SARAH WITHAM (as Executrix of the Estate of Neil Witham (Deceased)) v STEVE HILL [2020] EWHC 299 (QB)

Steven Snowden QC and John Paul Swoboda appeared on behalf of the Claimant in this matter.

Neil Witham died at the age of 55 from mesothelioma leaving behind his wife (the Claimant) and his two foster children. At the heart of the dispute between the parties in this case was the width and breadth of the Fatal Accidents Act 1976 and the proper method to quantify the dependency if it fell within the scope of the Act.

The matter came before Mr Anothony Metzer QC, sitting as a Deputy High Court Judge, to determine the issue of quantum. Neil (the deceased) and Sarah (the Claimant) had, long prior to Neil’s development of mesothelioma, decided to foster two children, a biological brother and sister (A and B) who both had disorders on the autistic spectrum. Although A and B attended school it was necessary for one parent to look after the children as their sole occupation (and this was a condition of the fostering agreement with the local authority). Neil was to be the carer so that Sarah could pursue her rewarding and challenging career as a specialist paediatric diabetes nurse. As a result of Neil’s untimely death, caused by the Defendant’s negligence, Sarah gave up work so as to look after her foster children. As a result, she lost her career. The principle question for the court was whether this loss was a dependency within the meaning of the Fatal Accident’s Act with it being argued for the Claimant that there was a recoverable dependency (albeit with unusual factual circumstances) whereas that Defendant argued the claim advanced was beyond the scope of the Act and was an illegitimate attempt to bypass the fact that the foster children were not recognised dependants as defined in the Act.

Mr Metzer QC, having considered the authorities cited, accepted that section 3(1) of the Act, which defines recoverable dependency, was“a wide gateway and if the dependant can establish that pecuniary loss resulted from the death then that would meet the requirements…”. He further found that the dependency was the Claimant’s and was not an illegitimate ‘relabelling’ of A and B’s irrecoverable dependency. In this regard he accepted that even though A and B were involved in the dependency (as the care Neil would have provided was to them) it was nevertheless the Claimant’s loss and not A and B’s: the children in fact suffered no loss as their foster mother (the Clamant) replaced the care provided by their deceased foster father, and that when looking at the reality of the situation the court was entitled to consider a pecuniary loss suffered by all members of the family even though some of the members of the family might not be recognised dependants. Finally the judge rejected the submission that the Claimant’s loss was a loss ‘incidental’ to the relationship of husband and wife as he found Sarah and Neil did not foster A and B for business reasons, nor for the state funds which were paid upon fostering, but rather as a family decision, which is to say it was a decision they made as a husband and wife acting in the capacity as a husband and wife.

When valuing the dependency, the judge decided to use the cost of replacement care of the services Neil would have provided, rather than the Claimant’s lost earnings, as the measure of the loss. It was in issue whether the dependency should be valued by adopting the commercial rate for replacement care or whether there should be a 25% discount to the commercial rate. The judge accepted that the situation under the Fatal Accidents Act is different to that where an injured Claimant receives care on a gratuitous basis from family or friends. The former involves a valuation of the services provided by the deceased, which is to be done by reference to the commercial rate and does not require the valuation of the services now provided (which is what is done in a PI claim where there is a discount typically of 25% where the care is provided gratuitously). The judge found support for this approach in the authorities, particularly Knauer v MOJ [2014] EWHC 2552 and Daly v General Steamship Navigation [1981] 1 WLR 120. Houscroft v Burnett [1986] 1 All ER 332 CA was distinguished as a) Daly (supra) was not cited and b) it was a PI case to which different principles applied.

On this basis the learned judge made an award of £929,857.22. The Defendant was refused permission to appeal by the judge. It is not known whether the Defendant will seek to renew their application for permission to appeal before the Court of Appeal.

The Asbestos Industry Regulations 1931 and s. 47/63 Factories Acts

This post is by James Beeton.

It is commonly pleaded by claimants in asbestos litigation that their work in a factory was covered by both the Asbestos Industry Regulations 1931 and s. 47/63 of the Factories Acts. I have never seen a defence question the assumption that both sets of statutory provisions can in principle cover the same work. But that assumption may not be right.

This suggestion is of limited practical importance, since a defendant who would have been liable under s. 47/63 Factories Acts will usually also be liable under the Asbestos Industry Regulations 1931. But it will be relevant in at least one situation: namely, where a case falls within the exemption from liability in the Preamble to the Asbestos Industry Regulations 1931, which applies where no person was employed for eight hours or more in any week in the part of the factory in which the asbestos processes were carried out.

Franklin v The Gramophone Company Ltd [1948] 1 KB 542 dealt with the Grinding of Metal (Miscellaneous Industries) Regulations 1925. These were originally made under s. 79 Factory and Workshop Act 1901 but were continued in force under s. 159 of the Factories Act 1937. In this respect, their legislative history mirrors the Asbestos Industry Regulations 1931.

The Grinding Regulations covered listed processes involving the grinding and glazing of “metals”, a term which was not defined (but which did not include “gold, platinum, or iridium”). Similarly, the Asbestos Industry Regulations 1931 covered processes listed in the Preamble involving “asbestos”, defined in broad terms as “any fibrous silicate mineral, and any admixture containing any such mineral, whether crude or crushed or opened.”

Both sets of Regulations applied to factories and workshops to which the Factory and Workshop Act 1901 (and later, the Factories Act 1937) applied and provided protections against exposure to dust generated in the processes they covered.

But, in Franklin it was held that the general protection of s. 47 Factories Act 1937 was superseded by the provisions of the Grinding Regulations. Scott LJ said at pp. 551–552:

“The conclusion seems to me inescapable that the regulations No. 904 must of necessity be construed as saying to the occupier of any factory where relevant processes were conducted: “Carry these regulations out honestly and carefully and you will have complied with all the statutory requirements incumbent on you and your factory.” If so, their particular provisions must supersede the general provisions of s. 47 and be substituted for them.”

Evershed LJ said at p. 560:

“As a matter of the construction of the regulations, deemed to be made by virtue of s. 60, do they so “modify” the terms of s. 47 as to constitute an exhaustive code for those factories to which the regulations are expressed to be applicable, namely, all factories in which the grinding of metals is carried on? In my judgment, Yes.”

This meant that the defendant was able to take advantage of an exemption from liability contained in the Grinding Regulations which would not have been available had the s. 47 duty applied.

This was not an outlier decision. The same conclusion had also been reached in respect of the alleged modification of the general duty to fence “every dangerous part of any machinery” in s. 14(1) of the Factories Act 1937 by reg. 10 of the Woodworking Machinery Regulations 1922, which only prescribed a certain form of fencing for circular saws. In Miller v William Boothman & Sons Ltd [1944] KB 337, the Court of Appeal held that the introduction of the Woodworking Regulations had superseded the absolute obligation in s. 14(1).

Special regulations may preserve the application of general duties under the Factories Act 1937 where they do this expressly. So, in Quinn v Horsfall & Bickham Ltd [1956] 1 WLR 652, the Horizontal Milling Machines Regulations 1928 had a proviso saying that they did not prejudice the application of s. 10 of the Factory and Workshop Act 1901 (which became the general duty to fence dangerous machinery in s. 14(1) of the Factories Act 1937). This meant that the relevant duty under the 1937 Act was not modified by the Regulations.

A parallel may be drawn here between the substitution provisions of reg. 3(3) of the Asbestos Regulations 1969, the proper construction of which led to the conclusion that only one limb of the general duty in s. 63 of the Factories Act 1961 had in fact been superseded in Heynike v 00222648 Ltd [2018] EWHC 303 (QB). But there is no equivalent proviso in the Asbestos Industry Regulations 1931 (nor was there in the Grinding Regulations).

Although special regulations may modify the duties imposed by the Factories Act 1937, they only do so to the extent that they deal with a specific danger. In Benn v Kamm & Co Ltd [1952] 2 QB 127, the claimant was injured by a machine covered by the Horizontal Milling Machine Regulations 1928. But those Regulations only covered the cutters of the machine and not the part that had injured him. This meant that the general duty to fence off dangerous machinery under s. 14(1) Factories Act 1937 continued to apply to part of the machine that had injured him. Similarly, the exclusionary effect of the Grinding Regulations only provided an exhaustive code “for those factories to which the regulations are expressed to be applicable, namely, all factories in which the grinding of metals is carried on”. The Asbestos Industry Regulations 1931 only covered “all factories and workshops or parts thereof” in which the listed processes involving asbestos were carried on. In principle, they would not therefore cover (i) other parts of the factory or (ii) any other processes involving asbestos. These would still be covered by s. 47/63.

In conclusion:

  1. Section 47/63 does not apply to any process covered by the Asbestos Industry Regulations 1931; but
  2. Section 47/63 does not add much (if anything) to the protections in the Asbestos Industry Regulations 1931;
  3. The only obvious exception is where the Asbestos Industry Regulations 1931 provide a gap in protection which would not exist under s. 47/63 (such as the 8-hour exemption from liability);
  4. Other parts of the factory and other processes involving asbestos will still in principle be covered by s. 47/63.

Shipyards, Docks and Asbestos: The Statutory Duties

This post was written by James Beeton.

Introduction

  1. Much industrial activity giving rise to exposure to asbestos occurred in docks and shipyards. Former dock workers therefore represent a significant number of those now wishing to bring claims for asbestos-related illness. In some cases, it will be possible to bring a straightforward common law claim in negligence against an occupier of the relevant area or the dock workers’ employer (or quasi-employer: see Rice v Secretary of State for Trade and Industry [2007] EWCA Civ 289).

 

  1. But this can raise potentially difficult issues of foreseeability of harm and the defendant’s knowledge of the risks. The alternative is to bring a claim for breach of statutory duty. The stricter nature of many of these duties means that the difficulties that can arise in common law claims may be sidestepped. But the question of precisely which duties applied historically to the different parts of docks and shipyards is a complicated one. In summary, the position is this.

 

Position before 31 March 1961

 

Location Asbestos Industry Regulations 1931 Section 47/63 Factories Acts
Shipyards and dry docks used for shipbuilding Yes (including works to or on the ship) Yes (including works to or on the ship)
Other docks, wharves, and quays Yes No
Processes involving ships in harbour or wet dock Yes No

 

Position from 31 March 1961

 

Location Asbestos Industry Regulations 1931 (until 14 May 1970) Section 47/63 Factories Acts (until 1 October 1989) Shipbuilding and Ship-repairing Regulations 1960 (until 1 October 1989) Asbestos Regulations 1969 (from 14 May 1970 until 1 March 1988)
Shipyards and dry docks used for shipbuilding Yes (including works to or on the ship) Yes (but not works to or on the ship) Yes (works to or on the ship only) Yes
Other docks, wharves, and quays Yes No No Yes
Processes involving ships in harbour or wet dock Yes No Yes (works to or on the ship only) Yes

 

 

Pre-1961: “full cover” for shipyards and dry docks

 

  1. Section 151 of the Factories Act 1937 contains the general definition of the expression “factory”. It also specifically lists certain premises that will automatically qualify as a “factory” for the purposes of the Act. One of these is:

“any yard or dry dock (including the precincts thereof) in which ships or vessels are constructed, reconstructed, repaired, refitted, finished or broken up” (and in which persons are employed in manual labour).

Since these premises are treated as factories in the full sense, work carried out in them was in principle subject to the key s. 47 duty to take all practicable measures to prevent the inhalation of any dust produced in a substantial quantity. Another effect of s. 151 was that regulations covering “factories” as defined by the Factories Act 1937 applied to these areas. An example is the Asbestos Industry Regulations 1931.

 

  1. In fact, the 1931 Regulations also applied to shipyards before the passage of the Factories Act 1937. This is because the 1931 Regulations were passed pursuant to the Secretary of State’s power to make regulations for dangerous trades under s. 79 of the Factory and Workshop Act 1901 and they applied to “factories” as defined by the 1901 Act. The old 1901 Act specifically included within its definition of a factory:

 

““Shipbuilding yards,” that is to say, any premises in which any ships, boats or vessels used in navigation are made, finished or repaired” (see s. 149 and Schedule 6, Part II, (25)).

 

  1. However, the position for shipyards and dry docks used for shipbuilding changed following the passage of the Shipbuilding and Ship-repairing Regulations 1960 (discussed below).

 

Pre-1961: “partial cover” for other docks, wharves, quays, and ships

Duties

  1. The Factory and Workshop Act 1901 and the Factories Act 1937 Act specifically provided that certain premises were to be treated as factories and that certain processes were to be treated as having been carried out in a factory. However, the duties which applied in these listed premises were limited (insofar as relevant) to the provisions in the relevant Parts of the Acts “with respect to Regulations for dangerous trades” or “with respect to special regulations for safety and health” respectively.

 

  1. Such regulations were dealt with by s. 79 and s. 60 respectively of the two Acts. These empowered the Secretary of State to make special regulations for health and safety. As mentioned above, the Secretary of State had used his power under s. 79 of the Factory and Workshop Act 1901 to make the Asbestos Industry Regulations 1931. However, the key duty to prevent the inhalation of dust contained in s. 47 of the Factories Act 1937 Act, which appears in the same “Part” of that Act as the Secretary of State’s power in s. 60, is notspecifically mentioned in the same way as the regulation-making power in s. 60. This means that the s. 47 duty did not applyto the premises treated as factories which are listed below.

 

  1. So, what exactly did apply to those premises? With effect from 1 July 1938, the Asbestos Industry Regulations 1931 were to be treated as if they had been passed under the 1937 Act. The relevant power being contained in s. 60, this means that the 1931 Regulations did apply to the premises listed below. Further regulations made under the s. 60 power (or its successor at s. 127 of the Factories Act 1961) include the Construction (General Provisions) Regulations 1961, the Construction (Health and Welfare) Regulations 1966 and the Asbestos Regulations 1969. These regulations also applied to the premises listed below. On the other hand, the Building (Safety, Health and Welfare) Regulations 1948 specifically provided that they did not apply to docks, harbours, bridges and tunnels (see reg. 2(1)).

 

Position between 1931 and 1937: docks, wharves, quays, and ships

 

  1. Section 104 of the Factory and Workshop Act 1901 provided that the following were to be treated as included in the word “factory” for the purpose of triggering the limited duties set out above:

 

  • Docks;
  • Wharves;
  • Quays;
  • Warehouses; and
  • All machinery or plant used in the process of loading or unloading or coaling any ship in any dock, harbour or canal.

 

The person whose workmen used the machinery or plant, or who had occupation of the relevant area, was to be treated as the occupier of the “factory”.

 

Position post-1937: docks, wharves, and quays

 

  1. Section 105(1) of the Factories Act 1937 (and s. 125 of the 1961 Act) provided that the limited duties would apply to listed premises as if they were factories and the person “having the actual use or occupation of it or of any premises within it or forming part of it” would be treated as if they were “the occupier of a factory” for the purposes of that Act. The premises are:

 

  • Docks;
  • Wharves;
  • Quays;
  • Warehouses belonging to the owners of the dock, wharf or quay;
  • Any line or siding used in connection with and for the purposes of the dock, wharf or quay and not forming part of a railway or tramway); and
  • Every other warehouse (not forming part of a factory) in or for the purposes of which mechanical power is used.

 

  1. Pursuant to sections 107 and 108 of the 1937 Act (and s. 127 of the 1961 Act), the above duties also applied to listed processes involving docks and related premises, specifically “the construction, structural alteration or repair (including re-pointing and re-painting) or the demolition of any dock, harbour, inland navigation, tunnel, bridge …” (see the definition of “works of engineering construction” at s. 152(1) of the 1937 Act and s. 176(1) of the 1961 Act).

 

Position post-1937: ships

 

  1. Section 105(2) (and s. 125 of the 1961 Act) adopted a slightly different approach, already employed in the Factory and Workshop Act 1901, in stating that merely carrying out certain processes relating to ships would be treated as having occurred in a factory, with “the person who carries on those processes” being treated as the occupier of a factory. The processes were: the loading, unloading, or coaling of any ship. To qualify, these processes had to take place in “any dock, harbour or canal”. Any machinery or plant used in the processes would be treated as machinery or plant in a factory.

 

  1. Similar provision was made by s. 106(1) (and s. 126 of the 1961 Act) in respect of work carried out in “constructing, reconstructing, repairing, refitting, painting, finishing or breaking up a ship or in scaling, scurfing or cleaning boilers … in a ship, or in cleaning oil-fuel tanks or bilges in a ship”. These works would only be covered if they took place “in a harbour or wet dock”. Where they did, “the ship shall be deemed to be a factory, and any person undertaking such work shall be deemed to be the occupier of a factory.”

 

  1. But note that there is a specific exception at s. 106(2) (and s. 126(3) of the 1961 Act) where the processes listed in s. 106(1) were carried out “by the master or crew of a ship or done on board a ship during a trial run.”

 

Post-1961: impact of the Shipbuilding and Ship-repairing Regulations 1960

 

No s. 47 Factories Act 1937 protection for work to or on ships

 

  1. The position changed with effect from 31 March 1961, following the passage of the Shipbuilding and Ship-repairing Regulations 1960. Pursuant to reg. 2(1), these covered:

 

  • All works carried out in any operations of a shipyard or dry dock in respect of ships or vessels, whether or not the shipyard was part of a harbour or wet dock. The Regulations used a similar definition to that in s. 151 of the 1937 Act (by reg. 3(2)) but did not cover yards or docks where the ships were broken up.
  • Any work carried out in any of the operations in a harbour or wet dock in the case of ships (but not other vessels) excluding, amongst other things, work done by the master or crew of the ship.

 

The Regulations therefore did not apply to work on asbestos-lagged pipes whilst at sea (Oldman v DEFRA[2017] 4 WLUK 388 at [4]).

 

  1. Regulations 4(1) and 3(2) also limited the scope of the Regulations by providing that the duties were imposed on employers but only when they were undertaking the following processes:

 

“in relation to a ship or vessel, its construction, reconstruction, repairing, refitting, painting and finishing, the scaling, scurfing or cleaning of its boilers (including combustion chambers or smoke boxes) and the cleaning of its bilges or oil-fuel tanks or any of its tanks last used for carrying oil.”

 

This meant that the duties applied only to work being done to or on the ship or vessel. The Asbestos Industry Regulations 1931, which were still in force, continued in principle to apply to the same work at this time until their revocation and replacement by the Asbestos Regulations 1969 (since, unless they expressly said otherwise, the 1960 Regulations were in addition to and not in substitution of any requirements imposed by or under the 1937 Act: reg. 2(4)).

 

  1. However, a key effect of the 1960 Regulations was that work done to or on ships in shipyards and dry docks was no longer subject to the totality of protections under the 1937 Act. The s. 47 duty was expressly replaced with a new duty at reg. 53(1) to take all practicable measures to protect against the inhalation of dust “of such a character and to such extent as to be likely to be injurious” where the dust was given off in connection with any process carried out on board, in, or on the outside of, a vessel. Note, however, that the s. 47 duty continued to apply to work carried on in the other parts of the shipyard where it was not being done to or on the ship itself. The reg. 53(1) duty remained in force until 30 September 1989 when it was repealed by the Control of Substances Hazardous to Health Regulations 1988. However, it was effectively superseded by the Asbestos Regulations 1969 from 14 May 1970.

 

Specific duties concerning asbestos processes

 

  1. The reg. 53(1) duty, which imported a requirement of foreseeability of harm, was in fact less strict than the s. 47 duty it replaced – a surprising (perhaps unique) example of a decrease in protections available for workers exposed to dust. But that decrease in generic protection was to an extent mitigated by the introduction of specific duties to provide breathing apparatus for listed types of work with asbestos set out at reg. 76 (at least until this provision was largely revoked a few years later by the Asbestos Regulations 1969). These often overlooked new duties in respect of the listed asbestos processes did not require foreseeability of harm, except for the last one. The works covered by reg. 76 were:

 

  • the application of asbestos by spraying;
  • breaking down for removal of asbestos lagging;
  • cleaning of sacks or other containers of asbestos;
  • cutting of asbestos material by portable power saws; and
  • scaling, scurfing, or cleaning of boilers and other named types of plant where the person is exposed to dust of a character and extent likely to be injurious or offensive.

 

Additional protections for “young persons”

 

  1. It is important to be aware that the narrowly defined category of “young persons” were subject to additional protections under the Regulations. Regulation 77 provided that young persons could not be employed in any of the asbestos processes covered by reg. 76. The 1960 Regulations also provided for supervision requirements in relation to all operations for persons under 16 (at reg. 80(2), until this was revoked on 16 January 1990).

Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38

This blog is by James Beeton.

This morning, Lady Hale handed down the Supreme Court’s judgment in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38. The decision contains a detailed analysis of the court’s power to allow third parties access to court documents under the constitutional principle of open justice. However, the outcome is also of great practical significance for practitioners involved in claims for asbestos-related injury against the Cape group of companies (and, indeed, many other defendants).

Background

In January and February 2017, Picken J heard evidence in a six-week trial under the name Concept 70 v Cape International Holdings Ltd. The trial involved proceedings brought against Cape by insurers who had written employers’ liability policies for employers. The employers had paid damages to former employees who had contracted mesothelioma in the course of their employment. The employers, through their insurers, then claimed a contribution from Cape on the basis that the employees had been exposed at work to asbestos from products manufactured by Cape. After the trial had ended, but before judgment was delivered, the claims were settled.

The Asbestos Victims Support Groups Forum UK then made an application under CPR r. 5.4C, which deals with third party access to the “records of the court”, with a view to preserving and obtaining copies of all the documents used at or disclosed for the trial, including the trial bundles and the trial transcripts. The Forum considered that the disclosure was likely to have significant implications for asbestos-related claims involving the Cape group of companies, the provenance and impact of TDN 13, and broader historical knowledge arguments in respect of the asbestos industry as a whole.

First Instance

After a three-day hearing, Master McCloud held in Dring v Cape Distribution Ltd [2017] EWHC 3154 (QB) that she had jurisdiction to order that a non-party be given access to all the material sought. She therefore ordered that Mr Dring (acting on behalf of the Forum) should be provided with the hard copy trial bundle, including the disclosure documents in the parties’ core bundle, all witness statements, expert reports, transcripts and written submissions.

Court of Appeal

Cape successfully appealed this order to the Court of Appeal ([2018] EWCA Civ 1795). The Court of Appeal held that the “records of the court” for the purpose of the discretion to allow access under CPR r. 5.4C(2) were much more limited than the Master had ordered. They would not normally include trial bundles, trial witness statements, trial expert reports, trial skeleton arguments or written submissions, or trial transcripts.

The court had an inherent jurisdiction to permit a non-party to obtain certain further documents. But, importantly, there was no inherent jurisdiction to permit non-parties to obtain trial bundles or documents referred to in skeleton arguments or written submissions, or in witness statements or experts’ reports, or in open court, simply on the basis that they had been referred to in the hearing.

The Court of Appeal ordered, in summary:

  1. That the court should provide the Forum with copies of all statements of case, including requests for further information and answers (apart from those listed in an Appendix to the order);
  2. That Cape should provide the Forum with copies of witness statements, expert reports and written submissions (listed in a further Appendix to the order); and
  3. That Picken J (or some other High Court Judge) should decide whether any other document sought by the Forum was properly accessible on the basis that confidentiality had been lost under CPR r. 31.22 and the judge had read or been invited to read to read it, or that it was necessary for the principle of open justice (on the limited understanding of the court’s inherent jurisdiction set out above).

Supreme Court

Both parties appealed to the Supreme Court. Cape argued that the Court of Appeal did not have jurisdiction to make the order that it did. The Forum argued that the court should have made a wider order under CPR r. 5.4C(2).

Lady Hale, who delivered the judgment of the Supreme Court, disagreed with both parties. Not only did the Court of Appeal have jurisdiction to make the order that it did, but it also had jurisdiction to make a wider order if it were right so to do. On the other hand, contrary to the submission of the Forum, the basis of making any wider order was the court’s inherent jurisdiction in support of the open justice principle, and not CPR r. 5.4C(2).

Lady Hale considered that the open justice principle applied to all courts and tribunals exercising the judicial power of the state. It had two purposes: (i) to enable public scrutiny of the way in which courts decide; (ii) to enable the public to understand how the justice system works and why decisions are taken. The latter was particularly important given shift in modern times to reliance on purely written evidence and arguments.

The CPR were not exhaustive of the circumstances in which non-parties could be given access to court documents: they were a minimum in addition to which the court had to exercise its inherent jurisdiction under the constitutional principle of open justice.

Pursuant to that principle, the default position was that the public should be allowed access not only to the parties’ written submissions and arguments, but also to the documents which had been placed before the court and referred to during the hearing.

However, it was also necessary to balance the public interest in allowing access with other countervailing considerations, such as any risk of potential harm caused by the disclosure and any contrary practical considerations. “In short,” said Lady Hale at [47], “non-parties should not seek access unless they can show a good reason why this will advance the open justice principle, that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate.”

Since Cape had not attacked the Court of Appeal’s order on its merits, the Supreme Court ordered that the Court of Appeal’s order for access to the various documents set out above would stand, but that, instead of (3) above, the case would also be sent back to a High Court judge (again, preferably Picken J) to determine whether the court should require Cape to provide copies of any other documents in accordance with the broader understanding of the open justice principles set out by the Supreme Court.

The Court of Appeal judgment therefore represents a “baseline” against which permission for access to further documents can (and no doubt will) be sought. The Supreme Court judgment is not the end of the road, but requires the High Court to consider whether further access is required pursuant to the open justice principle as described by Lady Hale. Asbestos practitioners would be well-advised to keep an eye on these proceedings once they are referred back to the High Court. It will be of significant interest to see which (if any) further documents are released.

Helm v (1) William Kenyon & Sons Ltd (2) Somewatch Ltd [2019] EWHC 1108 (QB)

This blog post is by Helen Waller. In it, she explains the recent decision of Mr Justice Turner, in which he allowed the Second Defendant’s appeal of a Master’s decision to enter judgment against it at a show cause hearing. An approved transcript of the ex tempore judgment is now available and it can be viewed here.


The show cause procedure is a feature of Practice Direction 3D which applies to mesothelioma claims. It is intended to identify at an early stage those cases in which a defendant has no reasonable prospect of maintaining a defence. Pursuant to paragraph 6.2 of the Practice Direction, at the first case management conference a defendant will be expected to show cause why a judgment on liability should not be entered against it.

It was this exercise of ‘showing cause’ that was the subject of an appeal before Mr Justice Turner in the case of Helm v (1) William Kenyon & Sons Ltd (2) Somewatch Ltd [2019] EWHC 1108 (QB).

At a show cause hearing before Master Davison, judgment was entered against both Defendants to the claim. The Second Defendant appealed against this decision. The First Defendant did not.

Turner J allowed the Second Defendant’s appeal, primarily on the basis that the Master had made an “evident mistake” in relation to the Claimant’s exposure to asbestos dust from his use of Caposite.

The Claimant alleged that was he exposed to asbestos dust from Caposite in the course of his employment with the First Defendant, but it was not apparent on the face of his written evidence that he made the same allegation in relation to the Second Defendant. However, it was clear that the Master had assumed that the Claimant did allege exposure to Caposite with the Second Defendant and had relied on this assumed exposure when entering judgment against it. Further, it was not clear that Caposite was in use at the time the Claimant worked for the Second Defendant. This error alone was sufficient to justify the appeal being allowed.

Although this was an appeal which turned on its own facts, the observations Turner J made at in relation to the show cause process at [17]-[18] are of possible wider interest:

I appreciate that the rate at which the procedure under Practice Direction 3D identifies defendants who have no real prospects of success is in the region of 95 percent. That, however, still leaves 1 in 20 in which the defendant has at least established a sufficiently strongly arguable case to escape the net. It is tempting, in cases in which there is only one defendant and only one potential employment when the claimant is exposed to asbestos, to work backwards from the established fact that mesothelioma, by and large, is overwhelmingly (not exclusively) caused by exposure to asbestos. So if there is only one defendant, then it equips the judge to say with relative confidence, all other things being equal, that there was exposure and that it is very likely, in those circumstances, that the claimant will establish liability.

In this case, however, there was exposure which the Master uncontroversially laid at the door of the first defendant which, in itself, was sufficient to provide an explanation, at least arguably, for the contracting by the claimant of the condition of mesothelioma. So this is not one of those cases in which working backwards a judge could be confident from the fact that mesothelioma was contracted that there was exposure during the course of the employment of both defendants.

For the Claimant in this case, the consequences of the appeal are likely to be limited to costs: he still has judgment against the First Defendant in respect of mesothelioma, which is an indivisible injury.

Case Summary: Equitas Insurance Limited -v- Municipal Mutual Insurance Limited [2019] EWCA 718

This post was written by Spencer Turner. A link to the judgment can be found here.

Summary

In Equitas Insurance Limited v. MMI Limited [2019] EWCA 718, the Court of Appeal (Lord Justice Patten, Lord Justice Leggatt and Lord Justice Males) has addressed fundamental issues relating to the presentation of Fairchildmesothelioma claims by insurers to their reinsurance programme.

The Court distinguished the majority’s reasoning in IEG v Zurich[2015] UKSC 33 and held that the liability of a reinsurer to an insurer should be determined in accordance with orthodox common law principles and should therefore be apportioned in accordance with Barker v Corus[2006] UKHL20. The primary basis for the decision is that the policy behind the Fairchild jurisprudence and s.3 of the 2006 Act – which is to ensure that mesothelioma victims are fully compensated – is not engaged at the reinsurance level.

This means that where an EL insurer has settled a mesothelioma claim arising out of exposure which spans multiple policies without apportioning the loss between them (because pursuant to IEG v Zuricheach policy renders the insurer liable for the whole of the loss) it cannot present a subsequent reinsurance claim for the whole of the loss to any policy year of its choice. This is a practice which is known as “spiking” which insurers have developed to maximise the benefit of their reinsurance in mesothelioma claims, for example by avoiding a year with an insolvent reinsurer.

Instead, reinsurance claims will have to be pro-rated between the relevant years of reinsurance, usually on a time on risk basis.

Reinsurance

 InEquitas, MMI initially presented claims to Equitas under its reinsurances on the basis of a time on risk allocation, so that each loss was divided pro rata between the years of reinsurance in which the employee claimant was exposed to asbestos. MMI then changed its method or presentation so that it presented the whole claim to one year of reinsurance. MMI did so on the basis that its inwards claims had settled without reference to particular years or policies and that, because each insurance policy was liable in fully, so too each reinsurance policy was liable in full and it was entitled to present its reinsurance claim to any policy year of its choice in which the underlying claimant had been exposed by its insured to asbestos. This became known as ‘spiking’. It is MMI’s revised method of presenting claims which gave rise to the parties’ dispute.

Flaux LJ, sitting as a judge-arbitrator, stated that the issues for determination in Equitas were:

Question 1: Was MMI to be treated as having settled the inwards claims on the basis that each EL policy on risk was contributing a pro rata share of the loss being paid by MMI?

 Question 2: If not, was the basis on which MMI was presenting its reinsurance claims contrary to the duty of utmost good faith or an implied contractual duty requiring MMI to present its reinsurance claims in good faith?

 Question 3:If issues (1) and (2) were determined in favour of MMI, on the proper construction of the reinsurance contracts, were MMI contractually entitled to recover the full amount it has paid in respect of each inwards claim from any reinsurance contracts of its choice which provided cover for any part of the exposure period for which it was on risk, subject to the limits and retentions for those reinsurance contracts and subject to the paying reinsurers’ rights of contribution and recoupment?

 Question 4: If so, what rights of contribution and recoupment do the reinsurers which are called upon to pay the claim acquire against any other reinsurers who were also on risk for the claim, and against MMI in respect of any deemed “self-reinsurance”, and how do those rights fall to be calculated? In particular, should they be calculated using:

  1. The “from the ground up” pro rata method of apportionment, taking into account the first layer retention in every year of reinsurance exposure, as Equitas contended (‘the Equitas method’); or
  2. The “independent liability” method as MMI contended (‘the MMI method’)?
  3. Flaux LJ deiceded all of these issues in favour of MMI. Following Flaux LJ’s decision, Equitas sought leave to appeal to the Court of Appeal which was granted under section 69 of the Arbitration Act 1996.

 

Court of Appeal Decision

The appeal was heard by three Court of Appeal justices comprising Lord Justice Patten, Lord Justice Leggatt and Lord Justice Males. The issues for the court to consider were as follows:

In the event of an insured employee being tortuously exposed to asbestos in multiple years of EL insurance, and the EL insurer settling the employer’s claim without allocation the loss to any particular year of exposure, is the EL insurer obliged (in the absence of specific provision for this situation in the corresponding reinsurance) to present any outwards claim in respect of that loss on a pro rata, time on risk basis for the purpose of calculating reinsurance recoveries, either because:

  1. The contribution to the settlement of each engaged policy must by necessary implication be treated as having been on that basis (“question 1”); or
  2. The doctrine of good faith requires the claim to be presented on that basis (“question 2”)?
  3. If the EL insurer is not so obliged, and may present a claim to a single year of his choice, how are the rights of recoupment and contribution acquired by the reinsurers of that year to be calculated (“question 3”)?

 

In answer to question 1, Males LJ said the answer was no. His Lordship agreed with Flaux LJ that MMI had a contractual right to present its reinsurance claims to the policy year of its choice, but his Lordship did not describe this as an “absolute” contractual right.

The answer to question 2 was yes, unless there was some other rational basis for ascertaining the contribution to the risk in each triggered policy year [see:114-115].

 His Lordship went on to say [at 116] that in an area of law in which considerations of fairness and policy had explicitly loomed larger than usual, and bearing in mind the willingness of the Supreme Court to strike new ground if necessary to achieve a fair balance of all the interests concerned, a term of good faith ought to be implied.

Males LJ said that the need to answer question 3 did not arise unless the answer to question 2 was held to be wrong. In which case the Equitas method should be applied [see: 123].

Leggatt LJ, in agreeing with the judgment of Males LJ, added further reasons to explain why the doctrine of good faith requires the reinsurance claims at issue in this case to be presented on a basis which apportions the insurer’s ultimate net loss between each policy year in respect of which the insurer was liable to indemnify the insured employer for the damage caused to a victim by mesothelioma [See:162]

His Lordship went on to distinguish the majority’s reasoning in IEG[see: 163-170] and concluded that [at 172]:

The short of the matter is that the courts need not and should not impose a complicated, burdensome and, to put it charitably, unconventional solution [i.e. that in Fairchild and IEG] on the reinsurance market when a simple, principled and orthodox solution [i.e. Baker] is at hand.

Conclusion

This decision now gives judicial guidance to the reinsurance industry as to how EL mesothelioma claims (where there has been exposure over a number of policy years) should be presented to reinsurers. This means that where an EL insurer has settled a mesothelioma claim arising out of exposure which spans multiple policies without apportioning the loss between them it cannot present a subsequent reinsurance claim for the whole of the loss to any policy year of its choice.

HMG3 & Ors v Dunn [2019] EWHC 882 (QB)

This post is by Rachit Buch.

This decision shows that the human impact of an asbestos-related diagnosis can be a significant factor in limitation decisions under s.33 of the Limitation Act 1980. This, along with the lack of prejudice to the defendant, was a crucial factor in the claimant’s successful s.33 application, which was not overturned by Yip J on appeal.

Facts

George Dunn developed asbestosis. He died from bronchopneumonia on 22 March 2012. The claim was issued posthumously on 15 March 2015. It was alleged that Mr Dunn had been exposed to asbestos in the course of his work for two defendants. 

Mr Dunn was informed of his diagnosis in 2008. He was advised to seek legal advice about bringing a claim. However, he had other significant health problems. His health deteriorated until he passed away. In April 2012, an inquest into his death concluded that he died of industrial disease.

Mr Dunn’s widow gave evidence that “the asbestos problems seemed irrelevant…” against the background of the other health issues.

Judgment

Unsurprisingly, and without challenge on appeal, the judge found that Mr Dunn’s date of knowledge was October 2008.

But the judge found that the delay in bringing the claim was understandable: “He and his wife were concentrating on his health rather than pursuing any potential litigation, and it seems to me that is an excusable reason.”

As to prejudice, the Defendants were found not to be in any different position in 2015 than they were in 2008.

The judge exercised his discretion under s.33 and allowed the claim to proceed out of time.

Appeal

A number of points were pursued on appeal. The arguments in relation to the reasons for the delay and prejudice are of most interest.

The law has been summarised most recently in Carroll v Chief Constable of Greater Manchester  [2017] EWCA 1992.

Mrs Justice Yip placed emphasis on the caution advised by McCombe L.J. in Carr v Panel Products [2018] EWCA Civ 190 at [44] where he stated that one ‘brick’ in the wall of a s.33 decision being shaky need not undermine the overall conclusion, unless it is a ‘foundation stone’ that proved to be unsound.

Here, the two ‘foundation stones’ were reasons for the delay and prejudice.

On delay, Yip J assessed the reasons given by the judge for accepting that the delay was excusable and endorsed the conclusion ([30]). Though there was no explicit consideration of the period after death, it was clear from the judge’s decision that the claimant’s focus on other matters, and her instruction of solicitors a month after the inquest, was understandable.

On prejudice, the judge’s conclusion that the Defendants were in no worse a position in 2015 than they would have been in 2008 was “the only sensible conclusion” that the judge could have reached on the evidence.

Although “the judge might have expressed himself more clearly in relation to other matters”,  Yip J held that it would be inappropriate to interfere with his discretion under s.33. The Defendants’ appeal was dismissed.

Comment

The facts underlying this decision are not uncommon: limitation having expired before the date of death with almost three more years passing before proceedings were issued.

Dunn shows that, in stepping back from the individual factors identified in s.33(3) of the 1980 Act, the reasons for the delay and prejudice will be crucial factors in determining the ultimate question in s.33(1). Whilst the objective evidence on knowledge will lead to the date of knowledge decision, the subjective factors for failing to issue proceedings may tip the balance.

The judgment on appeal also provides useful guidance on assessing the merits of a s.33 appeal. Though the losing party might properly identify flaws in the decision at first instance, the emphasis has to be on whether or not those flaws are sufficiently important to shake the foundation of the decision.