Philip Turton adds to his article on URS Corporation Limited v BDW Trading Limited. This article can be read here.
Two weeks ago I wrote about the effect of URS Corporation Limited v BDW Trading Limited [2025] UKSC 21 (“URS Corporation”) on claims for contribution in mesothelioma cases. The effect of the decision in the URS Corporation case can be seen clearly from the outcome in Home Office v Chief Constable, my own case which was, at the time, proceeding in the High Court before Soole J. The Claimant has now discontinued that claim in light of the decision in URS Corporation so there is no judgment to be read. Nonetheless the facts and outcome confirm the approach now to be taken to the limitation period for bringing contribution claims under Section 1 (1) of the Civil Liability (Contribution) Act 1978.
The Home Office and the Chief Constable both received letters of claim on behalf of a living Claimant (C) suffering from mesothelioma. In the event C’s solicitors issued his Claim Form against the Home Office only. At all times the Home Office indicated their intention to bring contribution proceedings subsequently and liaised with the solicitors of the Chief Constable as to the terms of settlement. C’s claim was settled by way of a Tomlin order perfected by HHJ Howells on 18th March 2021. At the time of the order C was still alive and undergoing immunotherapy treatment. The order resolved all aspects of quantum which could then be determined, but in relation to ongoing payments for immunotherapy treatment adopted a mechanism set out in the order whereby invoices would be submitted for agreement and payment where treatment was recommended by a treating oncologist, reserving to the (then) Defendant a right to challenge the reasonableness of the treatment or its cost in appropriate circumstances. Where such a challenge was raised the order provided that the Defendant could apply to the Court for a determination. Save for the funding of future treatment, quantum in the case was agreed and the Tomlin Order recorded: “This agreement is in full and final satisfaction of the claim herein and for the purposes of calculating any additional liability to be paid by the Defendant”.
In the event C survived for only a short period following the settlement of his claim. At the time of his death there were three outstanding immunotherapy invoices which together amounted to £1,550.
These invoices were not submitted to the Home Office solicitor for payment until 1st September 2021. In the event there was a delay in the request for payment being addressed and, ultimately, the Home Office authorised payment of the immunotherapy invoices a year later, on 30th September 2022.
The Home Office then brought contribution proceedings against the Chief Constable by way of a Claim Form issued on 19th October 2023.
The Chief Constable contended that the claim was, by then, statute barred, time having begun to run under section 10 of the Limitation Act 1980 on the date of the Tomlin order, 18th March 2021. The Home Office, in contrast, argued that time did not begin to run until all aspects of quantum had been resolved and that had not occurred until the authorisation of the immunotherapy invoices on 30th September 2022. Whilst the position was perhaps less easy for the Claimant, there was force to each argument, there being no binding authority on the issue at the time, particularly in relation to living asbestos cases, where the issue of future payments for treatment often cannot be resolved at the time of settlement. There being no statutory discretion to extend the time limit in section 10, it was thus a high stakes game. If the Defendant was right the claim was statute barred and fell to be dismissed; if the Claimant was right it was not and, subject to liability issues, the Claimant was entitled to enter judgment.
The Court directed that limitation be tried as a preliminary issue and the trial duly came on before Soole J. in the High Court on Wednesday 21st May 2025. The issues were fully argued and judgment reserved. On the same day the Supreme Court handed down its decision in BDW Trading. The judge invited the Claimant and the Defendant to make further written submissions on the effect of that decision. The Claimant then discontinued the claim without waiting further for judgment (in reality a decision forced on it as an inevitable consequence of the BDW Trading reasoning).
It is clear that, had a judgment being given, it would have been in favour of the Defendant. The BDW Trading decision establishes that time runs from the point when quantum is first ascertained, which coincides with the accrual of a Claimant’s cause of action for seeking contribution. The effect of the decision meant that the Home Office’s stance could not be maintained further.
This illustrates the law following BDW Trading very well. Once quantum is determined, even if only in part, time will start to run under section 10 of the Limitation Act 1980 for bringing a contribution claim. An insurer cannot then wait further if other aspects of quantum are left outstanding. In mesothelioma claims this means that, if the claim of a living Claimant is settled with future provision for payment for treatment, that fact will not stop the running of time for claiming contribution between insurers. It is important to note that it must be the damages themselves which are agreed – an order for an interim payment is insufficient to trigger the running of time – see Jellett v Brook [2017] 1 WLR 117. Furthermore time under section 10(4) runs from the point when quantum is ascertained, however fully that is achieved, and not from any later date when the court may make an order recording the agreement. Specifically, if a party accepts a Part 36 offer by way of settlement of the claim, time will run from the date of acceptance and not from the later date of any consent order which reflects the acceptance – see Chief Constable of Hampshire Constabulary v Southampton City Council [2014] EWCA Civ 1541.
The essential question to be asked is, at what point has an immediate and binding agreement for settlement been reached, even if some details as to payment terms, future treatment or costs are left for later agreement. Once an immediate and binding agreement has been reached, time will run and an insurer who wants to seek contribution elsewhere should be alive to the fact that they then have only two years in which to do so.
Philip Turton was instructed in the case by Peter Bennett of Dolmans Solicitors, Cardiff, on behalf of Claire Hobman of Catalina Re.
