Scarborough College v Winter: Spotlight on the Show Cause Procedure

In Scarborough College Ltd v Winter [2021] EWHC 1549 (QB), the High Court considered an appeal by a Defendant against the decision of a Master to enter judgment under CPR PD3D (the show cause procedure). The appeal was dismissed. Cavanagh J held that Judgment had been appropriately entered.

The Facts

The Claimant, now deceased, was a pupil at the Defendant’s school between September 1969 and July 1973, where he was a boarder at Hartford House. He alleged that he was exposed to asbestos when he and his fellow pupils were regularly hanging wet sports kit on pipes in the basement boiler room. It was his case that the lagging on the pipes was lined with asbestos, and that the lagging was damaged, such that he was exposed to dust swirling around the boiler room. He pleaded that there was accumulated dust on the pipes and on the floor area below the pipes. It was the Claimant’s case that when the wet clothes were removed from the pipes, dust was generated, and that he would have to shake asbestos dust from his clothes before putting them on, while other pupils around him did the same.

As a result of this exposure, the Claimant pleaded that he developed a malignant pleural mesothelioma in April 2019. The Claimant passed away in December 2020.

The Proceedings before the Master

The Claimant brought a claim against the Defendant school and the matter was listed for a “show cause” hearing under CPR PD3D para. 6. The Defendant accepted that the pipe lagging had likely contained asbestos.

At first instance, the issue before the Master was whether the Defendant should have foreseen a risk of injury to the Claimant and taken steps to reduce that risk.

The Claimant relied upon a memorandum (Administrative Memorandum 20/67) circulated by the Department of Education on 18 July 1967 warning of the risks of asbestos. The Claimant also relied upon a frontpage Sunday Times article from 1965 warning of the risks of asbestos. It was therefore argued that the risk was foreseeable.

Both parties relied upon preliminary expert evidence. The Claimant relied upon a report from a health and safety practitioner. The Defendant relied upon a letter from an occupational hygienist.

The Master held that the school had no real prospect of defending the case on liability. It was held that the school knew or should have known of the pupils’ use of the room and the risk of exposure to asbestos posed by the lagging. The Master held that there was a foreseeable risk of injury. Judgment was therefore entered for the Claimant.

Appeal to the High Court

On appeal, the Defendant argued that the Master had applied too high a standard. Whilst the school accepted that there was likely to be asbestos in the lagging, it argued that it was not foreseeable that the Claimant would suffer injury. It pointed to the fact that asbestos had been used until 1975 and that contemporary publications suggested that it did not pose a health risk. It was argued that the issue of foreseeability of risk was a matter that should be left for trial.

The Court held that the test on the show cause procedure was whether the Defendant had a prospect of success that was more than merely fanciful (Revenue and Customs Commissioners v Silcock [2009] EWHC 3025 (QB)). The test was described as a low bar.

On the issue of expert evidence, the show cause procedure was described as “rough and ready”, and that it was inevitable that the hearings would be conducted without full expert evidence (as in the present case, where the Court considered preliminary reports and letters from the health and safety expert and the occupational hygienist).

Cavanagh J applied the authorities in Williams v University of Birmingham [2012] PIQR P4 and Baker v Quantum Clothing Group Ltd [2011] 1 WLR 1003 when considering the issue of foreseeability of risk. In light of the Ministry of Education circular that the Master had considered, and the article from the Sunday Times, the judge held that the Master had been correct to find that the Defendant could not establish that the exposure to asbestos dust did not give rise to a reasonably foreseeable risk of injury. The appeal was therefore dismissed.

Practice Points

This judgment (a full copy of which is yet to be published) gives rise to a number of interesting practice points.

The High Court clearly emphasised that the show cause procedure was a “low bar” for Defendants, and that the Defendant had to merely show a prospect of success that was more than fanciful.

The commentary upon expert evidence is also of note. It has long been the practice (at least, in the authors’ experience) that preliminary evidence is used in show cause hearings, and the Court has endorsed this “rough and ready” practice.

Finally, for those with clients that are schools or colleges, the importance placed upon Administrative Memorandum 20/67 will give Defendants pause for thought in seeking to defend cases post-dating July 1967 where the issue is foreseeability of risk. The Court appears to have given the argument that such a risk was not foreseeable until 1975 rather short shrift.