Bae Systems Marine Ltd v Alfa Laval Ltd [2022] EWHC 2686 (KB)

In this blog Cressida Mawdesley-Thomas considers the decision of HHJ Lickley KC in Bae Systems Marine Ltd v Alfa Laval Ltd [2022] EWHC 2686 (KB).

Introduction

The decision concerns an unsuccessful claim for contribution under s. 1(1) of The Civil Liability Act 1978, following the settlement of a claim for mesothelioma (‘the substantive action’), by the owners and operators of a dockyard. It is a salutary reminder of what any claimant in asbestos litigation must prove to succeed in a claim, particularly in the context of naval dockyard exposure.

Summary

The contribution claim was for £190,696.12, being the costs and damages incurred in settling the substantive claim for mesothelioma that was brought against Bae Systems as the owners and operators of the Barrow-in-Furness Dockyard between 1970-1975. To be successful in the claim for contribution, Bae Systems (‘the Cliamant’) needed to prove, on the balance of probabilities, that when the deceased was employed by the Defendant, Alfa Laval Ltd, which was between 1974 and 1975, he was exposed to asbestos. However, the claimant failed to prove their case.

The Judge was unimpressed by the lack of evidence and the fact that the claimant’s case in the contribution claim was directly contrary to their Defence in the substantive action (they never admitted liability and the settlement was recorded in a Tomlin order). The claimant in the contribution claim adopted the allegations made by the Claimant in the substantive action: that the Deceased was exposed to asbestos at the Barrow-in-Furness Dockyard when working on the design and installation of filtration systems, which included the application of asbestos lagging, on HMS Sheffield (a type 42 Destroyer) and a nuclear submarine.

Substantive Action

In the substantive claim the Defence made the following points:

(i) Denied that the deceased was exposed to such levels of asbestos dust that there was a foreseeable risk of injury at that time [5].

(ii) Averred that ‘it is highly unlikely that the filtration system which the deceased was charged with designing and overseeing would have been assembled inside the hull as late as 1974’ [6.5(a)].

(iii) Averred, in any event, that any filtration system and/or pipework servicing such a system would not require insulation [6.5(b)].

(iv) Relied upon the survey of HMS Cardiff of 14th January 2008 to show the lack of asbestos used in lagging [6.6].

(v) Relied upon the research by Geoffrey Slee of 28th February 2005 who reported that the only asbestos used at the Dockyard in the 1970s was compressed asbestos fibre used in gaskets between sections of pipe [6.9].

(vi) Averred the deceased would not have been employed to design the filtration system at the Dockyard at the time alleged [7.1].

(vii) If the deceased was at the Dockyard at the date alleged, he would not have been present when the filtration system was designed [7.2].

The above summarised position was adopted by the Defendant to the contribution claim.

The Evidence

This was a case where there was very little evidence. There was a witness statement from the Deceased and from two others who were not called to give live evidence. The Judge found that the Deceased’s evidence was of limited value, noting that there were factual errors relating to his “age, date of birth and daily commuting.” The statement was also made shortly before the Deceased’s death when he was very unwell and was trying to describe events that occurred more than 40 years before.

It was also noted that the other evidence from Mr Armstrong and Mr Carruthers did not support the claimant’s case on the time of the Deceased’s exposure, i.e., that it was from 1974 during the installation of a filtration system on HMS Sheffield and/or a submarine.  It was also noted that their evidence did not detail asbestos being used on a filtration system.

The Judge noted that the following, which would have been of assistance, was not before the Court:

  • Evidence from a naval architect commenting on ‘when during construction a filtration system was or would be installed’.
  • Diagrams, plans, or build specifications for a Type 42 Destroyer / submarines demonstrating where the filtration system was and how it was lagged.
  • Asbestos surveys of HMS Sheffield or any submarine under construction at the time.
  • Evidence that HMS Sheffield was fitted with a filtration system and that such a system involved a ‘hot’ component that required insulation which included asbestos.
  • Evidence as to when during the process of the building of a ship or submarine, any filtration system is installed and operational: The same points apply to any nuclear submarine under construction at the relevant time.
  • Build specifications, design or drawing for a Type 42 Destroyer or submarines built at the relevant time.

Occupational Hygiene Evidence

The court had the benefit of written occupational hygiene evidence (the experts were not called to give live evidence), however, the evidence of Martin Steer for the Defendant was preferred to that of Mr Glendenning for the Claimant.

It was noted that Mr. Steer’s conclusion [which assumed the filtration system was installed before the ship’s launch in 1971]; the deceased was employed by the Defendant in the tax year 1974-1975) whereas “Mr Glendenning has no knowledge of when such a system would be installed and, despite that, says that installation and further work ‘is likely to have occurred during the commissioning period which extended to 1975′.”

Takeaway Points

Whilst this was a claim for contribution made by the Defendant in the substantive mesothelioma action against one of the Deceased’s former employers there are a number of useful practice points for Claimant practitioners in asbetos disease litigation.

It should always be remembered what must be proved. In this case it needed to be proved that there was (i) a filtration system on the relevant ships (ii) that required insulation, i.e. because it contained a hot component (iii) that insulation contained asbestos (iv) that the claimant was exposed to it, i.e. when was the insultation installed. Evidence was needed on all of these issues but was distinctly lacking: the deceased’s evidence contained limited detail and contained a number of errors and other ‘supporting’ statements did not provide evidence of (i-iv) above. Taking care to avoid simple factual errors in witness statements will help prevent a Defendant taking easy points on credibility.

Dockyard / Naval Construction

There are a number of points particularly pertinent to dockyard / naval construction claims:

  • Gather as much publicly available information on the ship(s) as possible (or the same class of ship built in the same year). The type of evidence that will be helpful includes: build-specifications, diagrams and asbestos surveys. Consider instructing an expert naval architect and rely on this case in support of any application.
  • Test the evidence of your occupational hygienist / experts against the known facts of when the ship was launched and commissioned.
  • Try and obtain details regarding the colour of the asbestos used. In this case the deceased’s statement contained no such details and Mr. Stear noted: “The Royal Navy instruction issued in 1969 referred to the discontinued use of crocidolite (blue) and amosite asbestos at that time and trials were then in hand to reduce the use of chrysotile (white) asbestos.”
  • The Slee report on ‘The Study of the Historical Use of Insulation Materials’ dated 28th February 2005 may be helpful in cases concerning naval vessels which were built between 1943 and 1970: ‘the vulnerable period’.

Finally, it must be acknowledged that Defendants such as Bae Systems Marine Ltd, the owners and operators of the dockyard, are likely to be more reluctant to settle claims following this decision. It is therefore more important than ever to build a strong case and success will require the best evidence possible. As asbestos practitioners will be acutely aware, the days of heroic findings of fact are long since over. However, this case will be of assistance if seeking to rely on expert evidence from say, a naval architect and a different outcome may have been secured had evidence been placed before the court regarding filtration systems lagged with asbestos on other similar vessels.

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POWER V BERNARD HASTIE & COMPANY LIMITED & ORS [2022] EWHC 1927

This blog was written by Ivan Bowley who appeared for the successful Claimant. He is instructed by Tom Bradley of Simpsons Solicitors.

A recent decision of the High Court considers whether the right to seek further damages under a provisional damages order passes to the injured victim’s estate on his death.

Mr Hammacott developed asbestos related pleural plaques and minor asbestosis as a result of asbestos exposure sustained during various periods of employment with the defendants. In 1991 he issued a claim for provisional damages pursuant to section 32A of the Senior Courts Act 1981. The immediate award was determined at trial in 1993 and the parties subsequently agreed a consent order (PDO) which gave Mr Hammacott the right to seek further damages if he developed any of a number of risk conditions, including deterioration of his asbestosis or pleural thickening.

The PDO provided that: “The Plaintiff do have leave to apply (without time limit) for further damages pursuant to Order 37 Rule 10 if he does develop the aforesaid conditions or any of them.” Attached to the order was an agreed statement of facts which recorded that: “It is agreed between the parties that the Plaintiff can apply for further damages at any time during his life”. Many years later Mr Hammacott developed more serious asbestos disease but died in 2017 without having issued an application for further damages. It was alleged that his asbestos disease caused his death.

The executor of Mr Hammacott’s estate issued an application under CPR 19.2 to be substituted as Claimant in Mr Hammacott’s claim so that he could then pursue an application for further damages on behalf of the estate pursuant to section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, and a claim on behalf of Mr Hammacott’s widow pursuant to section 1 of the Fatal Accidents Act 1976. The question for the court was whether the benefit of the PDO survived and passed to Mr Hammacott’s estate pursuant to section 1(1) of the 1934 Act or, as the Defendants contended, it died with him.

The Defendants opposed the application on a number of grounds. Mr Hammacott’s original cause of action had “merged” with the judgment and so no longer existed. The right to seek further damages was therefore to be determined in accordance with the PDO together with the agreed statement of facts which limited the right to seek further damages only to Mr Hammacott and only during his lifetime. The statutory scheme did not envisage anyone other than the injured victim having the right to seek further damages.

The Claimant argued that the PDO comprised part of Mr Hammacott’s original cause of action, relying on the decision of HHJ Roberts in the County Court case of Guilfoyle v North Middlesex University Hospitals NHS Trust (2018). That cause of action therefore survived for the benefit of Mr Hammacott’s estate. The Judge agreed and considered that Guilfoyle had been correctly decided.

The Judge found that the term “without time limit” in the PDO did not restrict the right to apply for further damages only to Mr Hammacott. The reference in the agreed statement of facts to the application being made in the deceased’s lifetime did not appear in the PDO itself, and, even if it had, it was only a stipulation as to time and did not prescribe who was permitted to make the application. The Judge also rejected the argument that the right to claim further damages ended with Mr Hammacott’s death. The term “without time limit” meant exactly what it said and was not restricted to Mr Hammacott’s lifespan.

It was not in dispute that the relevant procedure was contained in CPR 41 which had replaced RSC Order 37 under which the original consent order had been made. The Judge found that the statutory scheme under section 32A of the Senior Courts Act 1981 and the procedural rules for provisional damages in CPR 41 did not limit the award of further damages only to the injured victim. Nothing in the legislation and the rules prevented the injured victim’s rights passing to a third party, including the victim’s estate.

Because of the Judge’s findings on the effect of the statutory scheme, CPR 41 and the language of the PDO, it was not necessary for the Judge to go on to consider whether an application to extend time to apply for further damages was necessary. Under Order 37 Rule 8(3) any application to extend the time within which a party could seek further damages had to be made before the expiry of the existing period. However, CPR 41 contained no similar stipulation. In Blythe v Ministry of Defence [2013] All ER 326, the Master had ruled that an application by a living victim to extend time made 2 years after the initial period had expired was permissible. That decision was upheld on appeal to the single judge and subsequently by the Court of Appeal.

Having made the findings summarised above the Judge found that the requirements of CPR 19.2 had been satisfied and the Claimant could be substituted so that the claim under section 1(1) of the 1934 Act claim could proceed.

Although not central to the issue before the Court the Judge also heard submissions about the impact of limitation. He found that no new limitation period applied in respect of the estate claim. This decision is consistent with Lloyd v Humphries [2015] EWHC 525 (paras 89 – 90). The time period within which an application for further damages could be made was determined by the terms of the PDO. If he was wrong about that the Judge stated that CPR 19.5 applied. CPR 19.5 permits substitution after the expiry of a relevant limitation period, and for personal injury actions provides that the court may defer resolution of that issue to trial.

A further question concerned a proposed amendment of the original claim to join the Fatal Accidents Act claim on behalf of Mr Hammacott’s widow. Section 3 of the Damages Act 1996 expressly permits a claim by the dependants where a provisional damages order has previously been made. CPR 17.4(2) permits the addition of a new claim after limitation has expired where it arises out of the same or substantially the same facts as the existing claim. The Judge stated that it was not necessary for him to rule on the question of whether it would be appropriate to permit an amendment of the existing proceedings to add a claim under the 1976 Act but nevertheless went on to consider the point. He stated that in order to succeed it would have to be shown that Mr Hammacott’s death arose out of the original tort; those facts were no part of the proceedings that were brought by Mr Hammacott and therefore the 1976 Act claim did not arise out of substantially the same facts as the existing claim.

Commentary

The Judge rejected the Defendants’ argument that the meaning of the PDO was to be found in the agreed statement of facts. By contrast, in Green v Vickers  [2003] EWCA Civ 904, the Court of Appeal determined the meaning of a term dealing with causation in a provisional damages claim by reference to the agreed statement of facts in that case. Inevitably each case will turn on its own facts, but where the language of the order appears inconsistent with the agreed statement of facts it should be the order that prevails.

The author also respectfully suggests that the Judge was wrong about the application of CPR 17.4(2). That rule states: “The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as the claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.” In the present action the claimant is seeking further damages because of the Mr Hammacott’s more serious asbestos disease and consequent death. The 1976 Act claim on behalf of his widow arises precisely because, it is alleged, Mr Hammacott died as a result of his asbestos related injury. Both claims arise out of the same tortious exposure to asbestos dust and concern the same asbestos disease. It is difficult to see how the two claims do not arise out of the same or substantially the same facts.

The issues that arose in this case are not uncommon in asbestos litigation, but they can also arise in other provisional damages claims. They concern the interpretation of provisional damages orders made many years earlier and under a rules regime that has since been replaced by the CPR. Language that was thought to be watertight when the original order was made may now be found not to achieve the result originally intended.

Problems can easily be avoided if the language of the provisional damages order specifically provides for claims by the injured victim’s estate (and/or dependants). When required to do so the Courts have provided for this outcome. The judge in Guilfoyle ordered that any further application for damages had to be made within 12 months of the victim’s death. In Prater v British Motor Holdings Ltd [2016] Lawtel, the judge specified a period of 3 years after the date of death.

Keegan v (1) Independent Insurance Company Ltd (2) Zurich Insurance PLC [2022] EWHC 1992 (QB)

This blog is written by John-Paul Swoboda and Cressida Mawdesley-Thomas. John-Paul Swoboda successfully acted for the Claimant, instructed by Shaheen Mosquera of Fieldfisher, in Keegan v (1) Independent Insurance Company Ltd (2) Zurich Insurance PLC [2022] EWHC 1992 (QB).

Keegan is the first case to go to trial, so far as we are aware, to consider the application of The Third Parties (Rights against Insurers) Act 2010 (‘the 2010 Act’) in the context of claims for mesothelioma. Regular readers of this blog will no doubt remember the case of Brooks (link to blog here) which considered the issue through the prism of a strike out application.

It is, we think, a significant decision:

  • It makes any argument that the cause of action is complete in mesothelioma cases years before the onset of symptoms hard, if not untenable.
  • Arguments against suing an insurer(s) directly in mesothelioma claims (where the employer is no longer a live entity) on the basis that the cause of action was complete before 1 August 2016 are therefore hard, if not untenable.

Background

Claimant

Mr Keegan was exposed to asbestos whilst working for his employer Jas. C. Flaxman & Sons Ltd at various Marks & Spencer stores between 1972 and at least 1984. He began to suffer from symptoms of mesothelioma in about January 2021. His claim was supported by witness statements and also medical evidence. To avoid the delay of restoring Jas. C. Flaxman & Sons Ltd to the register Mr Keegan brought his claim directly against their insurers (IICL and Zurich), relying on the 2010 Act. This was particularly important as he was paying for expensive dual agent immunotherapy from his own funds.

First Defendant

The First Defendant, an insolvent insurer, did not respond to the claim and took no part in the proceedings. That is not to say there is no potential paymaster however, as the FSCS agreed in principle to indemnify but took issue with the fact that an action had been brought directly against the insolvent insurer. That issue of whether the FSCS is liable for the judgement against the insolvent insurer was not resolved during the current action.

Second Defendant

The Second Defendant expressly denied that the 2010 Act applied or operated to confer any cause of action against the insurers. The Second Defendant contended that any liability of the insured to the Claimant was incurred prior to the commencement of the 2010 Act and accordingly it did not apply.

Settlement was reached with the Second Defendant shortly before trial for £650,000 plus an indemnity for future treatment costs. This left a shortfall of about £200,000 on the total claimed (which was £854,076.23 per the schedule of loss) which is the sum which the Claimant went to trial on in the action against the First Defendant.

The 2010 Act

The 2010 act operates to transfer to third parties’ the rights against the insurer that the ‘relevant person’ has when that relevant person incurs an insured “liability”. This is set out in section 1 of the 2010 Act which provides (emphasis added):

(1) This section applies if—

(a) a relevant person incurs a liability against which that person is insured under a contract of insurance, or

(b) a person who is subject to such a liability becomes a relevant person.

(2) The rights of the relevant person under the contract against the insurer in respect of the liability are transferred to and vest in the person to whom the liability is or was incurred (the “third party”).

(3) The third party may bring proceedings to enforce the rights against the insurer without having established the relevant person’s liability; but the third party may not enforce those rights without having established that liability.

What this means in the context of a Claimant suing an insurer directly in a PI action is that the Claimant is vested with the right to bring a claim directly against an insurer who provided relevant EL / PL cover so long as the employer/occupier is a relevant person (i.e., either in some kind of insolvency situation or dissolved). The rights are enforceable once liability is established and liability is established under the 2010 Act by a declaration of the insured’s liability. It should be noted that this marks an important departure from the 1930 Act, which the 2010 Act repealed, which required liability to be established against the insolvent company/person before the claim could be brought against the insurer and before details of applicable insurance could be obtained.

The Issue

The central issue was whether the former employer had “incurred a liability” (that phrase being used in s1(1) of the 2010 Act) before 1 August 2016, the date that the 2010 Act came into force, such that the Claimant was entitled to bring the claim against the insurers directly.  

That task was made  easier  as Redman v Zurich Insurance Plc [2017] EWHC 1919 (QB) had already decided what the phrase “incurs a liability” means in section 1(1) the 2010 Act:

“Liability is incurred when the cause of action is complete and not when the claimant’s rights against the wrongdoer are thereafter crystallised whether by judgment or otherwise.”  [23]

In Keegan, there was no issue that the negligence occurred long before 1 August 2016 (the tortious exposure was between 1972 and 1984). The issue was when was damage, sufficient to complete the cause of action, sustained.

Discussion of the case

The Court considered the relevant case law on actionable damage fully and thoroughly the cases of Cartledge v E Jopling & Sons Ltd [1963] AC 758; Pirelli General Cable Works Ltd v Oscar Faber & Partners (A firm) [1983] 2 AC 1; Hicks v Chief Constable of South Yorkshire Police [1992] P.I.Q.R. p433; Rothwell v Chemical & Insulating Co Ltd [2008] AC 2981; Dryden v Johnson Matthey PLC [2018] UKSC 18 all being considered. The Court also considered the insurance cases, and in particular The Trigger litigation and whether that shed light on when actionable damage arose in the context  of mesothelioma.

This is accordingly a fully considered decision albeit one-sided as the First Defendant was unrepresented and the Second Defendant did not, and could not, make any submissions to prejudice the position of Zurich in light of the agreement with the Claimant. Accordingly, Yip J’s finding that it is only when the mesothelioma “manifests itself by radiological changes and/or symptoms that actionable damage occurs. Until then, the claimant is not appreciably worse off either physically or economically.” is a decision to be treated with the utmost respect. Following this decision, it is our view that the mere fact that an insurer has been sued directly is no reason for judgment not to be entered at the show cause stage.

Further Yip J’s indication that where symptoms onset after 1 August 2016 it is for the Defendant to prove that actionable damage in fact occurred is important. It is no longer tenable, it is suggested, for a Defendant to baldly assert at a show cause that the cause of action was complete before 1 August 2016 where symptoms onset much later: such an assertion would fail to meet the burden (whether evidential or legal) which Yip J indicated applies.

Finally it would be churlish to quibble with Yip J over whether actionable damage occurs at the point of asymptomatic pleural effusion or the onset of symptoms as it will be irrelevant to the question of whether the cause of action was complete before or after 1 August  2016: as Yip J noted, “On either basis, I am satisfied that there was no actionable damage until long after the commencement date of the 2010 Act.” That, it is suggested, will be the same in any mesothelioma diagnosed in the past few years.

12KBW Release 2nd Edition of ‘Asbestos: Law and Litigation’

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The new edition is essential reading for all those practicing in this area. It features key updates on damages in fatal asbestos disease claims, litigation concerning exposure in schools, costs and procedure, and much more.

The book can be ordered online here.

Brooks v  Zurich v Aviva [2022] EWHC 1170 (QB) A stitch in time: claiming direct against the insurer

John-Paul Swoboda acted for the Claimant and is instructed by Melloney Harbutt of Boyes Turner.

On 1 August 2016 the Third Parties (Rights against Insurers) Act 2010 came into force. That, on the face of it, was a big moment in civil litigation as with the passing of that Act there was, or should have been, a significant reduction in the time taken to resolve complex litigation involving an insolvent or dissolved company. On the face of it, therefore, the passing of the 2010 Act was a big moment for mesothelioma[1] victims because where it had often proved difficult to resolve the thorniest claims in life previously there was now an Act which could save a lot of the time: the roughly six months needed to get a company restored to the register; however long it took to get judgment against the restored company (which admittedly can be a very quick process because of the asbestos list), and perhaps years to resolve any insurance coverage disputes[2]. The 2010 Act allowed three sets of proceedings to be brought in one, and what’s more the proceedings could be brought in the highly efficient asbestos list which oozes with experience and undoubtedly gives claimants the best shot of resolving claims in life if that is what they want.

On 20 May 2022 Master Davison handed down judgment in a strike-out application in Brooks v Zurich v Aviva where the defendants sought to argue that the claim under the 2010 Act was misconceived on the basis that the claimant’s cause of action was complete prior to 1 August 2016 and therefore the 2010 Act did not apply. It did not matter that the claimant did not have any symptoms until March 2020 said the defendants as it became inevitable that the claimant would suffer mesothelioma from the date of angiogenesis (the date where the tumour in the body develops its own blood supply) and this they asserted was prior to 1 August 2016. This argument was made on the basis not so much of the law of the Trigger litigation but on the discussion of the science and medicine. The defendants argument in an nutshell is that once the mesothelioma is inevitable the Claimant is worse off and his cause of action complete even though he may not know about the disease for perhaps 5 or 10 years.

Master Davison summarised the Claimant’s position as follows:

  1. A physical change, or even something that might properly be called an “injury” did not necessarily amount to actionable damage.  In each case, the question was whether that change was “material” or left the claimant “appreciably worse off”.
  2. The words used by the House of Lords in Rothwell and other high authorities to define the concept of actionable damage such as “appreciably”, “perceptibly” or “materially worse off” all necessarily implied that damage was detectable or capable of measurement.  For example, “appreciable” meant “capable of being estimated or assessed”.
  3. Relying on the medical evidence in this case and on paragraph 52 of the judgment of Rix LJ in the Durham v BAII trigger litigation, Mr Swoboda said that the pathogenesis of mesothelioma was, until its late stages, undetectable and undiagnosable and so, by definition, incapable of measurement or assessment.
  4. At the (still relatively early) stage of angiogenesis, the tumour would cause no symptoms and would be undetectable.  Although that state of affairs might constitute a physical change in the body (albeit an unknowable one), the claimant was not appreciably / perceptibly / materially worse off because there were as yet no deleterious effects and no damage that was susceptible to detection or measurement.
  5. It did not matter that at that stage the “die was cast”, (if it was).  The inevitability of progression of the disease was, by itself, irrelevant.  A latent injury or a latent loss of amenity did not sound in damages; see Guidera v NEI Projects (India) Ltd (1988) (an asbestosis case).
  6. In any event, whether there was actionable damage was, in each case, a question of fact.  Here, there was no medical evidence relating specifically to the claimant as to the precise date of angiogenesis.  Dr Rudd’s evidence about the date of angiogenesis was only an approximation based upon epidemiological evidence.  The date of angiogenesis in the claimant’s case might have been less than 5 years prior to clinical manifestations.  Although the claimant would bear the legal burden of proving his claim, he would discharge that burden by reference to the fact that liability was admitted and that he first manifested symptoms in March 2020, (see the speech of Lord Pearce in Cartledge at 784).  On the basis of the maxim “he who asserts must prove” it would then be for the defendants to show that he suffered damage at a date earlier than 1 August 2016 – a burden which, on the present state of the medical evidence, they would not be able to discharge.
  7. There was, similarly, no evidence specific to the claimant of the point in time when the progression of his disease became inevitable, whether that point in time was (as the defendants contended) angiogenesis or some other time.  Thus, even if the defendants were correct in their contention that actionable damage occurred when the “die was cast”, they had not shown when it was cast.

Against this backdrop, Master Davison, dismissed the defendant’s strike out application. Deciding the point at which the Claimant suffered compensable damage to complete his cause of action was ‘medically and legally controversial’ and therefore not susceptible to a strike out application. Further the law was still developing.

This is then, just the first round and not a determination of whether the Defendant or Claimant’s argument is correct. That will have to be determined at the trial in late July or in another case. But it can no longer be asserted that a claim under the 2010 Act is misconceived as leading counsel for the defendant contended in this case. The consequence of that is that claimants ought not to face delay from interlocutory applications where the 2010 Act is relied upon. And in many cases involving a defunct past employer where a claimant’s top priority is resolution in life the 2010 Act still provides the best shot of achieving that aim. This judgment then takes mesothelioma victims a step closer to using the 2010 Act as it was intended to be used.


[1] Or indeed any complex asbestos litigation

[2] Relying on the Third Parties (Rights against Insurers) Act 1930

Watt v Lend Lease Construction (Europe) Ltd [2022] CSOH 23: Adopting Abraham

Elle Duckenfield and Michael Rawlinson QC considers the Scottish judgment of Lord Uist in the case of Watt v Lend Lease Construction (Europe) Ltd [2022] CSOH 23.

On 3 March 2022 the Outer House of the Court of Session gave judgment in this fatal Scottish mesothelioma case. The judgment can be read here

Background

The late Mr Watt was employed by the defenders, formerly known as Bovis Construction Limited (“Bovis”), as a joiner between January and June 1963. 

Mr Watt died from mesothelioma in January 2017. Mr Watt’s widow, Nicola Watt, brought an action against his former employer for negligence and breach of Regulation 20 of the Construction (General Provisions) Regulations 1961 (“the 1961 Regulations”). Regulation 20 (since repealed) held that:

“where in connection with any grinding, cleaning, spraying or manipulation of any material, there is given off any dust or fume of such a character and to such extent as to be likely to be injurious to the health of persons employed all reasonably practicable measures shall be taken either by securing adequate ventilation or by the provision and use of suitable respirators or otherwise to prevent inhalation of such dust or fume.”

Prior to his death, Mr Watt provided a statement describing significant exposure to asbestos dust during his period of employment with Bovis. Bovis disputed this and argued that Mr Watt had experienced secondary, intermittent and low-level exposure for 3 or 4 days only. Damages were agreed last minute, subject to the finding on liability. 

The main issue in this case was foreseeability; whether Bovis were or ought to have been aware that Mr Watt was exposed to asbestos levels giving rise to a risk of asbestos-related injury whilst in their employment. 

To establish the date of knowledge of the dangers of asbestos as 1960-63, the pursuer relied upon Wagner’s 1961 paper, the mid-1950’s Annual Report of the Chief Inspectors of Factories and the HM Factory Inspectorate guidance on working with asbestos. The Defenders greatly relied on Swift J’s judgment in Abraham v G Ireson and Sons (Properties) Ltd [2009] EWHC 1958 (QB), in which Her Ladyship held that the earliest date for which employers can be fixed with foreseeable knowledge is the 1965 Newhouse and Thomson paper.

The Judgment 

Lord Uist commented that it was not necessary for him to reach a decision on the degree of Mr Watt’s exposure to asbestos in terms of fibres/ml. The judge did however accept the broad brush description of Mr Watt’s asbestos exposure provided by Professor Willey, the defenders’ occupational safety and health consultant, as “secondary, intermittent and low level over a period of 3 or 4 days” [16]. 

Lord Uist held that Wagner’s 1961 paper was not sufficient to prove that Bovis ought to have reasonably foreseen a risk of injury to Mr Watt. Adopting the approach of Swift J in Abraham, Lord Uist upheld the 1965 Newhouse and Tomson paper as marking the point at which employers could, or ought to, have knowledge that lower-level exposure to asbestos gave rise to the risk of injury. 

Therefore, Lord Uist found that it was not reasonably foreseeable for Bovis to have known that Mr Watt was exposed to the risk of asbestos-related injury. Their failure to take steps to protect Mr Watt against exposure was not negligent. For the purposes of the 1961 Regulations, it followed that Bovis could not have been aware that the asbestos exposure was “likely to be injurious” to Mr Watt. As such, it was not reasonably practicable for Bovis to take steps to protect Mr Watt from it. 

Comment

This is a reminder of the significance of the level of exposure when determining the date of knowledge for breach. The key document that continues to be heavily relied upon by judges is the Newhouse and Tomson’s 1965 paper. It appears that claimants will continue to encounter an uphill challenge in establishing knowledge in low-level exposure cases prior to 1965. There is no doubting the importance of this document: it was described by HHJ Hickinbottom (as he then was) in Jones v Metal Box as a ‘watershed’. It has become a trope of mesothelioma litigation that almost every employer from that date onwards is stuck with the constructive knowledge that there was no safe level of exposure to asbestos and that even trivial exposures could cause that disease. What perhaps is less well known is that the paper published in 1965 was given a prior airing at the 1964 WHO Symposium on the “Biological Effects of Asbestos’ held in New York. Morris Greenberg has written of the Symposium

“Contributors to the  report,  with  its 705  pages  of  text ,constituted  a  contemporary  International  Who’s  Who  of academics, industry experts, and civil servants involved in the fields of research and control of asbestos and its effects. Its contributions varied qualitatively and quantitatively, but overall it constituted an excellent compendium of the state of knowledge of the physical and health aspects of exposure to dusts containing asbestos”[1]

It must raise the question (since the UK was present via members of its civil service)  whether UK bodies under public ownership at the time of 1964 can be taken to have acquired their ‘watershed’ constructive knowledge qua employers in 1964 rather 1965. Such an argument against a public body has not yet been run at trial to the best of our knowledge.

Additionally the case raises issues on causation of how to establish that exposure represents a material increase in risk and whether a detailed quantitative finding is necessary. Lord Uist’s comment that a detailed quantitative finding on exposure was not required is an interesting point. On its face this is inconsistent with Geoffrey Tattersall QC’s approach in Bannister v Freemans [2020] EWHC 1256 (QB) where the latter  concluded that he should “make findings as to the deceased’s actual level of exposure to asbestos” [157]. Despite this specific comment, Tattersall QC went on to accept that this quantitative finding may be imprecise. This leads to the question of whether an imprecise quantitative finding is adequate for a detailed quantitative finding or whether it is simply a qualitative finding masquerading as one. On balance, it would seem relatively clear that Lord Uist’s approach more closely reflects the orthodox and authoritative guidance provided by Maurice Kay LJ in Cox v Rolls Royce of India @ [21]; by Sedley LJ in Willmore (CA) @ [7-12]; by Lord Phillips in Sienkiewicz(@ [108] and (by implication) by Underhill LJ in Bussey @ [62] namely that only qualitative findings as to dose should be made. With respect, Mr Tattersall QC’s approach now appears to be the outlier.


[1] Biological Effects of Asbestos: New York Academy of Sciences 1964 (AMERICAN JOURNAL OF INDUSTRIAL MEDICINE 43:543–552 (2003)

TDX v Raven Mount Services Company Ltd: Parent company liability in the construction context

Mary Mulhall of Hugh James and John-Paul Swoboda discuss the recent  case of TDX v Raven Mount Services Company Ltd, where they acted for the Claimant, and provide some practice points in cases where you are suing a parent company.

At the heart of this case was one question, did the parent company (the Defendant) owe the deceased a duty of care in respect of his safety whilst at work? If they did then liability followed, it having been admitted that asbestos exposure was negligent and causative of the deceased’s mesothelioma. The case settled on favourable terms to the Claimant at about 5pm on the day before trial.

TDX, the Claimant, was the deceased’s daughter. The deceased also had an adult son, TSX, who suffered from profound disability. Prior to mesothelioma TSX relied entirely on his father, the deceased, for his many care needs. Because TSX lacked capacity the proceedings were anonymised.

The case arose from 18 months of exposure to asbestos in the construction industry during 1962/63 to 1963/64. The deceased was a labourer working next to carpenters sawing AIB and laggers. His employer, according to HMRC records, was a company known as Holliday and Greenwood (H&G) but no insurance could be traced. However, the deceased recalled working for Higgs and Hill (H&H), the predecessor in title to the Defendant, who were the parent company to H&G and who remain an active company. 

We argued that parent company liability arose because H&H’s parent/ subsidiary relationship with H&G was at the extreme end where the de jure difference of legal personality was, in practice,irrelevant. We argued H&G was controlled legally, administratively, and in practice by H&H; that key aspects of the business (e.g. costings, plant, stores, wages, consideration of accidents) where carried on by H&H as though H&G and H&H were a single commercial undertaking. Whilst H&G in theory had their own staff we argued the evidence suggested employees did not distinguish between H&H and H&G (with the deceased indicating he thought he worked for H&H). We said in light of the above H&H owed a duty to the deceased in respect of his work and his safety whilst at work.

Practice points

Our experience litigating this case has highlighted some practice points which we hope may be useful for practitioners considering bringing an action against a parent company.

Firstly, if the facts are right, one should be prepared to allege parent company responsibility/liability in any context. To put it another way although Chandler v Cape [2012] EWCA Civ 525 was concerned with parent company liability in an asbestos factory, and subsequent cases, such as Okpabi v Shell [2021] UKSC 3 (oil spills from pipes in the Niger delta)Lungowe v Vedanta [2019] UKSC 20 (Zambian copper mine discharge causing PI and property damage), are mass torts occurring overseas, there is no reason in principle why parent company liability may not arise in the construction industry (as alleged in this case) or in any other industry. Parent company liability provides an alternative route to establishing liability which may prove invaluable where the employer is dissolved and no insurer can be traced.

Secondly, parent company liability in the terms cast by Okpabi, Vedanta and Chandler is not the only route to establish parent company liability. The courts have, in recent years also described a concept known as “dual vicarious liability”. The Supreme Court in Various Claimants v Catholic Child Welfare Society [2021] UKSC 56) said this doctrine may apply where the employee “is so much part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence.” A further doctrine of some assistance may be transferred employment/ borrowed employees. As described in Bowstead and Reynolds on Agency “An employee, X, may be in the general employment of A, but, as the result of arrangements made between A and B, X may be acting as the employee of B, so as to make B, and not A, responsible for X’s tort at the relevant time. The test is whether X is transferred, or only the use and benefit of X’s work, and this depends upon the extent to which A places X under the control and at the disposition of B.” Finally, of course one must not lose sight of the fact that many of the regulations relevant to asbestos litigation do not require a pre-existing relationship of employment but rather the relevant test is control or whether the sued person was an occupier (cf. McDonald v National Grid Electricity [2014] UKSC 53). Which legal doctrine is best suited ought to be determined by the evidence.

Thirdly, the mantra of evidence, evidence, evidence is key if a parent liability case is to be won. Whether there is sufficient intervention or control of relevant activities for a duty to be imposed depends heavily upon the contents of documents internal, or passing between, the subsidiary and parent (cf. para 44 of Lord Briggs’ judgment in Vedanta and para 129 of Lord Hamblen’s judgment in Okpabi). Where exposure to asbestos occurred decades previously documentary evidence is likely to be incomplete. That is not to say there will be no documentation but rather it will take determination to obtain such documents as still exists. Trips to archives (local and national), libraries, and the locality are de rigueur. Full company documentation from Companies House (subsidiary and parent) may be required. 

Fourthly, if you’re brining a case like this it may take a certain leap of faith at the outset. That is because the defendant (the parent company) may have much by way of disclosure but you probably will not get full disclosure until after issue and service and possibly (as happened in our case) disclosure will continue until the date of settlement. From a practical point of view this might mean needing to update the pleadings with the disclosure.

Finally, the level of intervention in the management of the subsidiary requisite to give rise to a duty of care is a “pure question of fact” (cf. para 44 of Lord Briggs’ judgment in Vedanta). The determination of that question of fact is dependent upon interpretation and evaluation of evidence by the judge. That means two things. Different judges can legitimately come to different conclusions. Second, and interconnect to the first, any appeal on a question of fact will be difficult. Accordingly, to win a case like this we think there needs to be a powerful and persuasive narrative as to why the parent ought to be held liable. 

Haggerty-Garton & five ors v Imperial Chemical Industries Ltd

Judgment was handed down on 3 November 2021 following a two-day assessment of damages hearing before Ritchie J in this unusual fatal mesothelioma claim where the applicable law was Scots law. Judgment for the First Claimant, Charmaine Haggerty-Garton (the widow), was given in the sum of £614,040. Dushal Mehta of Fieldfisher and John Paul Swoboda or 12 KBW represented the First Claimant and her three children.

The judgment can be found here.

An article provide more information on the facts of the case can be found here.

This claim was unusual as Scots law was the applicable law despite being tried in England. This gives PI practitioners north and south of the border a chance to consider what is the same and what is different in personal injury actions. There are two huge differences: awards of general damages for ‘loss of society’ for relatives and interest.

Loss of society is a head of loss completely unknown to English law which allows for a general damages award for close relatives who can establish a sufficient relationship with the deceased. In this case there were nine relatives who made such a claim. Five relatives (two daughter from a first marriage, two sisters, and a granddaughter) were joined into the action two days prior to trial and settled their claims one day prior to trial. The other four relatives were the widow Charmaine Haggerty-Garton and her three sons. Their loss of society awards for (a) distress and anxiety endured in contemplation of the deceased’s suffering, (b) grief and sorrow caused by the deceased’s death and (c) the loss of such non-pecuniary benefit as they may have derived from the deceased’s “society and guidance” fell to be determined by Ritchie J. He made an award of £115,000 for the widow Charmaine and awarded between £40,000 to £35,000 for each son. By contrast no general damages award would have been made under English law and there would have been a statutory entitlement to £12,980 for bereavement for the widow only. 

Ought the Scots law approach to be adopted in English law? There is certainly a case to be made but it is ultimately a question of policy as to whether English law should follow Scots law in allowing general damages claims for relatives when a loved one has died as a result of a tort. It is however undeniably the case that Scots law is more generous in the assessment of general damages for relatives in fatal cases and it is not wholly satisfactory that there should be such divergence between the Scots and English law on this issue.

The other huge difference between the approach under Scots law and English law is in respect of interest rates. Whilst English law interest rates languish at 0.025% in respect of special damages and 2% for general damages Scots law is much more generous with interest being claimable at 8% and 4% depending on the head of loss. Interest in this case amounted to over £40,000. It is inconceivable that anything like this amount would have been recovered under English law.

Two other points from the judgment may be of broader interest to PI practitioners. Firstly, in respect of the claim for loss personal services (equivalent to a services dependency claim) Ritchie J found the ONS paper “2016 Household Satellite account on household service work done through the UK” which provided a figure of £18,932 on the value of unpaid household service work undertaken per person was “helpful” but said he had difficulty in understanding what the survey meant. The extent to which this ONS paper (which suggests many services dependency claims have been undervalued where impressionistic awards were made) influences future claims is still a matter for debate (and future cases).

Secondly, the Court also had to consider what the appropriate award for Solatium (the Scots law equivalent to PSLA) was. This was a case where the deceased suffered terribly particularly towards the end of his life. He endured the symptoms of mesothelioma for some 13 months. An award of £97,250 was made confirming the trend that most awards in mesothelioma cases are likely to fall in the higher part of the JC bracket.

Paramount v Rix [2021] EWCA Civ 1172

This post was written by Harry Steinberg QC.

Yesterday morning, little more than a month after the hearing, the Court of Appeal handed down judgment in Paramount Shopfitting Company Ltd v Rix [2021] EWCA Civ 1172. It is the latest in a series of decisions about how the courts should assess loss of income where mesothelioma hits a family business.

Facts

Mr Rix contracted mesothelioma as a result of the defendant’s negligence and died aged 60. He had been the founder and driving force of a successful joinery business. The judge, Cavanagh J, described him as a “… remarkably talented and dedicated businessman.” He and his wife held 80% of the shares between them and their two sons held the remaining 20%. The business consistently generated a gross annual profit of more than £300,000, but they retained most of the profit within the business to enhance its value. 

The family business continued to thrive after Mr Rix’s death and generated greater profits in the subsequent years

Mrs Rix claimed as his widow and dependant. She contended that her loss of financial dependency under s.3 of the Fatal Accidents Act 1976 was her share of the annual income to which they would jointly have been entitled had Mr Rix lived (basis 1). Alternatively, she claimed by reference to replacing the cost of his services to the business (basis 2). The defendant contended that there was no loss since the family business had been more profitable after Mr Rix’s death and she had inherited his shares and retained her own. 

The Judge’s decision 

The trial judge, presented with these alternatives, decided that there was a loss of dependency and held that basis 1 was the appropriate method of calculation. The business was not a ‘money generating beast’ and the income was derived from Mr Rix’s efforts – his skill and acumen – and not from a capital asset. 

Grounds of appeal

The Defendant was permitted to appeal on three grounds. First, the Judge was wrong to assess the loss of dependency by reference to all the profits which accrued to Mr and Mrs Rix without regard to whether those profits survived his death and continued to accrue. Secondly, the Judge was wrong to treat Mrs Rix’s shareholding as if it had belonged to Mr Rix. Finally, the Judge was wrong not to deduct Mrs Rix’s surviving income from her shares in the calculation of the loss. 

On appeal

The Court of Appeal unanimously dismissed all three grounds of appeal.

Nicola Davies LJ, giving the lead judgment, held that the earlier authorities, Wood v Bentall [1992] PIQR 332, Cape vO’Loughlin [2001] EWCA Civ 178 and Welsh Ambulance Services NHS Trust & Anor v Williams [2008] EWCA Civ 81, did not establish a principle that a business should be treated as a capital asset which will continue to produce a flow of income regardless of the death of the prime mover and driving force. 

On the facts, there was ‘no identifiable element of the profits which was not touched by the management of Mr Rix’. The loss was the income that would have been generated by Mr Rix’s services to the business, irrespective of the fact that the business retained the capital assets. It was therefore logical to treat the whole profit available to Mr and Mrs Rix as earned income and part of the financial dependency. Accordingly, there was no sound objection to basis 1 and the first ground of appeal was dismissed. 

The second ground of the appeal – that the Judge should not have treated Mrs Rix’s share as if it belonged to Mr Rix – was dismissed on the basis that it is established by authority that the Court must look at what the underlying reality of the situation. It appears, curiously, that the defendant relied on Ward v Newall [1998] 1 WLR 1722, which on the face of it seems to be directly contrary to defendant’s argument. 

The final ground of appeal was dismissed on the basis that the finding that the income of Mr and Mrs Rix – whether in the form of salary, dividends or profits – was wholly attributable to Mr Rix’s endeavours and earning capacity. This left no room for any deduction for income that would survive his death. Any such deduction would also contravene the principle that dependency is fixed as at death. 

Discussion

The outcome was a resounding success for the claimant and a decisive statement about how the Courts should treat claims of this type in the future. 

The decision is of considerable general importance. Where the injured party in a mesothelioma case has a fixed or regular income, the assessment of ‘financial dependency’ is essentially basic arithmetic. But, increasingly often, in cases such as Rix and Head v Culver (on remarkably similar facts), the loss is both more substantial and controversial. The central difficulty is how to disentangle that part of the profit which is derived from the residual value of the shares, which may be bound up in the company assets or intangible factors such as the goodwill and the existing customer base. 

The Court of Appeal recognised that, in principle, it is necessary to distinguish between loss of income derived from services and income derived from a capital asset. As Staughton LJ pithily put it in Wood, you cannot claim for the loss of the eggs if you have inherited the goose. 

But that principle, until now at least, has been difficult to apply. 

The Court of Appeal did not opt for the quasi-compromise position represented by basis 2 and the cost of replacing Mr Rix’s services (although, it should be remembered, the defendant rejected this approach too). Instead, the Court of Appeal tackled the question of how to assess this type of loss head on. 

Underhill LJ identified the problem with precision: 

“The real question is how that distinction works in the case of a small or medium-sized business with substantial assets, where the deceased (typically, but not necessarily, the founder) is not only the owner but the main person whose work and decisions generate the profits and thus the income which he takes out of the business and which the wife enjoys.” (para 76)

In a key passage, at para 60, Nicola Davies LJ answered the question as follows: 

“Income is only derived from capital if it is identifiable as having been received without the labour and services of the deceased. In short, it is passive.”

Underhill LJ found the answer lay in the old decision of Staughton LJ in Wood in which Staughton LJ held that, in assessing the loss in this situation, the court had to decide how much of the deceased’s was ‘derived solely from capital’. Applying this reasoning, Underhill LJ held

“I take that to mean that it is irrelevant that the capital has in one sense made the earning of the income possible.  The income is only “derived from capital” if it is identifiable as having been received without the husband’s services – in short, if it is passive.”   

Nicola Davies LJ, at para 54(iv), used the same language in articulating the core principles. 

The Court of Appeal has seemingly come up with a practical solution which is to give the injured party, rather than the tortfeasor, the benefit of the doubt. Valuable cases are rarely decided by the burden of proof, but if the only income that is it be deducted is that which is ‘derived solely from the capital’ then it rests with the defendant to prove that which falls into this category. 

This is consistent with (a) the Court of Appeal’s recognition that damages under the fatal accidents act may be greater than would be justified on a strict view of the dependants’ loss (para 54vi) and (b) the fairwind principle which gives the benefit of the doubt to the injured party where the tort makes the future uncertain. 

The Convention Against Cost Budgeting in the Asbestos List: Smith v W Ford & Sons (Contractors) Ltd [2021] EWHC 1749 (QB)

Samuel Cuthbert discusses the judgment of Master Davison in  Smith v W Ford & Sons (Contractors) Ltd [2021] EWHC 1749 (QB) which reasserts the convention that costs budgeting does not apply to cases in the Asbestos List. 

Background

There is a convention that cost budgeting is disapplied for cases in the Asbestos List. This is captured in the White Book commentary at 3DPD 5.3 as follows:

“The convention of dispensing with costs budgeting in asbestos disease cases has been reinforced by the introduction of PD 3E paragraph 2(b) which indicates that in all cases where there is limited or severely impaired life expectation (five years or less remaining) the Court will ordinarily disapply costs management.”

In this case, the Defendant had made an application to displace this convention and impose costs budgeting. Master Davison’s judgment, given ex tempore on that point in the course of the CMC, has wider application for cases in the Asbestos List.

The Judgment

Master Davison dismissed the Defendant’s application and dispensed with costs budgeting. The Master held that the convention that budgeting be dispensed with reflects the fact that matters typically need to progress very quickly in the Asbestos List. Both case management and final hearings are often listed comparatively soon after the issue of the Claim Form. Further, the Asbestos Masters do not distinguish between mesothelioma, asbestosis cases, and fatal cases for the purposes of listing. All such cases are listed for CMC very quickly, despite the differences in life expectancy in those categories of cases. Such listing arrangements cannot accommodate costs budgeting. 

Master Davison’s judgment takes the Defendant’s three arguments in turn. 

First, the fact that the case in hand was a deceased case was not significant. No distinction was made on that ground because of the administrative burden it would impose and its potential effect on living cases. 

Second, the fact that this case was a heavily contested trial was also not sufficient to take the case out of the ordinary. Heavy contest is characteristic of lots of asbestos cases, and the expert evidence in such case is also often complex. 

Third, in relation to the Defendant drawing attention to the benefits of costs budgeting across the board, Master Davison held at [9]:

“[…] these factors were considered corporately by the Asbestos Masters and by the senior judiciary who devised the present system and approved the convention that costs budgeting should not usually apply. The factors that are generally in favour of costs budgeting were judged to be subordinate to the factors that I have mentioned.” 

Two further observations were then made in relation to this. The Defendant had not produced any evidence to demonstrate that costs in asbestos cases are disproportionate or inadequately controlled. The Defendant could not therefore displace the convention of dispensing with costs budgeting. Moreover, Master Davison observed that QB Masers, Chancery Masters, and Costs Judges do not agree with the Defendant’s position that costs budgeting controls costs better. He did not recognise the Defendant’s dichotomy that imposing costs budgeting represents tight controls of costs in contrast to the ‘free-for-all’ that ensues without it. 

Comment

This is a notable judgment for asbestos practitioners. As is evident from the opening line of Master Davison’s judgment, it is handed down with the approval of the other Asbestos Masters. Its restatement of the reasons for the convention in favour of displacing costs budgeting in the Asbestos List may head off similar challenges in the future.

Master Davison held at [5] that the listing arrangements cannot accommodate costs budgeting and stated: “And I would add that they cannot accommodate too many debates, or contested hearings, about whether costs budgeting should or should not apply”. The Master’s comment at [9] that this hearing was not the appropriate forum for debates about “complex and somewhat sensitive” issues, speaks to the special considerations that underly the need for an Asbestos List. Practitioners need no reminding of the particular difficulties faced by litigators on this list, the existence of the ‘Show Cause’ procedure, expedited timetabling and case management by specialist Masters serve to meet these difficulties. It is hard to see how cost budgeting can be accommodated within this schema, it is suggested that the Master’s decision is therefore the right one.