case as anything other than a significant blow to the insurance industry.

The Court held that the processes did not fall within the ambit of the Asbestos Industry Regulations 1931, but the other causes of action (more typically seen in modern litigation) would all have been made out. The most important ruling is that a notionally low level of exposure – which was expressly held to be below ‘substantial’ – would have been in breach of the common law duty of care and s.47 of the Factories Act in the 1940s.

This is the type of point that many claimants have been seeking to make since Williams. This case represents another significant departure from the rather mechanical application of artificial ‘safety standards’ taken in a wave of other post-Williams decisions. This seems to be the result of this Court carefully considering the available historical literature in full and in context.

Claimants will be hoping that the Court of Appeal in Bussey takes a similar approach.

This blog post is by James Beeton of 12 King’s Bench Walk.

In a decision delivered yesterday (5 December 2017), Master McCloud determined that all disclosure documents referred to in the major asbestos product liability trial of Concept 70 & Others v Cape International Holdings Ltd (which took place over the course of several weeks earlier this year before Picken J) could be made publicly available. Permission to appeal was refused, although it remains to be seen whether a further application in this respect will follow.

The decision, involving an application described as ‘unprecedented in scope’, has very significant implications for asbestos-related claims involving Cape specifically, the provenance and impact of TDN13 in mesothelioma claims generally, and broader historical knowledge arguments in respect of the asbestos industry as a whole.

It also contains a fascinating analysis of the principles of open justice and the balancing of legitimate interests in the context of the court’s power to supply court documents to non-parties under CPR r.5.4C(2). The reliance on statements of principle in the recent Employment Tribunal fees decision of R (On the Application of UNISON) v Lord Chancellor [2017] UKSC 51 in particular retains that case’s approach of expressly grounding a judicial decision within its broader constitutional context.

Background

Concept 70 & Others v Cape International Holdings Ltd (considered in an earlier article on this blog here) involved subrogated claims brought on behalf of insurers that had settled employers’ liability claims arising out of workers’ exposure to asbestos between 1955 and 1980. The insurers sought contributions in respect of the settled claims from Cape, which was the manufacturer of asbestos products including Asbestolux and Marinite.

Unusually – and probably ‘uniquely in the history of asbestos litigation’ – the disclosure exercise involved putting to together extensive quantities of historical material and records relating to asbestos safety and regulation in a way which would have been disproportionate in a run-of-the-mill asbestos claim. This exercise had been justified by the high value of the claim.

At the conclusion of the trial, but before the judge was able to deliver a reserved judgment, a settlement was reached. According to the applicant (a non-party), it had been communicated to them that a term of the settlement was that many of Cape’s disclosure documents were to be imminently destroyed.

In Asbestos Victims Support Groups Forum UK v (1) Concept 70 Limited & Others, (2) Cape Intermediate Holdings Plc [2017] EWHC 811 Master McCloud granted a without notice application by the applicant to order that documents filed at court during the course of the compromised litigation concerned with asbestos exposure be preserved pending a further application for disclosure under CPR r.5.4C.

The parties in the compromised litigation were subsequently given permission to be heard at the substantive application hearing on condition that they might not seek any order for costs against the applicant (Dring v Cape Distribution Ltd and Others [2017] EWHC 2103 (QB)).

The instant application therefore concerned Mr Dring’s request for access to the trial bundles, statements of case, skeleton arguments, submissions and daily transcripts provided to the judge in the compromised litigation. The trial bundles included the totality of the parties’ disclosure documents whether or not deployed at trial – including, notably, a digital bundle of documents which had been made available but not referred to at trial.

Decision Part 1: Principle, Jurisdiction and Process

The first part of Master McCloud’s judgment dealt with the legal issues relating to matters of principle, jurisdiction and process.

She began by quoting Lord Diplock (who was himself quoting from Jeremy Bentham and Lord Shaw of Dunfermline) in Home Office v Harman [1983] AC 280 303C:

‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.’

 When delivering her conclusions on Part 1, Master McCloud referred extensively to Lord Reed’s judgment in the recent decision of R (On the Application of UNISON) v Lord Chancellor [2017] UKSC 51, noting that the ability of the public to access records of court proceedings ‘engages constitutional notions of open access to the courts in ways which are relevantly similar to but not identical with the direct form of access to court considered in UNISON. In particular:

 

• The right of access to court considered in UNISON is inherent in the rule of law.
• It seems to me that openness of justice, of the sort considered here fosters the scrutiny of the courts by the public, protects the integrity of the court process and assists the development of the law and legal knowledge. It thereby supports the practical effectiveness of the right of access to court.
• The courts do not merely provide a public service to the ‘users’ who appear before them. Rather, previous cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless.
• Although it is often desirable that claims arising out of alleged breaches of the law should be resolved by negotiation or mediation, those procedures can only work fairly and properly if they are back up by the knowledge on both sides that a fair and just system of adjudication will be available if they fail.’

 

The result was that ‘parties submitting to the jurisdiction do not have full sovereignty to determine simply by private agreement between themselves the extent to which the public may be made aware of any aspect of the proceedings before the court.’

The default position was the possibility that material deployed in court or filed upon the records of the court would form part of the corpus of material which may be deployed in other cases, used for legal advice, or be subject to discussion by academics, journalists or Parliament.

Master McCloud then considered the authorities on CPR r.5.4C(2) (on which the application was based) which provides that:

A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between a court and a party of another person.

Her conclusions were as follow:

• CPR 5.4C is the primary means by which the court’s common law power to allow access to documents to the public from the court record is administered but the common law is the master and not the servant of the rules.
• Where documents are filed on the record of the court then they fall within the scope of CPR 5.4C(2). (If documents are removed from court, Blue and Ashley v Times Newspapers Ltd [2017] EWHC 1553 (Comm.) may provide a basis for saying that the court can require them to be returned but in this instance the documents had not in fact been removed from court).
• Documents filed on the record of the court and which are read or treated as read in court are subject to a default position in favour of the principle of open justice if the applicant has a legitimate interest.
• Where the applicant has a legitimate interest then the court must still consider the balance exercise in relation to any harm to other parties’ legitimate interests when deciding whether to allow access.
• Documents on the records of the court which are not read or treated as read are subject to a more stringent test namely that there must be strong grounds for thinking that access is necessary in the interests of justice.
• Served documents not on the records of the court do not fall within rule 5.4C but may be disclosed under the court’s common law powers. Gio and Nestec support a narrow approach to exercising that jurisdiction where documents are sought which fall outside rule 5.4C. Blue and Ashley draws the scope of the power widely but also approaches their exercise cautiously.

 Master McCloud rejected Cape’s argument that the open justice principle was not engaged where a case had settled before judgment. She considered that the point had already been determined by Bean J in NAB v Serco [2014] EWHC 1255 when he commented that ‘[t]he public interest is not confined to cases where the court has given judgment and it is sought to see whether the underlying documents provide further illumination of the judgment. It may be just as significant to discover why a case settled.’

 Cape argued that, since the CPR at r. 39.5 referred to ‘bundles’ being filed, this did not imply that the documents within them were filed. But that point was given short shrift by Master McCloud: ‘[t]hat seems to me an unrealistic approach: bundles are simply collections of documents and when a bundle is filed necessarily so are the documents within it.’

However, a bundle made available only as a digital resource in court had not been filed since ‘the basic position as to filing at court is, absent a Practice Direction in accordance with rule 5.5, a paper exercise.’

 Master McCloud considered that the written submissions and skeleton arguments, which had been retained in court at the end of the trial and held together with the court files rather than being handed back to the advocates, had in the circumstances become documents filed on the records of the court for at least so long as they remained at court.

Once a document had been sufficiently deployed in court to give rise to the starting point of openness, the applicant still had to show a legitimate interest and thereafter to consider the balancing exercise in relation to the possible harmful effects to others’ legitimate interests. The scope of the legitimacy test was a broad one and encompassed –

• The promotion of academic consideration as to the science and history of asbestos and asbestolux exposure and production.
• Improving the understanding of the genesis and legitimacy of TDN13 and any industry lobbying leading to it in the 1960s and 1970s.
• Understanding the industrial history of Cape and its development of knowledge of asbestos safety.
• Understanding the industrial history of Cape and its development of knowledge of asbestos safety.
• Clarifying the extent to which Cape was or was not responsible for product safety issues arising from the handling of asbestolux boards.
• Assisting court claims and the provision of advice to asbestos disease suffers.

 

Decision Part 2: Standing, Specificity and Balancing

The second part of Master McCloud’s judgment considered the standing of the applicant, the specificity of the application and the balancing exercise between the competing interests involved.

She began by rejecting Cape’s argument that the initial application had been a nullity since the original applicant (the Asbestos Victims Support Groups Forum UK) had no legal personality: Mr Dring had since been substituted and the defect cured.

She also rejected Cape’s argument that the application was too vague. The broad classes of documents sought had been sufficiently identified and comprised, if more specificity were needed, ‘the ones presently occupying several metres of shelf space and a hard disk in my courtroom.’ A complex or detail-heavy approach to the request for documents would risk requiring an excessive use of precious court resources.

Master McCloud then moved on to the more difficult issue of the balancing exercise. By contrast to broad tone of her earlier quote from Lord Diplock, she began this section of the judgment by commenting that ‘[t]he constitutional right of access to a court would be unacceptably impaired if the act of going to court, perhaps having no choice other than to do so in some instances, necessarily entailed that every detail of every case was available to the public.’

 In cases involving trade secrets, intimate personal details, libels and falsehoods, for example, it could be seen how the court’s prime duty under the overriding objective to do justice would sometimes override the constitutional right to openness of court process.

However, Master McCloud noted the ‘valid concern’ of the applicant that directing the material in the compromised case not to be accessible by the public would risk the courts proceeding in future cases without the parties being in a position to draw that material to the judge’s attention when appropriate. This related closely back to the point that the courts were ‘not a private dispute resolution forum but rather they play a public role in informing other cases both as to law and procedure and… as to facts and knowledge in specialist areas.’

Cape’s argument that there was a public benefit in ensuring that settlements reached by the parties were upheld was met by the fact that means already existed to ensure that sensitive material could be ventilated in private rather than in public – it was telling that the whole trial took place without such orders being sought. The fact that the terms of the eventual settlement provided for confidentiality was not relevant since it was not for the parties to dictate to the court which documents could and could not be publicised following the conclusion of the case.

Cape’s offer to undertake to retain the documents so that they remained available as a target for disclosure applications in future cases did not go to the issue: open justice was aimed at scrutiny and understanding of court proceedings, decisions, process and settlement and the holding of judges to account; by contrast, disclosure did not by itself imply any degree of later public access and so could not satisfy this aim.

Finally, it was noted that Cape had not taken the opportunity to direct Master McCloud to any examples of specific harm to their interests which would be caused by the publication of specific documents or classes of documents sought.

The Order

Master McCloud therefore ordered disclosure of:

• The witness statements including exhibits
• Expert reports
• Transcripts
• Disclosed documents relied on by the parties at trial
• Written submissions and skeletons
• Statements of case to include requests for further information and answers if contained in the bundles relied on at trial

However, in relation to documents which are unfiled and undeployed in court – such as those on a digital bundle of documents made available but not referred to at trial – while the court had a common law power to direct disclosure, it was necessary to adopt a cautious approach: special circumstances were required before disclosure would be ordered.

In this case, there were no such special circumstances for ordering disclosure of the digital bundle and it would therefore be excluded from the disclosure order. The openness principle would only apply to documents which had played a role in the proceedings. The disclosure statements in the compromised proceedings were therefore also excluded on the basis that their disclosure would undermine the decision not to order disclosure of the contents of the digital bundle.

Permission to Appeal

Master McCloud addressed this of her own motion, holding that there was no real prospect of a successful appeal and no other good reason for an appeal. Permission was therefore denied. Master McCloud indicated that if an appeal were to be heard then it ought to be before the Court of Appeal due to the need for expedition in mesothelioma claims and the importance of the documents forming the basis of the judgment.

This post was written by Michael Rawlinson QC.

Given the number of different diseases with which it is associated, asbestos might reasonably be thought to be as versatile at killing the humans who inhaled it, as it was in meeting the perceived needs of British industry throughout the 20^th Century. Perhaps the most frightening of asbestos’ manifestations is mesothelioma: the cancer of the linings of the chest and peritoneum. Until recently swift death following diagnosis was almost inevitable. However, consultant chest physicians have begun to express excitement regarding new therapies called immunotherapy/biological therapies (referred to collectively here as “immunotherapy”) when they have been applied to mesothelioma victims.

Mesothelioma victims referred to the correct Oncologist will be told that whilst immunotherapy is not right for everyone, it could be that their Mesothelioma may be stabilised by immunotherapy. Usually such therapy will only be applied once first line chemotherapy has been undertaken; but only if at that stage the victim’s health status is still otherwise good and only if they can afford it, because such therapy is not available on the NHS.

If you talk to an oncologist about the likely immunotherapy treatments to be given to a mesothelioma victim, you will be told about a large number of potential drugs. So far the most expensive of these is pembrolizumab (Keytruda) at around £120,000 per annum. Results from trials are emerging all the time and one cannot know what the landscape will be in even 2 years time. So a person who is given Keytruda today and who, as a result, is alive in  2 years time, may be well enough to transfer onto another therapy which is unproven  today but which may by then be realised to yield great benefit.

There is a dilemma created for those advising both victims and insurers as a result of this medicine. Suppose you are acting for a victim who has just received a diagnosis and is very early in their treatment. Let us say that exposure and breach of duty are easily provable and all looks set fair for an early settlement. But what are you to do about immunotherapy? You cannot yet know whether the victim is suitable for such treatment and, even if they are, which drug(s) will be prescribed or at what cost or for how long?

Prima facie you have only two options: first to wait to see what is prescribed and then claim an interim payment for that amount or, second to guess. Neither is a very attractive option for either the victim or the lawyer. Equally unattractive to the insurer is an unfocussed claim for some estimated amount of damages (added without evidence) to every schedule of loss.

In recent months insurers have approached the problem by offering to make direct payments to the immunotherapy provider, on condition that the insurer’s own medico-legal expert has the right to say that the provision is not in the victim’s interest (and thereafter the insurer can seek a determination from the court that it may withdraw funding). There can be a place for such agreements but anyone who does so will need to satisfy themselves that two potential issues are being considered. First, that there are safeguards to prevent either the payer making deals with the provider over the head of the victim such that only a cheaper option is being paid for as opposed to a more expensive and experimental one which would otherwise be sanctioned by the treating oncologist if ‘money was no object’. Further, that there should be arrangements whereby the victim is informed when each payment is made so as to avoid any dispute arising between the insurer and the provider leading to the funds not being provided.

I was asked by Irwin Mitchell to look at this problem and it seemed to me that the best option was to seek to persuade insurers to enter into a Periodical Payment Order (“PPO”). Since a PPO is an open-ended commitment to make payments for as long as is needed and since an insurer could credibly argue that in its detail the situation we face neatly fits neither a stepped nor a variable PPO, why should any insurer enter into such an agreement voluntarily? The answer is that because such an agreement is, in the long run, a highly efficient method of dealing with the dilemma for insurers as well. If, upon proof by a Claimant that at the moment of settlement, there exists now a realistic chance that at some point in the future immunotherapy will be recommended, then an insurer who enters into a PPO agreement as part of an overall settlement acquires two very significant benefits:

• First, no case is ever delayed by waiting to see whether immunotherapy is provided and with what effect etc.
• Second, no payment is ever made by the insurer against the future risk that immunotherapy is to be provided if in fact no such immunotherapy is in fact never provided ie they will not have to add £50,000 to each claim to ‘buy off’ the risk of immunotherapy being provided at some nebulous point in the future.

Finally it might be recognised by insurers that there are two very powerful legal weapons lying in the hands of Claimants’ lawyers when one considers their ability to enforce payment from the tortfeasor for medical costs: The law is that, provided such treatment is recommended by a reputable relevant expert, then the cost of that treatment is recoverable even if it is unsuccessful. In reality, where the prize at stake is longer life or longer healthy life, then there will be very little short of the positively harmful which the Court will consider not have been reasonable to attempt. If a proposed treatment is reasonable then it is no defence for an insurer to say that it could either be obtained more cheaply in another way (Rialis) or that it is available on the NHS (s2(4) Law Reform (Personal Injury) Act 1948).

In a case in which I was instructed recently I was able to put the proposal of a PPO to an insurer. Last week the proposal was accepted. Our client in that case was Mr Scott. He wanted to keep the terms of his order which are not relevant to the PPO confidential and the Court has so ordered, but he did want his name attached to the draft model agreement and this was permitted by the Court: and so what follows is both a description of and the terms of a draft Scott agreement.

The essence of the agreement was as follows:

A Tomlin form of order was used. As usual, the interesting terms lay in the Schedule to the order.

• It was recited in the Schedule that there was accepted to exist now a realistic chance that at some stage in the future Mr Scott would require immunotherapy albeit no one could say when that time would be; which treatment would be given; for how long and at what cost.
• Irwin Mitchell would set up and administer a trust whose sole purpose is to receive and then pay to the provider the costs of immunotherapy provision (with associated expenses such as blood tests and scanning) as and when such payments were demanded by the provider and received from the insurer. In addition such travelling expenses as Mr Scott would incur would also be paid. This trust is to be administered at the insurer’s reasonable expense.
• The trigger for payments is the victim’s treating oncologist recommending immunotherapy. Once the insurers were made aware of that the trigger had occurred they will then pay £130,000 in quarterly instalments for as long as required. The figure alighted on was the figure for the provision of Keytruda. However a quid pro quo was agreed in that should the actual figure be less than that, a reverse indemnity would be provided (ie the IM Trust would repay to the insurer the money) and conversely should the treatment cost be higher then an additional ‘top up’ would be made by the insurer to the IM Trust. This would continue for as long as necessary but if the treatment stopped temporarily or otherwise changed the insurer would be informed and payments adjusted
• There was no future role within the agreement for any expert employed by the insurer. Thus there was no provision for second guessing or countermanding the treating oncologist’s recommendations. This was made clear by the following clause within the agreement: “For the avoidance of doubt the only ground upon which such objection can be taken by the Insurer is that the new sum does not actually represent the cost to be levied by the health provider to the Claimant. The Insurer shall not seek to argue that the continued provision of immunotherapy is rendered irrecoverable or unreasonable by reason of the fact or amount of the new sum”

Payments would cease at such time as either the treating Oncologist considered that immunotherapy should be stopped permanently or the patient sadly died. Any excess remaining in the Trust would be repaid to the insurers.

Any insurer who seeks to object that this agreement could not be ordered by the Court can be answered in one of three ways:

• The agreement does not in fact offend either the Damages Act 1996 nor CPR Part 41 nor yet the Damages (Variation of Periodical Payments) Order 2005/841;
• Alternatively, the Court could without fear of reasoned contradiction impose upon a defendant a variable PPO which was triggered by the worsening of the condition represented by the advance of the cancer after front line chemotherapy had been administered and at a fixed figure equivalent to the most expensive treatment envisaged: the model agreement we entered into is a far more benevolent regime to the insurer than such an approach.
• Finally, if the insurers really wish, victims can simply settle all parts of the claim except that for immunotherapy, adjourn and then make multiple applications for interim payments as and when for as long as they live; and that would not be a happy solution for anyone. Our agreement with the insurers in his case has provided peace of mind to the victim that any immunotherapy treatment will always be paid for as and when he needs it.

There is one final issue to consider. If the present agreement becomes widely adopted then there will grow a divide between those victims who possess good claims for compensation (and hence who can obtain immunotherapy via the Scott model agreement such as has been entered into in this case) and those victims who do not have such claims and are limited to making applications under the Diffuse Mesothelioma scheme (who cannot). Thus we quickly reach the highly uncomfortable position that whether a victim lives 12 months or 5 years may depend on the whether or not an insurer can be traced for his employment: a happenstance which is wholly out of the victim’s control and which essentially amounts to a lottery on life. Since the intention of the scheme was to award average damages to its applicants, the time has come to consider whether the scheme should also be expanded to include the facility to enter into such agreements as were entered into in this case. This will require additional capital of course.

This post was written by David Green.

HHJ Platts, sitting as a judge of the High Court, dismissed a claim for a contribution from the Part 20 Claimant (X) against a Part 20 Defendant (Y), on the grounds that X could not establish that the deceased had been exposed to asbestos while employed by Y.

Clifford Ingleton died of mesothelioma on 16 April 2014. His widow, Eileen, succeeded in obtaining an order for £180,000 in damages and costs against X, one of Mr Ingleton’s former employers. X sought a contribution from Y, for whom Mr Ingleton had worked for a period in the 1970s.

No witnesses were called in proceedings: Mr Ingleton made a witness statement on 1 July 2013, approximately nine months before his death, where he gave his employment history and some details of his occupational exposure to asbestos. There was also expert medical evidence on both sides of the Part 20 claim, and expert evidence from occupational hygienists who examined Y’s premises and were in substantial agreement about the likely level of occupational exposure there.

In his witness statement, Mr Ingleton had said that Y’s premises consisted of vaults whose walls and ceilings were lined with worn asbestos sheeting: as he collected items using a sack barrow, he was unable to keep from knocking into walls and causing the asbestos lining to crack and break up, releasing asbestos dust into the confined vault atmosphere.

This was, however, contradicted by the expert occupational hygienists: they found asbestos ceiling tiles (which included, in various places, tiles consisting of both chrysotile and crocidolite) in place in the vaults in 2006 and 2007, but no evidence of asbestos surfacing on the vaults’ walls, which were of a brick or block construction and thus largely fireproof without asbestos cladding. They agreed that, if asbestos wall coverings had been removed at some point between Mr Ingleton’s employment and 2006, it was most likely that the ceiling asbestos would have been removed at the same time.

On balance of probabilities, the experts’ agreed conclusion was that the walls of the vaults had never been covered with asbestos, and HHJ Platts found this as a fact.

This provided a difficulty for X, who nevertheless sought to establish that Mr Ingleton had been exposed to asbestos during his employment with Y as a result of making contact with ceiling tiles. X relied on photographs in the vault surveys showing that goods stored in the vaults were often stacked close to the ceiling, and that it was likely that Mr Ingleton would have disturbed ceiling tiles as well as the walls (despite the fact that he had only mentioned the walls, and not the ceilings, in his witness statement).

The experts agreed that, if Mr Ingleton had indeed disturbed the ceiling tiles, his exposure was “probably relatively low”. the ceiling tiles were described in the initial surveys as being almost exclusively of low or very low risk.

Given the evidence, the judge considered that there was no evidence that Mr Ingleton had disturbed the ceiling tiles: although there was some evidence that items were sometimes stacked near to the ceiling, this was not enough to draw an inference that the ceiling was disturbed. There was consequently not enough evidence that Mr Ingleton had been exposed to asbestos during his time with Y: a mere potential or possibility was not enough. X thus failed to establish that Y was a “responsible person” within the meaning of Section 3 of the Compensation Act 2006.

The judge added obiter that, if he had found exposure, he would not have accepted Y’s submission that there was insufficient evidence for an apportionment to be made: he considered this a jury question (quoting Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421). Doing the best he could, the appropriate apportionment would have been 20% to Y.

This case is a salutary reminder to mesothelioma defendants considering the possibility of seeking contributions from other employers: although the mesothelioma victim’s evidence may well point to the possibility of exposure from other employers, this evidence must be treated with caution. Particularly when the victim is deceased and their evidence is not available to be tested in cross-examination (as in this case), but also for living mesothelioma cases, it is very likely that any expert or survey evidence available to the court will be preferred where it contradicts the victim’s recollections, which are inevitably made many decades after exposure took place.

 

The post below is by Aliyah Akram. It is about the case of David Myall v (1) Ministry of Defence (2) Serco Ltd [2017] EWHC 1752 (QB), in which the claimant’s request for a split trial to allow for the possibility of his being assessed for immunotherapy treatment was refused by Master Giddens in the absence of any medical evidence in support of such treatment. Mrs Justice May upheld the Master’s decision on appeal.

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The recent case of Myall is a reminder to practitioners that although there is a sound legal basis for the recovery of the costs of immunotherapy treatment, care must be taken to ensure a sound evidential basis behind any such claim.

The claimant applied for a split trial to allow for the possibility of his being assessed for immunotherapy treatment.  The application appears to have been unsupported by any medical evidence and was made solely “on the strength of an unsupported assertion by the Claimant’s solicitor”.  It is not clear from the judgment how much time remained before the original trial, but it appears that there was insufficient time for the claimant to have undergone an assessment as to his suitability for immunotherapy treatment before trial.

The basic principle of restitutio in integrum or full compensation encompasses recovery of damages for expenses incurred, or to be incurred, by the victim as consequence of injury. In Jones v Royal Devon NHS Trust [2008] EWHC 2706 (QB) it was held that in relation to medical expenses the Court must “apply the touchstone of reasonableness and principles of remoteness and proportionality”.

Najib v John Laing [2011] EWHC 1016 (QB) shows just how far this may be stretched in practice. The court allowed a mesothelioma sufferer to recover the cost of “photodynamic therapy”.  There was no objective medical justification for this so-called treatment and counsel for the claimant, Harry Steinberg QC, had not contended otherwise. But there was some evidence from the treating clinician that it had been reasonable for the claimant (who was frightened of the side-effects of chemotherapy) to try it as a last resort. Accordingly, even though (a) the claimant did not contend that the treatment had any clinical value and (b) it had been wholly unsuccessful, it had not been unreasonable for this claimant to undertake this therapy, and so Nicola Davies J held the costs were recoverable in full.

In Myall, Mrs Justice May refused even to consider the application for a split trial because the claimant had failed to provide any medical evidence at all in support of such treatment. It remains to be seen whether the trial judge will be more sympathetic in allowing the claimant to bring his full claim.

Practitioners in mesothelioma cases need to give thought to gathering evidence in support of a potential immunotherapy claim as soon as they receive instructions. Such evidence, particularly at a case management level, need not be extensive but should highlight the potential suitability of a claimant for immunotherapy treatment and the possibility that it might prolong a claimant’s life expectancy.

The new wave of immunotherapy appears to be one of the most exciting developments in oncology in a generation. While it is easy to be swept up in this excitement surrounding immunotherapy – and to assume that the court will share this enthusiasm – the need for such treatment is not self-proving. The courts are highly likely to be sympathetic, but they need something to work with.

On 27 July 2017, the Court of Appeal gave judgment in The Department for Communities and Local Government v Blackmore [2017] EWCA Civ 1136.

The facts of the case were that Mr Blackmore sustained heavy occupational asbestos exposure between 1966 and 1986. He had smoked cigarettes since he was 14 years old. In 2005 he cut down from smoking around 20 a day to around 12 per day, but he never gave up completely.

He died of lung cancer on 28 October 2010 at the age of 74. The post-mortem indicated a quantity of total retained asbestos fibre count above the level at which the risk of contracting lung cancer doubles.

Causation and primary liability were conceded. The case came before HHJ Cotter QC on the issue of contributory negligence, which was assessed at 30%. This apportionment was upheld by the Court of Appeal.

Michael Rawlinson QC has written a paper analysing this case in the context of asbestos lung cancer litigation generally, and giving practical advice to practitioners in this area. You can read it by clicking here.