This post was written by Christopher Fleming.

This decision arises from the Asbestos Victims Support Groups Forum UK’s application under CPR 5.4C to access documents that had been produced by Cape in a previous set of proceedings to which the Forum had not been a party.

The application came before the Supreme Court in 2019 (see James Beeton’s blog post on the Supreme Court’s decision here, as well as his post on the Master’s decision at first instance here ).

Delivering the judgment of the Supreme Court, Lady Hale upheld the Court of Appeal’s decision that the Court should provide the Forum with copies of the parties’ statements of case and that Cape should provide copies of witness statements, expert reports and written submissions. However, she ordered that the matter be sent back to  a High Court judge, preferably Picken J (the trial judge in the previous proceedings) to determine whether the Court should require Cape to provide copies of all the other documents placed before the Judge and referred to in the course of the trial. This represented some 5,000 pages of documents contained in around 17 lever arch files.

The Forum duly applied to Picken J under CPR 5.4C. Picken J set out what he considered to be the correct application of the Supreme Court’s decision:

1. The Supreme Court’s decision should be regarded as having restated the open justice principle in a way which no longer makes it necessary to apply the ‘legitimate interest’ approach [¶61]. Put differently, whether an applicant has a legitimate interest in inspecting the document is no longer a significant factor in the court’s determination of such applications.
2. A third party making such an application should not merely show that access to documents would be in accordance with the open justice principle but also that such access would advance the open justice principle [¶78].
3. This is not a ‘prior hurdle’ to such an application, but rather a ‘sliding scale’. Where a particular case appears on that ‘sliding scale’ will depend on a range of factors, including whether access to the documents will advance the open justice principle and, if so, consistent with the concept of a ‘sliding scale’, to what extent. The Court should engage in the balancing exercise and, in so doing, accord appropriate weight to the various different factors. The fact that a third party is seeking documents for collateral purposes which have only a limited connection with advancing the open justice principle will be a factor which will weigh less heavily in the appropriate balancing exercise than if the position were otherwise and the documents sought would more significantly advance the open justice principle [¶81].

He went on to refuse the Forum’s application for the following reasons:

1. The documents sought were clearly not required by the Forum in order to understand what the issues in the underlying proceedings were and what the evidence concerning those issues constituted [¶98].
2. No evidence was adduced to show how such documents would advance the open justice principle. The focus of the evidence was rather on seeking to establish a ‘legitimate interest’, which, as already noted, was no longer the relevant question [¶99].
3. As per the approach explained by Lady Hale, it is incumbent upon an applicant to justify its application by reference to the open justice principle. He found that the Forum had not done so adequately [¶100].
4. Tellingly, the Forum already had documents, in the form of experts’ reports and the written opening and closing submissions, which enable it to understand the issues and the evidence adduced in support of the parties’ cases. [¶101].
5. The real motivation behind the application was a concern on the part of the Forum that it would be more useful from an evidential perspective were the documents to be available for use in other litigation. In that sense, the Forum was effectively making a third-party disclosure application in relation to other proceedings, but seeking to do so without regard to the constraints to which a genuine disclosure application would be subject [¶115]. The CPR have clear provisions for the obtaining of documents.
6. It was the Forum’s avowed intention that the documents should be used in other proceedings. Regard should be had to the fact that Cape would have no ability in such proceedings to put forward any explanation as to particular documents [¶118]
7. Had the Forum sought production of the relevant documents at trial on the same basis, Picken J was clear that the Court would have declined to order production [¶120].

While obviously interesting from a legal standpoint, particularly to keen observers of the principle of open justice, this decision is of practical significance to those seeking to pursue asbestos-related claims involving the Cape group of companies. The effect Picken J’s decision is that no further documents shall be provided by Cape to the Forum beyond those which fell within the scope of the Order made by the Court of Appeal in 2018.

Read the decision in full here.

This post was written by Megan Griffiths.

The High Court has recently found for a claimant who was exposed to asbestos at work in the late 1950’s and 1960’s in Smith v Secretary of State for Transport [2020] EWHC 1954. The key issue in dispute was whether his exposure met the requisite threshold for a diagnosis of asbestosis: the threshold being 25 fibres per millilitre per year (“fibre years”). The judge considered Mr Smith’s lay evidence on his daily duties, documentary evidence of his employer’s use of asbestos and expert evidence on the likely levels of exposure to find that it did.

Background to claim

Mr Smith was employed by British Rail from 1956 to 1963. His work involved repairing train carriages and he alleged that he was regularly exposed to asbestos dust in the course of this work. His case was that this exceeded 25 fibre years meaning he now suffered from asbestosis. He claimed that the Defendant had breached its statutory duties under the Factories Acts to take all practicable measures to protect its employees against inhalation of substantial quantities of asbestos: s.47 of the 1937 Act and s.63 of the 1961 Act [15-16]. His secondary claim in negligence did not add to the matters in issue [17].

The Defendant denied that Mr Smith’s exposure met the fibre years threshold for asbestosis. It did however accept that if the court found Mr Smith did meet the threshold, it was in breach of statutory duty [16]. Subject to liability, quantum was also agreed.

The liability only trial took place over Skype in June 2020. Live evidence was heard from the parties’ expert occupational hygienists, with Mr Smith’s oral evidence having been given on commission in October 2019.

There were three key issues that the court decided upon at trial, with the latter two pertaining to liability.

Issue one: how should the court approach Mr Smith’s evidence, given that he suffered an stroke in 2001 that had impacted his ability to communicate?

Mr Smith gave the only first-hand evidence of his daily working habits and exposure to asbestos, in two witness statements and the evidence on commission. However, he had communication difficulties as a result of a stroke in 2001 which were apparent from the video of his evidence on commission, at one point saying “I can’t talk properly” [38]. Thornton J was concerned as to how to properly approach his evidence and asked both counsel to agree a summary of the relevant principles from the case law which is set out at [40] of the judgment. The principles are applicable to all witness evidence and helpful reading for any litigator considering how their witness’ evidence of historic events will be interpreted at trial.

Thornton J bore Mr Smith’s particular difficulties and those principles in mind when assessing his evidence. She mentioned in her judgment that having access to the transcript as well as the video of the evidence on commission was “particularly useful” in his case [43].

Issue two: to what extent was Mr Smith exposed to asbestos in the course of his work?

It was agreed that Mr Smith was exposed to asbestos when his colleagues removed ceiling panels in the carriages which released asbestos dust [8]. Documentary evidence of British Rail’s use of asbestos at the time suggested that at least some of the carriages contained high concentration blue asbestos [9]. Mr Smith did not remove the ceiling panels himself and the extent to which he was actually exposed to the asbestos dust was disputed [10].

Thornton J carefully considered Mr Smith’s evidence on the nature and levels of his exposure. She took Mr Smith’s known communication difficulties into account when coming to a view on the credibility and persuasiveness of his evidence (for example, [50 and 73]).

Although the judge acknowledged that there were some inconsistencies following cross examination, they were by no means fatal to Mr Smith’s evidence which was ultimately “clear and consistent” on the issue of his exposure [73]. In particular, Mr Smith gave unchallenged evidence of chunks of blue dust falling onto him and the floor during his work and staying there until the end of the job which supported his case [45].

Mr Smith’s evidence alongside the documentary evidence of asbestos use at that time by British Rail and the expert evidence, led Thornton J to find that Mr Smith had been exposed to asbestos dust “on a regular basis” [76].

Issue three: did that exposure meet the 25 fibre years threshold required for a diagnosis of asbestosis such that his claim succeeded?

The experts agreed that if Mr Smith’s exposure met the threshold of 25 fibre years then the correct diagnosis was asbestosis in accordance with the 1997 Helsinki criteria [2 and 11]. Therefore, the issue for the court was whether this had been met on the facts, using the experts’ estimated calculations to inform that decision [31 to 34].

Having accepted Mr Smith’s evidence on the nature and extent of his exposure, Thornton J adopted Mr Smith’s expert’s mean concentration figure to find that he was exposed to 20 to 100 fibre/ml on a regular basis and that, on the balance of probabilities, his total exposure was over the diagnostic threshold [82].

Comment

Mr Smith’s success is encouraging for claimants in historic asbestos exposure cases. This was a case where the only evidence of his daily work was from the claimant himself, without statements from colleagues or other ex-employees. Additionally, Mr Smith had communication difficulties to overcome in giving a clear account of events over 60 years ago. Notwithstanding these challenges, the judge was able to form a clear view of Mr Smith’s evidence in his favour, no doubt thanks in part to the work of his legal team in preparing clear and convincing witness statements.

Whilst the circumstances giving rise to Mr Smith’s communication difficulties are somewhat unusual, many claimants in asbestos cases are elderly and may well have unrelated communication difficulties that need to be taken into account. The passing of long periods of time and/or individual communication challenges will not prevent the right claimant from establishing the exposure required to succeed in a claim against their ex-employer, like Mr Smith was able to in this case.