This post by Kate Boakes is about the recent decision of Mr Justice Murray by which he reversed Master Thornett’s dismissal of the Claimant’s non-party disclosure application in a mesothelioma claim arising out of alleged asbestos exposure in a school.

The Claimant was represented by Harry Steinberg QC and Aliyah Akram.

The claim

The facts are summarised at [6]-[10].

It was alleged that the Deceased was exposed to asbestos while working as a teacher between 1970 and 1975. It was said that asbestos was in the fabric of the school building and that the Deceased would “almost inevitably” have been exposed to asbestos during the construction of a new schoo l building in 1973.

The Defendant was the London Pension Funds Authority, which had inherited the relevant contingent liabilities. The Respondent to the disclosure application was the Leigh Academies Trust (“the Trust”) which, according to information obtained by the Claimant’s solicitors, had “boxes of old documents” relating to building and maintenance works at the school.

Disclosure requests

The background to the application is set out at [12]-[15]. The Claimant’s solicitors sought disclosure from the Trust and were provided with 46 pages of documents. They wrote to the Trust saying that they considered it likely that there were more relevant documents in the light of the information they had been given as to the quantity of documents the Trust held. They offered to attend the Trust’s site to inspect the documents. A representative of the Trust telephoned the Claimant’s solicitors and stated that it had provided all of the documents relevant to the 1970s. After consultation with counsel, the Claimant’s solicitors made a wider disclosure request for documents regarding building, maintenance, renovation, or demolition works at the School before and after the Deceased’s period of employment. There was no response to this request and a non-party disclosure application was filed pursuant to CPR 31.17.

Application hearing

The decision of Master Thornett is summarised at [16]-[26].

Master Thornett dismissed he application on the basis that it was too broad, vague, and unfocused. The Master held that it would impose a disproportionate and unfair burden on the Trust, particularly bearing in mind that it was a third party respondent. His overall conclusion was that:

“… this application is hopelessly vague and lacking in specificity. It is unworkable from a Respondent’s viewpoint and it is disproportionate to expect a third party to try to respond to it. … I cannot, sympathetic as I am to the principle as to how certain documentation could be relevant, today grant this application as it stands. Neither am I able to identify a shape or form of an order that could be intelligible.”

The appeal

The Claimant pursued four grounds of appeal which are set out at [33].

The Judge summarised the legal framework at [27]-[32] and the Claimant’s submissions at [34]-[44].

Murray J found for the Claimant on all four grounds. His reasons are at [45]-[53]:

“45. Acknowledging the broad discretion that the Master should be accorded in making a case management decision, I am nonetheless forced to the conclusion that he was wrong in his application of the test under CPR r 31.17(3) to the relevant facts, took into account irrelevant factors, gave insufficient weight to relevant factors, and failed to balance the relevant factors fairly in the scale. His decision was wrong, and therefore the Order had to be set aside.

[…]

51. For the reasons given by Mr Steinberg, documents regarding building, maintenance, renovation, or demolition works at the School, both before and after [the Deceased’s] period of employment, were potentially relevant, satisfying the “may well” test referred to in Three Rivers (No 4). Properly understood, the Disclosure Application did not seek to require the Trust to undertake a disproportionate, onerous, vague, or unfocused search. All the potentially relevant documents were in boxes at the School’s premises, and RWK was offering to pay copying costs or to attend and physically inspect the boxes themselves.

52. Moreover, it is clear that there was a reasonable possibility that in those boxes there would be documents that were decisive of the claim, one way or the other, and therefore that disclosure was necessary in order to dispose fairly of the claim and/or to save costs.

53. Because the Master appears to have misunderstood the scope of what was requested in the Disclosure Application, which in my view is clear from the statement supporting the Disclosure Application, he did not exercise his discretion on a proper basis and therefore made the wrong decision.”

Costs

Unusually, the Claimant was awarded the costs of making the application on the basis that the Trust had “not put forward any good reason why, from the end of October 2019 onwards it failed to engage with the appellant’s reasonable and several times repeated request for disclosure, which included reimbursing the Trust for its copying costs or attending to conduct a physical inspection, further minimising cost to the Trust.”

Comment

Applications of this sort are heard by Masters on the mesothelioma list day-in-day-out but it is rare for them to be considered in an appeal. This decision therefore provides a useful reminder of the legal framework and how those principles should be applied in practice.

In particular, it is a reminder of the threshold that is set by CPR r31.17(3), which is that documents “are likely to support the case…” if they “may well” do so as opposed to it being “more probable than not” that they will do so.

As per the Judge’s findings in this case, documents from an earlier period than the employment period may have showed asbestos being installed, or documents from a later period may have showed asbestos being removed. In either case, such documents “may well” have supported the Claimant’s case.

The decision also exemplifies the importance of giving a respondent to a non-party disclosure application adequate time to respond, or chasing for a response before issuing an application, and, where possible, of seeking to relieve the burden of compliance with the request by offering to pay for copying or even of attending to carry out the inspection. In this case, not only did the taking of these steps contribute to the success of the appeal, they also led to the Claimant recovering the costs of the application.

This blog post was written by Samuel Cuthbert.

Harry Steinberg QC and Kate Boakes – instructed by Peter Williams of Fieldfisher LLP – acted for the Claimant in Deborah Head (Executrix of the Estate of Michael Head, Deceased) v The Culver Heating Company Limited [2021] EWHC 1235 (QB). Johnson J re-assessed the lost years claim, following the Claimant’s successful appeal in the Court of Appeal earlier this year.

The judgment can be read here. Our blog post on the Court of Appeal’s judgment can be read here.

Background

In January 2021, the Court of Appeal overturned the decision of HHJ Melissa Clarke by which she held that Mr Head, a successful businessman who founded and ran a company called EMSL, could not recover any loss of earnings in the lost years because the profitability of his business would likely continue after his death and so too any divided income from his shares. The Court of Appeal set aside that element of her decision and ordered that the case should be remitted for a re-assessment of the lost years claim.

The re-assessment of damages was heard by Johnson J. By a judgment handed down on 11 May 2021, the Judge assessed damages for the lost years claim in the sum of £2.44 million. Accounting for the other heads of loss that were assessed by HHJ Clarke, the total judgment sum was £2.62M.

The decision

Johnson J was required to assess the lost years claim in accordance with the guidance of Bean LJ in the Court of Appeal.

The gulf between the parties remained enormous: the Claimant contended for a figure of £3.7M and the Defendant contended for a figure of £238,000. This difference was attributable to four key issues which the Judge had to determine.

(1) What fell to be included in the lost years claim? Was it limited to salary and dividend income? Or did it extend to retained profits insofar as these were generated by Mr Head’s work?

At paragraph 33 of the Court of Appeal’s judgment, Lord Justice Bean held that “at the time of Mr Head’s death all the income which he and his wife received from the company (save for the small deduction in respect of Mrs Head’s work) was the product of his hard work and flair, not a return on a passive investment.”

There was a dispute as to the meaning of this sentence. The Claimant argued that it was intended to mean that all of the income the Claimant was able to derive from EMSL, including those profits he chose to retain within the business, was recoverable as part of the lost years claim and there was no “investment income” element. The Defendant argued that the use of the word “received” meant that the recoverable element was limited to that which was actually extracted from the business and that the profits Mr Head retained within the business should be categorised “investment income” and offset against the loss.

Johnson J found for the Claimant on this point. He held that the effect of the Court of Appeal’s judgment was clear:

First, artificial distinctions should not be drawn between salary, dividends and undistributed profit. Bean LJ’s use of the term “loss of earnings” was not an exclusion of earning capacity that was reflected in the accumulation of funds otherwise than by payment of salary. Mr Head’s dividend income was not to be treated differently to his salary. Similarly, the term “dividend” was used in Bean LJ’s judgment to cover both dividend income and undistributed company profits. Mr Head’s earning capacity was not defined solely in terms of his salary or by reference to dividend payments, because he was the individual responsible for 90% of the profitability of the business. Had he been self-employed, his earning capacity would be assessed be reference to his net profit and the fact he chose to incorporate EMSL did not, as a matter of principle, make any difference to his level of earning capacity.

Second, Mr Head’s earning capacity, at the time he contracted mesothelioma, was best reflected by a combination of his salary and 90% of EMSL’s profits, less a deduction in respect of the work done by Mrs Head. This was an assessment made by HHJ Clarke at first instance and the Court of Appeal had not suggested that this element of her decision was in any way flawed.  

Third, once Mr Head no longer worked full-time, his earning capacity could properly be reduced pro rata.

(2) If Mr Head had not contracted mesothelioma, to what extent would he have worked less and/or handed over ownership of the company as he approached old age?

HHJ Clarke held that Mr Head would have worked at 80% rate from the age of 65 to 70 and at 50% rate thereafter. These findings were not disturbed on appeal. Johnson J held, following the guidance from Bean LJ, that Mr Head would have further reduced his input to 25% at the age of 75. Despite Mr Head’s evidence that he did not envisage ever fully giving up work, Johnson J found as a fact that he probably would have retired completely at the age of 80.

Johnson J accepted the evidence of Mr Head’s widow and son that he would not have drawn more money from EMSL than that which reflected the work he put in. He found that it was likely, as the years progressed, that Mr Head would have reallocated his shareholding to reflect his proportionately reduced involvement. This meant that there was no element of “investment income” to be taken into account – all of Mr Head’s income from EMSL would have been a reflection of his contribution to the business and was therefore earned income.

(3) Should the calculation of the lost years claim take into account rental income that Mr Head would have received from a property he had jointly owned with his widow?

This issue was not explored at the original trial and so there was no evidence on the point. It was possible that if the Defendant had relied on the rental income, then the Claimant may have sought to argue that a part of the rental income should be included in Mr Head’s earning capacity, thereby increasing the extent of the claim (e.g. if Mr Head had spent time and effort in the maintenance of the property). Johnson J held that it was not open to the Defendant to introduce an additional factor to the calculation of the lost years claim which had not been explored in the evidence.

(4) What deduction should be made for living expenses?

It was common ground that that Mr Head’s notional living expenses during the lost years should be deducted from his earning capacity, but not the extent of that deduction. There was a typing error in HHJ Clarke’s judgment which meant that the percentage deduction was too high. The Defendant contended that it was too late to change it. But Johnson J held that, rather than deducting a proportion of the income, it was appropriate to deduct the actual sum that reflected Mr Head’s living expenses. This was £3,584 per month. This deduction was to be made once overall – rather than year on year with any surplus crystalising as a loss – because the award was a single sum representing the whole of Mr Head’s earning capacity in the lost years less his total living expenses for the same period.

Consequential issues

Johnson J decided various consequential issues at a second hearing.

After determining some minor calculation issues, he assessed the lost years claim at £2.44 million. The overall judgment sum – including other heads of loss and interest – was £2.62 million.

There were two consequential issues which may be of wider interest.

• What rate of interest should be applied, and in respect of which components of the award?

The effect of the judgment was that Mrs Head ought to have been awarded £2.44 million in May 2019, when HHJ Clarke handed down her judgment. The Claimant contended that interest should be awarded on that whole sum at a rate of 8% (by analogy with the judgment debt rate) or alternatively 4%. The Defendant argued that interest should only be awarded on the past loss element of the award, at half the special account rate.

Johnson J held that he should apply the conventional approach, as set out in Jefford v Gee [1970] 2 QB 130, of awarding interest at half the special account rate. That rate was held to apply to past losses only, i.e. that part of the lost years claim that related to the period before judgment in the re-assessment of damages.

(2) What, if any, orders should be made under CPR 36.17(4)?

The Claimant made a Part 36 offer on 13 November 2020, before the Court of Appeal hearing, of just under £2.25 million in respect of all heads of loss, which she subsequently bettered. The Claimant sought an order under CPR 36.17(4) which should be refused only where the court considers it “unjust” to make such orders. CPR 36.17(5) sets out a non-exhaustive list of matters to be considered.

Johnson J considered each of the factors at CPR 36.17(5)(a)-(e) and held that none of those factors suggested that it would be unjust to order Part 36 consequences. However, he declined to make the orders on the basis that the Claimant introduced new evidence between the Court of Appeal’s judgment and the re-assessment of damages hearing. That evidence comprised a witness statement from Mr Head’s widow, son, and personal assistant, which resulted in a finding that Mr Head would have reduced his shareholding in the business to reflect the gradual reduction in his involvement. This benefitted the Claimant as it meant that the value of the claim was assessed on the basis that Mr Head would not have received income from the business beyond that which derived from his contribution. The Judge found that the earlier evidence before the court would not, in itself, have resulted in that finding, and therefore it would have been natural for the Defendant to question whether the offer was supported by the evidence as it stood at the time.

Comment

The decision on the lost years claim is bound up in the findings of fact. Johnson J, having considered the evidence in the light of the decision in Adsett v West, held that Mr Head’s income would have reflected his work and was not investment income. But the judgment serves as a useful worked example of how to quantify a lost years claim for a successful businessperson who is still working at the time of contracting a fatal illness.

In his judgment in the Court of Appeal, Bean LJ stated at [6]: “I consider that it was indeed necessary to reopen the determination of this appeal in order to avoid real injustice”. Before HHJ Melissa Clarke, the Claimant was awarded damages of c.£175,000 and nothing in respect of the lost years. The re-assessed damages now stand at £2.62 million. This serves to quantify the extent to which a real injustice has been avoided.

The Part 36 decision is also of interest. It could be argued that the Defendant was fortunate to escape the consequences set out in CPR 36.17(4). The determinative factor identified by the Judge appears to be one of the vagaries of litigation, where the Claimant produced supplementary evidence in response to the guidance from the Court of Appeal.

This post was written by Helen Waller.

An independent boarding school recently appealed a judgment on liability made against it under the ‘show cause’ procedure set out in CPR PD 3D. The claim was one made by a former pupil who had contracted mesothelioma as a consequence of his exposure to asbestos at the school. The mesothelioma led to the former pupil’s death in December 2020, a month after the show cause hearing. His widow continued the claim.

CPR PD 3D, paragraph 6.1 sets out the defendant’s obligations in the show cause procedure. A defendant is to “identify the evidence and legal arguments that give the defendant a real prospect of success on any or all issues of liability.” Following Silcock v H M Revenue and Customs [2009] EWHC 3025 (QB), that obligation only kicks in once the claimant has adduced credible evidence in support of his case.

The Background

The Claimant/Respondent had been a boarder at the school from 1969 to 1973, housed in a Victorian building. He said that 6 days a week he and other pupils dried their sports kit on asbestos-lagged pipes in the basement boiler room. His case was that the lagging was damaged and frayed. In respect of establishing the Defendant/Appellant’s knowledge of the dangers of asbestos and breach of duty, the Claimant/Respondent relied on the following:

1. A Department of Education memo, circulated to all schools in 1967, which stated that the inhalation of asbestos dust was known to cause asbestosis, lung cancer and mesothelioma.
2. The now well-known 1965 article in The Sunday Times which discussed the danger of exposure to asbestos.
3. A letter from a health and safety practitioner as a preliminary expert report, which stated that the pipes were likely to have contained asbestos.

The Defendant/Appellant submitted a preliminary report from an occupational hygienist.

The Master held that the school knew or ought to have known of the condition of the lagging, the risk of exposure to asbestos, and that the pupils were using the room. He held that the memo and the article meant that it would be fanciful for the school to maintain that it did not have concerns about exposure to asbestos, and that the school should have curtailed access to the boiler room in light of such concerns. Therefore, the Master concluded that the school had no realistic prospect of defending liability and that a breach of statutory duty was incontrovertible. Medical causation and assessment of damages remained to be dealt with at trial.

The Appeal

The appeal came before Cavanagh J. The school contended that the Master had applied too high a standard in deciding whether or not it had a “real prospect of success” in defending the case on liability. The school accepted that the lagging had likely contained asbestos, but argued that it had neither actual nor constructive knowledge as to the risks of asbestos at the time such as would place it in breach. It argued that asbestos had been used up to 1975, that contemporary publications had suggested that it had posed no health risk and that competing interpretations of what was known at the time should be a matter for trial.

The Judge dismissed the appeal. Drawing on Silcock, the Judge held that the test of whether the Defendant/Appellant’s case had some prospect of success that was not fanciful was a low bar. The procedure was inevitably rough and ready and often conducted without the benefit of full expert reports. It was held that the Department of Education memo should have put the school on notice of the risk. The Master had been entitled to conclude that it was not reasonably arguable that contemporaneous reports about the safety of asbestos present in buildings in an undisturbed state could have assuaged concerns. That conclusion was supported by The Sunday Times article from 1965. As a result, the Master had been right to find that the school ought to have taken reasonable steps to prevent exposure to the asbestos lagging and dust. Foreseeability was to be judged in the context of the state of knowledge at the time and the Master had been correct in his conclusion that the school would not be able to establish that harm had not been reasonably foreseeable. The school might not have known whether the dust swirling in the boiler room was chrysotile, but there had been a clearly foreseeable risk of injury. The school’s own expert did not exclude the possibility that the dust was chrysotile.

Comment

This is an important appellate judgment re-enforcing two key aspects of the show cause procedure.

Firstly, it is only a low bar that a defendant has to meet. However, the test is a clear one and the Masters are specialist asbestos judges. This case is a reminder that the Masters should approach these cases pragmatically and realistically. 

Secondly, the Masters regularly apply this test to incomplete expert evidence, but that is no bar to a finding of a defendant having no prospects of success. Defendants can often generate the semblance of a coherent argument, but once one takes a step back, it is clear that that argument is not one that stands reasonable prospects at trial. The procedure is necessarily rough and ready. It is designed to ensure, so far as possible, that dying victims are not deprived of the ability to live the short remainder of their lives with a modicum of financial security.