Claiming Contribution in Mesothelioma Claims – A Commentary on URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21

Limitation in Living Mesothelioma Contribution Claims

History demonstrates that mesothelioma claims uniquely present particular issues which require careful attention.  The nature of the claims throw up tensions unusual in many other types of claim.  In cases of living victims, the Asbestos List requires such cases to progress to trial expeditiously, where possible.  The same consideration, to facilitate recovery of damages  during a Claimant’s lifetime, also lends itself to early settlement, at a time when the damages may still be utilised in the time left.  Sometimes this means that cases are settled whilst a Claimant is still undergoing treatment for the cancer.  In recent years, immunotherapy treatment has shown greater efficacy at holding the cancer at bay for a period of time.  Thus, cases are often settled, in living claims, by adopting a construction to the settlement which allows for the cost of ongoing immunotherapy to be met by a Defendant insurer pursuant to mechanisms for payment, such as the recommendation of the treating oncologist, which allows treatment to proceed expeditiously.  It is not uncommon in such settlements for the Defendant to reserve a right to return to court if it wishes to challenge the reasonableness of the treatment or its cost at a particular point (although in my experience such challenges are very rare).  Thus, cases often are settled at a point where the full amount of damages which an insurer will have to meet is not yet entirely known.  A settlement agreement or judgment may make awards in relation to calculable heads of damage but leave the cost of immunotherapy outstanding to be dealt with under the mechanism of the agreement or order.

Provided a tortfeasor has materially contributed to the risk of mesothelioma, a Claimant can recover full damages against any such defendant.  It is only necessary for the Claimant to identify one tortfeasor against whom causation can be made out on a Fairchild basis to recover full damages – see section 3 of the Compensation Act 2006.  Thus, a single Defendant, required to meet a judgment or settlement in favour of a Claimant, may wish to bring later contribution proceedings against other tortfeasors whom the Claimant had not needed to pursue.

A claim for contribution by one insurer on risk for a period of culpable exposure against another is a claim for damages, rather than a debt, and so falls within section 1(1) of the Civil Liability (Contribution) Act 1978 – see RSA Insurance Plc v Assicurazoni Generali SpA [2018] EWHC 1237 (QB).  Thus, the limitation period in section 10 of the Limitation Act 1980 applies.  That provides that, where a person becomes entitled to a right to recover contribution in respect of any damage from any other person, “no action to recover contribution by virtue of that right shall be brought after the expiration of two years from the date on which that right accrued”.

Section 33 of the Limitation Act 1980 does not apply to claims for contribution – see section 10(5).  Thus, the limitation period is significant, and if it is missed there is no way back and the claim will fail.  What, though, constitutes the date on which the right to recover contribution accrued?

The Act purports to define this, at section 10(2), (3) and (4):

“(2) For the purposes of this section the date on which a right to recover contribution in respect of any damage accrues to any person (referred to below in this section as “the relevant date”) shall be ascertained as provided in subsections (3) and (4) below.

(3) If the person in question is held liable in respect of that damage –

• by a judgment given in any civil proceedings; or
• by an award made on any arbitration;

the relevant date shall be the date on which the judgment is given, or the date of the award (as the case may be).

For the purposes of this subsection no account shall be taken of any judgment or award given or made on appeal in so far as it varies the amount of damages awarded against the person in question.

(4) If, in any case not within subsection (3) above, the person in question makes or agrees to make any payment to one or more persons in compensation for that damage (whether he admits any liability in respect of the damage or not), the relevant date shall be the earliest date on which the amount to be paid by him is agreed between him (or his representative) and the person (or each of the persons, as the case may be) to whom the payment is to be made.”

In case of a judgment or an award made on arbitration, accordingly, time runs from the date of the judgment or the award.  In that case, the judgment or award must ascertain damages – see Aer Lingus PLC v Gildacroft Limited [2006] 1 WLR 1173.  Judgment on liability, even if accompanied by an interim payment, is insufficient to trigger the limitation period – see Jellett v Brook [2017] 1 WLR 1177.

Section 10(4) applies where there is no judgment.  Where a claim is settled, accordingly, time begins to run where the defendant agrees to make any payment from “the earliest date on which the amount to be paid by him is agreed”.  That begs the question, what has to be agreed before time begins to run?  This is particularly important in cases where some payment falls to be made after the settlement, in the future, as in the example of immunotherapy payments above.  If a living mesothelioma claim is settled, does time run from the date of the original settlement or from the date when the final immunotherapy payment is agreed or authorised?  The question is of critical importance to insurers seeking contribution and the consequence of getting it wrong may be serious, preventing recovery of contribution from the insurers of other culpable tortfeasors.

It is only damages which have to be ascertained in order to trigger time running.  The ascertainment of any costs liability, which would generally form part of any claim for contribution, is an ancillary matter which can be left to later without delaying the running of time – see Chief Constable of Hampshire Constabulary v Southampton City Council [2014] EWCA Civ 1541.  Similarly, a later order will not delay or alter the running of time where there has been an earlier settlement, for instance, by the acceptance of a Part 36 offer – see Chief Constable of Hampshire Constabulary ibid.

McGee on Limitation Periods, 9^th Edition, has this to say at paragraph 15.029:

“Section 10(4) states quite clearly that time runs from the date on which the amount of compensation is agreed.  In out of court settlements there may well be a number of other matters requiring to be agreed, such as date of payment, possibility of instalments and method of payment.  However, none of these has any relevance.  Agreement on them will not set time running but absence of agreement on them will not prevent it from running – it is only the amount of compensation that must be agreed.  Knight v Rochdale Healthcare NHS Trust deals with the relationship between section 10(3) and section 10(4).  In a case where an agreement to pay compensation had been made and then embodied in a consent order, it was held that time ran from the making of the agreement and not from the later date when the consent order was made.  Thus, there is no overlap between section 10(3) and section 10(4).  Although it would have been possible for Parliament to provide that the making of the consent order reset the clock, it had not in fact done so.  However, it is likely that the court will want to see evidence of a finalised agreement rather than merely a preliminary agreement.  An agreed interim payment does not set time running for the purposes of section 10(4).  There has to be an agreement as to the total amount of the liability.

At the heart of this is a tension.  Section 10 purports to set out a framework for determining the relevant date which, on its face, may not be the same as the date upon which the cause of action to recover contribution in fact accrued.  This cause of action may accrue at the time of the original claim – justifying the bringing of other parties into proceedings in order to seek contribution.  In such cases, a potential contributor may be joined to proceedings without knowing what the extent of any liability is – in other words, before the relevant date identified in section 10.  On the other hand, section 10 anticipates the conclusion of a claim, with quantification of damages, with that being the trigger for the time limit.  This is unusual in the Limitation Act, where generally the date of accrual of a cause of action and the running of time for limitation purposes will coincide – see sections 2, 6 and 11, for examples.

These questions are now addressed by the Supreme Court in URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21.

Summary

In short terms, the accrual of the cause of action for claiming contribution and the relevant date in section 10 coincide.  That was the interpretation Lord Leggatt placed upon the definitions in section 10(3) and (4).  Whilst it was true that in theory the two dates could differ, “… they can be expected to coincide because, when specifying a limitation period for bringing an action to obtain a remedy, it is natural and normal to take as the start of the period the earliest date when the remedy could be obtained from a court”.  That was the date on which a right to obtain an order for contribution under section 1 of the Contribution Act arose.  Thus: “… the right arises when D1 is ordered (by a judgment or arbitration award) to make, or makes or agrees to make, a payment to C in compensation for the damage.”  Secondly, it was not necessary for the full amount of the liability to have been ascertained either by judgment, admission or settlement for time to begin to run.  This was not the language of the Contribution Act or of section 10 itself.  It is not therefore necessary that all aspects of the damages must be resolved before a cause of action for contribution is triggered under section 1 and time begins to run under section 10.

Thus, the relevant date which starts the two-year period running under section 10 of the 1980 Act will be the date of any settlement or agreement which resolves the question of damages, even if payments for immunotherapy treatment are ongoing and cannot then be calculated.

The Supreme Court Case

The URS Corporation Ltd case arose from the fire at the Grenfell Tower on 14^th June 2017.  The Respondent, BDW, was a developer.  The Appellant, URS, provided consultant engineering services, including provision of structural designs of medium and high-rise flat developments.  The claims arose from design defects in BDW’s developments for which URS had provided structural design services.  Having sold the properties on, BDW brought claims against URS for damage, including reputational damage, and for damages under the Defective Premises Act, including a claim under section 1 of the Contribution Act brought despite the absence of any judgment or settlement.  Indeed, no third party had ever asserted a claim against BDW, who had carried out remedial works amounting to “payment in kind”.  Several complex issues arose for determination by the Supreme Court which do not require consideration here.  For the purposes of this article, the judgment of Lord Leggatt on the interpretation of the Contribution Act and section 10 of the Limitation Act, between paragraphs [209] and [266], represents the material part of the decision. 

It was necessary for the Supreme Court, in order to decide whether any claim for contribution could be made, to determine when the right to recover contribution arose and, if different, when time began to run for the purposes of the limitation period in section 10.  Each party advanced conflicting arguments, the Appellant, URS, contending that no right to recover contribution arose and so time did not begin to run, until the existence and amount of any liability to a claimant had been ascertained by judgment, admission or settlement.  By contrast, the Respondent, BDW, contended that the right to recover contribution arose as soon as damage was suffered, even if it had not yet been claimed by the primary Claimant.  In addressing those arguments, Lord Justice Leggatt concluded that both were wrong and that the true legal position lay in between.  On his interpretation of the Contribution Act, the right to recover contribution arose when damage had been suffered for which both defendants were liable and one of them had paid or been ordered or agreed to pay compensation in respect of the damage to the primary Claimant.  At that point and not before did a contribution claim arise and the two‑year limitation period was triggered.

Lord Leggatt considered carefully the accrual of a cause of action, noting that typically the accrual of a cause of action and the running of time for limitation would coincide.  Having reviewed the authorities, including Aer Lingus, above, Lord Leggatt noted that two essential features of a claim for contribution were an amount of money to be recovered and, secondly, that the amount of the contribution recoverable was a proportion of another amount of money, the original damages.  He therefore concluded that it was impossible for a court to make an order for contribution in favour of one Defendant against another “unless and until an amount of money can be identified of which D2 may be ordered to pay a proportion”.  It was implicit in section 1 of the Contribution Act that D1, the primary Defendant in his example, could only recover contribution “when it has made or been ordered or agreed to make a payment in respect of which the contribution is sought”.  It was not necessary for “payment” in this context to be given a restrictive meaning and it could include payment in kind where it was capable of valuation in monetary terms.  Lord Leggatt accepted that the effect of section 10 was to provide that a right to recover contribution did not accrue until either a judgment or arbitration award was made against D1 or D1 made or agreed to make a payment to the Claimant in compensation for the damage.  He concluded:

“The only way that I can make sense of section 10(4) is to interpret it as meaning that, in any case where D1 makes or agrees to make any payment to C in compensation for the damage, the relevant date is the date when the payment is made or, if earlier, the date on which the amount to be paid is agreed.  In this way, time begins to run, as it does under section 10(3), as soon as there is an identifiable amount of money to which D2 may be ordered to make contribution.”

He then carried on to direct himself that the wording of section 10(1) confirmed that the date of accrual of the cause of action and for specifying a limitation period were confirmed to be the same by the wording of section 10(1).  He concluded:

“It follows that the definition in section 10(3) and (4) of “the relevant date” must be interpreted to match the date on which a right to obtain an order for contribution arises under section 1 of the Contribution Act.”

On that interpretation D1 had no right to recover contribution from D2 before a judgment was given against D1 (or a binding agreement to settle the claim was entered into).  However, such a claim could be initiated before the cause of action had accrued if, for instance, using the procedural machinery of the CPR, a claim for contribution was made in the same litigation as the claimant’s claim against D1.

That still left open the question of the extent to which the damages had to be ascertained or agreed, either under section 10(3) or 10(4).  Lord Leggatt rejected URS’s contention that the right to recover contribution, and so the running of the limitation period, did not arise until the existence and amount of D1’s liability had been ascertained by a judgment, an admission or a settlement.  In Lord Leggatt’s view, there was no basis for this additional requirement to be found either in section 1 of the Contribution Act or section 10 of the Limitation Act 1980.  In deciding what the legislation meant, the starting point had always to be the words which Parliament had enacted.  Examining how courts had interpreted earlier legislation (which was the approach taken in Aer Lingus) was a secondary form of reasoning and unlikely to assist where the language of later legislation was notably different.  For that reason, the decisions under the Law Reform (Married Women and Tortfeasors) Act 1935 were of limited assistance and did not resolve the question, which the court approached on the basis of the statutory wording.  He thus concluded at [263]: “In cases where (in the absence of a judgment) D1 has made or agreed to make a payment to C, I think it impossible to interpret the language of section 1 of the Contribution Act as making it a condition of D1’s entitlement to recover contribution that the payment was made, or agreed to be made, in settlement or compromise of a claim.”  He carried on, at [265], “Is there any reason of legal policy that would favour requiring D1’s total liability to C to be ascertained before D1 can recover contribution?” and answered the question: “A policy choice to allow contribution to be recovered without requiring D1’s total liability to be ascertained is not irrational or unreasonable.  At all events it is plainly not a requirement that Parliament has imposed.”

Thus, in the circumstances of that case, it was sufficient to establish a cause of action and trigger the running of time that BDW had made a payment in kind by performing remedial works, in compensation for the damage suffered by the homeowners.  It was able to make a claim for contribution on that basis (provided the payment in kind was capable of calculation).

Conclusions

For insurers in mesothelioma cases, this means that once a settlement has been reached and a binding agreement entered into, generally in writing, in the form of a Tomlin order or other agreement, time will begin to run for the purposes of bringing a claim for contribution under section 10 of the Limitation Act 1980 even if future medical treatments are left outstanding.  The running of time is not delayed by the fact that further payments for treatment, whether in the form of immunotherapy or otherwise, have still to be incurred, calculated or ascertained.  An insurer thus should not delay the bringing of contribution proceedings on that basis, and will fall foul of the limitation period if it does so, and delays for a period which exceeds two years.

Thus, the question to be asked in deciding when a claim for contribution may be brought, and when the two‑year limitation period begins to run, is whether or not a binding agreement has been reached between the primary Claimant and Defendant (C and D1) which addresses the issue of damages, even if some matters are left outstanding.  This will not encompass the making of an interim payment but would require some form of binding agreement as to damages themselves.  It need not resolve the issue of costs.  Thus, a settlement agreement which resolves the claim for general damages, together with other claims, for instance, care, loss of earnings, “lost years” and so on will be sufficient even if future costs of treatment or care are left to be calculated at a later date.  As above, the time limit is strict and the cut‑off date is a hard one.  There is no provision elsewhere in the Limitation Act 1980 to extend the period in any way, so that once the two‑year period has expired the chance of bringing a claim for contribution is lost.