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Cause for concern

16 December 2015
Those practitioners dealing with mesothelioma cases will be familiar with the 'show cause' procedure set out in practice directions 3-D of the CPR.

At 6.1 of the CPR the show cause procedure is described as required by the court of its own initiative and usually on the costs in the case basis that the defendant to identify the evidence and legal arguments that give the defendant the real prospect of success on any or all issues of liability. Paragraph 6.2 states that at the first case management conference, unless there is good reason not to do so, the defendant should be prepared to show cause why:

  1. judgment on liability should not be entered against the defendant; and
  2. a standard interim payment on account of damages and (if appropriate) costs and disbursements should not be made by the defendant by a specified date.

The difficulty faced by defendant lawyers at such hearings is exemplified in the decision of Bernard Atkinson v Geoffrey Robinson Limited EWHC 2015 before Mr Justice Foskett.

The case arose from an appeal on the part of the defendant in respect of a decision by Master Gidden to enter judgment at the show cause hearing.

The background to the case was that the claimant was employed by the defendant as a heating engineer in the period from 1981 to 1995. The claimant later developed mesothelioma which he alleged was as a result of asbestos exposure during the course of his employment with the defendant. Liability was denied. Medical evidence was submitted by the claimant which confirmed the diagnosis and supported causation.
 

Following the commencement of proceedings the case proceeded to a show cause hearing. At that hearing the claimant relied upon two witness statements from former employees of the defendant as well as his own statement. Five statements were served on the part of the defendant. The claimants evidence alleged that his duties included removing old asbestos lagging from boilers and re-lagging of boilers following the mixing of asbestos which the claimant alleged caused a great deal of dust. The claimant witness evidence from work colleagues supported the removal of asbestos but not the mixing of asbestos. It was accepted by defendant counsel that on the basis of just the claimant's evidence judgment should be entered.

The defendant's evidence was that employees were told to report asbestos if they came across it and not to disturb it but refer it to the relevant person. The removal of asbestos  would then be carried out by a specialist contractor. It was disputed that the claimant had ever mixed asbestos. One of the defendant witnesses did accept, however, that if he discovered a small amount of asbestos lagging he would remove it, but he added this was 'exceptional'.

It was argued on the part of the defendant that the argument of the claimant that he was exposed to asbestos as a matter of course and that he personally mixed asbestos powder for  new lagging was contradicted by the defendant evidence and not supported by the claimants own witnesses  and that this should cast doubt on the claimant's entire evidence. At all events he argued it was sufficient to warrant investigation at a trial.

The court considered the guidance in the case of Silcock v HM Revenue and Customs 2009 EWHC “…at a show cause hearing it is for the claimant to adduce credible evidence in support of his case, and it is only if he does so that the defendant becomes subject to an evidential burden to show cause.  It is further agreed that the correct test is not whether the defendant's case is likely to succeed at trial, but only whether it has some chance of success and that the prospects are not fanciful

The court stated that: the essential question at this stage is whether the decision of the Master that the defendant had no real prospect of success in defending the claim was a judgment that fell within the spectrum of decisions where reasonable disagreement is possible. If it fell within it, even if I or another judge or Master might have reached a different conclusion, there is no scope for interference at this level. If it falls outside it, I must set aside the decision.

The court determined that the Masters conclusion was entirely justified while the court accepted that the claimant's case would advance on the basis that there was continuing exposure to asbestos throughout his employment, the case did not have to succeed in precisely that form to bring home his claim. If the court was satisfied that at some stage during the whole period of his employment by the defendant the claimant had been significantly exposed to asbestos fibres, then sufficient factual exposure would have been established. The onus was then on the defendant to establish such exposure did not amount to a breach of duty.

The court was not satisfied with the evidence of defendant’s witnesses which referred to 'guidance' given by the defendant, which was described as 'very unspecific' as to when and in what circumstances the guidance was provided. 

The court decided that the master was entitled to reach the conclusion the evidence presented to him.

Comment

As was noted by the court 95% of cases are shown to be without an arguable defence.

Practitioners will be aware that such hearings normally take place within weeks after proceedings have been commenced. Very often the defendant will only have the three month period pre-action protocol period to try and gather as much evidence as possible. It may also be difficult to have detailed engineering evidence available in time for the show cause hearing.  Show cause hearings are normally dealt with by telephone with a time estimate of one hour. This is very little time for detailed argument. The defendant will clearly be at a disadvantage against the claimant who has had more time to prepare his case. The defendant may feel aggrieved in the case of Atkinson that notwithstanding that it had produced evidence contradicting much of the claimant's case this was not sufficient for the court to allow the matter to proceed to a liability trial where the witnesses for both parties could be heard and the evidence tested.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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