Showing Cause: Getting What You Want in the Asbestos List

Practice Direction 3D provides for an expedited system of civil procedure to be applied to claims for damages for mesothelioma. In practice it is now applied by the High Court Masters to all asbestos claims. One of its significant innovations is the “Show Cause” procedure. In this article, Philip Turton examines the rules which apply in such claims and considers how to achieve best results before the Masters.

Introduction 

The origin of a system of accelerated hearings applied to victims of mesothelioma is said by some to have originated in the Manchester District Registry in the late 1990’s, but from personal experience, Judges in the High Court in Leeds were giving expedited directions for trials in such cases as long ago as 1990. The procedure, then, was driven by sympathy for the victim, was rudimentary and varied from Judge to Judge but enabled parties to seek an early trial date on liability in relation to Claimants still alive but with limited life expectancy.

The incidence of mesothelioma in Britain is an epidemic, leading to a death rate which has steadily risen and which, only now, may be reaching a peak. In 2004, a paper in the British Medical Journal estimated a death rate of 2,000 people per annum in the UK by 2020, and that prediction seems to have been fulfilled. Between 1968 and 2016, 67,000 people are estimated to have died from mesothelioma in the UK.  Even if peak mortality has been reached, the fall back will take a long time to be realised. Since mesothelioma deaths arise from asbestos exposure, the bulk of which are culpable, the processing of mesothelioma and other asbestos claims will keep the High Court busy for a substantial time to come.

The Asbestos List  

By May 2002, the position was such that a specialist “Mesothelioma List” was set up under the auspices of Senior Master Whitaker at the Royal Courts of Justice. The Senior Master, joined, in due course, by a small number of additional specialist Masters, processed mesothelioma and other asbestos claims, acquiring expertise and adopting a unique procedure to move the claims forward expeditiously. The success of the list quickly caused most Claimants’ solicitors to issue asbestos claims in London in order to bring themselves within the procedures which were being applied. Whilst some other Courts (Leeds; Manchester) sought to follow suit, the impetus lay with the Royal Courts of Justice. In 2007 the Civil Justice Council adopted the procedure used at the Royal Courts of Justice to formulate Practice Direction 3D – Mesothelioma Claims, which came into force on 6th April 2008. That Practice Direction now contains the procedure by which all asbestos claims are processed. The expertise and experience of the Masters in the Royal Courts of Justice has meant that it has remained the venue of choice for Claimants’ solicitors issuing asbestos claims.

The reference on the face of the Practice Direction to “Mesothelioma Claims” is misleading.  It applies to all asbestos claims – see the judgment of Master McCloud in Yates v Commissioners of HMRC [2014] PIQR P24 at [3]: 

“My preferred term is “asbestos diseases court”, because the procedure is not limited to mesothelioma (as “mesothelioma list” might imply), and the nature of our unique procedural use of the CPR makes it more than merely “a list”, albeit that was its origin some years ago.”

Attempts to distinguish non-mesothelioma claims from the requirements of the Practice Direction receive short shrift from the existing Masters.  The list does not however extend beyond asbestos claims and the Masters will not entertain claims for other lung diseases.

The current Queen’s Bench Masters conducting the Asbestos List are Master Eastman, Master Fontaine, Master Davison, Master Gidden and Master Thornett. On occasion they may be assisted by Deputy Masters of the Queen’s Bench Division, but this is rare.

Of the five Masters, Master Eastman tends to take the lead.  It is unusual to find a hearing is listed before Master Fontaine.  Masters Davison, Gidden and Thornett deal with a significant number of hearings.  The Masters are assisted by the staff of the Asbestos List and may be contacted directly by email: [email protected].  There is some variation in the approach of the individual Masters.

The rationale behind the existence of the Practice Direction and its requirements is important in understanding the approach to be taken, which is unique to asbestos cases. Before 2002, in cases where the burden of proof rested squarely on the Claimant, the progress of cases, often in relation to a Claimant facing a terminal disease could be slow where a Defendant who, in reality, had very little by way of a defence, was nonetheless able to delay the proceedings by its denial of liability. Given the well-founded perception that there were very few cases where the Defendant could actually maintain a defence, it was concluded that the consequence of the delay was injustice to a dying victim. As Master McCloud put it in Yates: 

“The underlying approach to asbestos claims places the doing of justice, at speed and with improved efficiency, at the forefront; formalities of procedure take second place if they interfere with that”.

The history of the Asbestos List is set out in some detail in Yates, which is a useful case to read.

Practice Direction 3D

Central to the procedure now adopted by the Practice Direction is the “Show Cause Procedure” which, uniquely, places the emphasis on the Defendant to satisfy the Court that it can raise a defence, so reversing the burden of proof at the outset in order to focus on the merit of the Defendant’s stance (always provided the Claimant is able to raise a prima facie case on paper).  

When issuing a claim, the Claim Form and Statement of Case must be marked either “Living Mesothelioma Claim” or “Fatal Mesothelioma Claim” – see CPR 3DPD.3.1. As a matter of practice, Claimants also mark their pleadings with different asbestos diseases where the claim is not for mesothelioma. In order to trigger the Show Cause procedure, the Claimant must file and serve witness statements about liability at the same time as serving the Claim Form or otherwise as soon as possible thereafter (and in any event not less than seven days before the first Case Management Conference). The Witness Statement must identify the victim’s employment history and history of exposure to asbestos with all employers, as well as self-employment, give the identity of alleged exposing employers, provide details of claims made under the Pneumoconiosis etc (Workers Compensation) Act 1979 and attach both the Inland Revenue Schedule obtained from Her Majesty’s Revenue and Customs and any pre-action Letter of Claim.  

In urgent cases the Claimant does not have to wait for a Defence before requesting a Case Management Conference – see 3DPD.4.1. Where no request is made for an urgent Case Management Conference, the Court fixes one on the filing of a Defence by any Defendant. The Court will not wait until all Defendants have filed their Defences before doing so.

The Practice Direction imposes timescales. In living mesothelioma claims, CPR 3DPD.7.1 provides that the date of assessment of damages or trial will generally not be more than 16 weeks later than service of the Claim Form. Fatal mesothelioma claims may take longer, reflecting the urgency the Court attaches to cases where there is a living Claimant.

The resolution of a case during a Claimant’s lifetime will generally lead to a smaller award of damages than one which is resolved after death. A living Claimant is restricted to claiming for earnings during the “lost years”, discounted conventionally by 50%. The calculation of a dependency claim will normally exceed any amount awarded in relation to “lost years”. There is advantage to both sides in processing living cases quickly to a conclusion.

The result is that the Court will make what Master McCloud described as “assertive use of our case management power” to process the claim quickly, so far as reasonably and fairly possible. The Masters will invariably look to the life expectancy of the Claimant at the first Case Management Conference to consider the nature of the directions to be given. The budgeting of asbestos cases is usually dispensed with to avoid delay and procedural formality is generally waived in favour of the use of technology and the provision of direct access to the Masters who adopt a “no nonsense” approach, utilising email, telephone hearings and an open door policy to assist. In practice it has become one of the most efficient courts in the country, where parties can usually expect and get a full and fair consideration of the issues which arise in their cases, without resort to procedural formality or sanction.

Orders and hearings may be requested informally by solicitors, a practice which, on occasion, can be abused, and which ought not to overtake the obligation to meet evidential and legal requirements for any application, even if a Part 23 Application Notice is not insisted upon.

Parties are encouraged to mention claims or seek decisions in writing and Costs Orders will normally be made “in the case”. It is very rare for points to be taken, still less accepted, in relation to time limits, a system which works because of the quality of representation, the specialist knowledge of the Masters themselves and their ability to identify the issues quickly in seeking to resolve cases.

Claims thus come before the Court for case management relatively quickly, particularly so in living cases which are given priority (3DPD.5.2).

The show cause procedure is defined in 3DPD.6.1: 

“… a requirement by the Court, of its own initiative and usually on a “costs in the case” basis, for the Defendant to identify the evidence and legal arguments that give the Defendant a real prospect of success on any or all issues of liability. The Court will use this procedure for the resolution of mesothelioma claims”. 

As above, the Court, in fact, uses the procedure to resolve all asbestos claims.

A first Case Management Conference is normally listed for 30 minutes. CPR 3DPD.6 provides that, at the first Case Management Conference, unless there is good reason, the Defendant should be prepared to show cause why judgment should not be entered and an order for interim payment of damages and costs made.  

At the first Case Management Conference the Court is looking to see whether a Defendant will concede liability. Time constraints mean that it is difficult to do justice to full argument on Show Cause issues at this hearing. A Defendant should not be lulled into believing however that the Court will not enter judgment at this stage if it considers it appropriate to do so. It is necessary to adduce coherent reasons why the Defendant considers it is able to defend the claim at this stage, which may take different forms:

(i) substantive suggestions that the Claimant’s evidence is unreliable;

(ii) an indication that witnesses of fact are available or, better still, the production of witness statements; or

(iii) expert evidence suggesting a line of defence

are all possibilities (see further below). What will not generally be accepted is an attack on the Claimant’s evidence without direct material to support it. On numerous occasions the Masters have indicated that, provided they have a coherent statement from the Claimant, establishing the fact of asbestos exposure with the Defendant, they will not be prepared to reject such an account in the absence of directly contradictory testimony from other witnesses. Although clearly the issue is fact sensitive, that a Defendant may have put in place policies from which it may be inferred a Claimant is mistaken does not often find favour or cause a Master to reject the Claimant’s evidence.

If liability remains in issue at the first Case Management Conference, the Court will normally order that the Defendant show cause within a further given period (see CPR 3DPD.6, 6.3).

It is here that the issues come into focus. The approach to the hearing needs to be carefully tailored by each side. This can relate to the principal claim brought by the Claimant but may also address issues between Defendants. The effect of Sections 16 and 17 of the Compensation Act 2006 ensure that if a Claimant can obtain judgment against any one Defendant, that Defendant will be liable to satisfy it in full, leaving it to pursue contribution from others. The pursuit of contribution from Co-Defendants is generally less straightforward than bringing a claim in the first place, not least because the paying Defendant will not have direct access to the Claimant himself. 

Advocacy at the Show Cause Hearing

The Court applies the test for summary judgment in relation to Showing Cause but it is the Defendant who must identify the evidence and legal argument that give it a real prospect of success. In the first instance the Claimant must adduce credible evidence in support of his case. Only if the Claimant overcomes this hurdle does the burden shift to the Defendant to show that judgment on liability should not be entered against it – see Silcock v HM Revenue and Customs [2009] EWHC 3025 (QB). The Court adopts this approach, relying upon historic experience showing that in many asbestos claims there is no defence, so that the requirement to apply for summary judgment would unnecessarily duplicate work and increase costs.

Of course, in approaching the question of whether the Defendant has a real prospect of succeeding on issues of liability, the legal principles which attach to asbestos claims will fall to be considered, of which further below. But the abiding test is whether there is a prospect which is more than fanciful that the Defendant may be able to resist judgment – see Swain v Hillman [2001] 1 All ER 91; ED & F Mann Liquid Products v Patel [2003] EWCA Civ 472. The application is not a mini-trial and the Court takes into account the summary nature of the procedure. If there is evidence which requires resolution, it is appropriate to give Directions to trial. Whilst on a summary judgment application the Court may take account of evidence that might reasonably be expected to be available at trial, in addition to the evidence before it – see Royal Brompton Hospital NHS Trust v Hammond (No. 5) [2001] EWCA Civ 550. There is a presumption in the Asbestos List that the parties will adduce all relevant evidence (and in appropriate circumstances the Court may allow them more time to do so).

An Order requiring a Defendant to Show Cause within a further period will generally direct that the Defendant file and serve the evidence upon which it proposes to rely, together with a Skeleton Argument setting out its submissions. In default of service judgment will be entered.

This is a forum where the quality of written advocacy is of the utmost importance. The quality and experience of the Queen’s Bench Masters means that they are readily able to determine issues on the basis of the papers before them, given their understanding of asbestos cases. It is not usually necessary to go into the principles of the leading cases, which are well known. The Masters, almost invariably, have read the Skeleton Submissions of both sides in advance. Often this guides their thinking and determines their approach to the hearing before it starts. It is not uncommon for oral submissions to be cut short or, where the Master trusts the advocates, for a clear indication to be given at the outset (and sometimes accepted).

It follows that great care should be taken over the settling of a Skeleton Argument, which is sometimes capable of determining the entire issue in the Defendant’s favour.

On the Defendant’s side, possible lines of attack which can present themselves might be categorised as follows:

(i) attacking the credibility of the Claimant, with a view to showing that the first hurdle in Silcock is not surmounted; 

(ii) persuading the Court that Evidence on Commission is necessary before the issue of liability can be determined;

(iii) adducing evidence which contradicts the Claimant and raises a triable issue; or

(iv) adducing expert evidence going to the issue of liability in such a way as to persuade the Court that a triable issue will arise at trial.

The Legal Issues

The legal principles to be applied in relation to issues of liability are well known (and not the subject of this paper) but can be drawn from the various Regulations which impose duties in the specific circumstances to which they apply, as well as the Factories Acts of 1937 and 1961 in addition to the conventional common law duties owed by an employer to his employee.

Of particular interest are section 63 of the 1961 Factories Act (or its predecessor section 47), McDonald v National Grid Electricity Transmission plc [2015] AC 1128 and Bussey v Anglia Heating Ltd [2018] ICR 1242. The issues arising from these sources may be categorised as follows:

(i) the strict liability nature of the duty imposed in relation to general dust under section 63, as interpreted by McDonald; and 

(ii) the change in approach in relation to low level exposure brought about by Bussey.

Of course, all cases turn on their own facts. Particular aspects will include (the list is not exhaustive):

(i) whether exposure occurred before the 1965 watershed for knowledge of mesothelioma risks;

(ii) the nature of the dust exposure complained of and, particularly, whether it was heavy in nature;

(iii) whether or not the exposure occurred in that period after 1965 but before the publication of EH10 “Environmental Hygiene 10: Asbestos Hygiene Standards of Measurements of Airborne Dust Concentrations” in 1976, which replaced its predecessor TDN13 “Technical Data Note 13: Standards for Asbestos Dust Concentrations for use with the Asbestos Regulations 1969”, and recommended for the first time that exposure to all forms of asbestos dust should be reduced to “the minimum level reasonably practicable”;

(iv) whether the Defendant was an employer of the Claimant;

(v) whether the Defendant was the occupier of a factory; and

(vi) whether any direct evidence from the Defendant is available at all, to cast light on the Claimant’s allegations (it usually isn’t).

These considerations affect the duties which arise. In particular:

(i) an employer of workmen after 1965 will be taken to know that exposure to low quantities of asbestos dust carried a risk of fatal injury;

(ii) by contrast, an employer prior to 1965 is likely only to be liable at common law if exposure is at a level which gave rise to a foreseeable risk of asbestosis (and which could thus be regarded as “heavy”);

(iii) an employer between 1965 and 1976 might seek to rely, in low exposure cases, upon the 1970 guidance in TDN13 as to levels of exposure below which HM Factory Inspectorate indicated they would not prosecute;

(iv) by contrast, after 1976, whilst levels of exposure remain relevant, the recommendation that dust exposure be reduced as far as reasonably practicable presents a greater hurdle for a Defendant to overcome;

(v) for some specific industries, knowledge of risk may be further delayed, depending upon relevant published guidance;

(vi) a factory occupier may be subject to the strict liability provisions of section 63 if exposure to dust can be considered substantial, even in the absence of knowledge of risk arising from asbestos dust; and

(vii) an employer after, at latest, 1982 is likely to face the utmost difficulty in raising a defence if a Claimant is able to show credible exposure to asbestos dust in the course of employment.

The effect of McDonald is to confirm that the second limb of section 63 of the Factories Act 1961 (and also of section 47 of the 1937 Act) imposes strict liability where a factory process generates “substantial dust of any kind” if it was possible to protect against it. Whether or not the dust is substantial is to be measured at the point of production and not at the point of inhalation. Thus, if dust of any sort containing asbestos is generated in a quantity the Court considers substantial, breach will be established even if the Claimant is removed from it.  The Claimant then has only to prove causation.

The effect of Bussey is particularly relevant where exposure to asbestos in the period from 1965 to 1976 was arguably at levels below those identified in TDN13. The Court of Appeal in Bussey made it clear that it may not be enough for a Defendant to show simply that levels of exposure were low. Given the risk associated with asbestos, a Defendant must still show what it did about the dust and what consideration it gave to protective measures.  

It should be recalled, nonetheless, that Bussey did not overturn Williams v University of Birmingham [2011] EWCA Civ 1242, on its facts a case of low exposure in the early 1970s where, over a short period in his final year, Mr Williams had performed experiments in a wind tunnel lagged with asbestos fibre but giving rise to extremely low levels of airborne dust. Low exposure can still raise a triable issue where the circumstances are right. 

Evidence on Commission

The Practice Direction places an emphasis upon taking evidence by deposition. By 3DPD.8:

“Any party who for good reason wishes evidence to be taken by deposition may apply to the Court at any time for such an Order”.

Nonetheless the expectation is that a request for evidence by deposition is made at the Case Management Conference. A Direction for the recording of such evidence on DVD and the provision of a transcript will be included in the Order.

The outbreak of COVID-19 has not interfered with the Court’s willingness to direct that evidence be taken on deposition, using remote technology such as Skype.  The only obstacle would seem to be whether or not a Claimant has reasonable access to a computer or electronic device.  Provided that can be achieved, the Masters are currently ordering evidence on commission to take place where there is good reason.

The notes to 3DPD.8 explain the emphasis further:

“At the first CMC where the alleged victim is still alive, the Court should always consider making an Order that the Claimant’s evidence should be taken on deposition by a certain date or that the Claimant’s solicitors have permission to have it taken on short notice if the Claimant’s health deteriorates. The importance of a live victim’s primary source of evidence cannot be over-stressed, particularly in cases where the Defendant is likely to be able to put forward its own live witnesses at a trial. The live victim is also a valuable source of information for the Defendant for them to assess their chances of success on liability and to be able to take an early decision thereon. Many disputes on liability are conceded after evidence is taken on deposition. If there is any likelihood that the Claimant might be lost as a source of evidence then that Claimant’s evidence should be taken as soon as possible so that the Defendant can also cross-examine as to its case”.

If a Defendant, for any reason, challenges the Claimant’s version of his exposure or suggests that it is unreliable, or if there is any reason to consider that useful further information may emerge from questioning the Claimant, the logical stance is to apply at the first CMC to take the Claimant’s evidence on deposition. This should probably be the default in most cases. A Defendant has to show good reason why the evidence is required nonetheless. The Court is unlikely to allow a “fishing expedition” to take place where the procedure will be draining for a terminally ill Claimant and may take place in his home. The state of the Claimant’s health will be a relevant factor. 

This is an area where the technology may assist in the future. The use of video-based platforms which have emerged during COVID-19 may be deployed in future to take evidence on commission on a less intrusive basis and parties should be astute to investigate what platforms are best for that purpose.

The Claimant’s Evidence

As above, the Court will take the Claimant’s evidence to be truthful and correct in the absence of any good reason to doubt it. The fact that a Defendant may have instigated a policy directed at asbestos control is insufficient, generally, to undermine the Claimant’s evidence if there is nothing more.

Where credible and directly contradictory testimony is available to the Defendant’s side, judgment cannot be entered and a trial must be ordered.  If appropriate a trial of liability or of breach of duty, as a preliminary issue, might be ordered to try and secure an outcome on those issues during the Claimant’s lifetime. Such cases exist but they are rare.

Claimants often give inconsistent accounts when initially diagnosed, which then appear in their medical records. Sight of these, and of DWP Records, is essential for this reason. It is not particularly unusual for a medical record to indicate that, when a Claimant was first asked about asbestos exposure, he was unable to identify when it occurred. Only later, on further thought, does he recall exposure, which can give rise to questions as to the accuracy of his recall. Experience suggests that this alone will be insufficient to undermine a Claimant’s testimony in a Witness Statement, if the initial medical consultation occurs at a time when the Claimant has still to mentally process the terminal diagnosis. A Defendant’s position may be stronger if an application under the Pneumoconiosis (Workers Compensation) Act 1979 also fails to identify exposure with the Defendant, if others are identified and the Claimant, by then, has the advantage of time for thought or legal advice. Issues in relation to credibility are inevitably fact-sensitive.

Expert Evidence 

The efficacy of obtaining expert evidence from an occupational hygienist, commenting upon the Claimant’s case varies. Nonetheless, in the absence of anything else, it may well be necessary if a Defendant is going to show that it has a prospect of raising a defence.

How such evidence may be deployed will vary depending upon the factual circumstances, some examples of which are given above.  It is impossible to review all of the possibilities in an article as limited as this one.

It is reasonable for an engineer or occupational hygienist to undertake the following:

(i) an appraisal of the Claimant’s evidence, to see whether it is logically consistent when considered against other matters within the expert’s knowledge;

(ii) for instance, an account of exposure might be contrasted with the policy of the employer or occupier, if available, to see if they are inconsistent – if other aspects of the Claimant’s testimony also appear unreliable that should support a submission that the Claimant’s evidence be taken on commission as a matter of urgency;

(iii) an assessment of the Claimant’s asbestos dose, based upon the various factual scenarios at the hands of the Defendant or over his lifetime;

(iv) in an asbestosis case, such an assessment would be directed towards whether the Helsinki Criteria are met;

(v) in a mesothelioma claim such evidence may be directed towards whether contemporaneous guidance in, for instance, TDN13, has been exceeded or not;

(vi) an assessment of the level of exposure in order to consider whether or not, by contemporaneous standards, a foreseeable risk of injury should have been known at the time; and

(vii) comparison with specific guidance then available from sources specifically relevant to the Defendant’s industry. 

Silcock makes it clear that, if a Defendant sets out to attack the credibility of the Claimant’s testimony unsuccessfully, judgment should be entered if there is not then evidence available to establish a defence. The obligation thus rests squarely on the Defendant to obtain and place before the Master evidence to show that a plausible triable issue arises. 

Multiple Defendants 

Issues do not just touch the conflict between Claimant and Defendant. At least as important may be the position as between different Defendants.  Advocacy directed towards shoring up a Defendant’s position may be more important for the contrast it creates with the weakness of another Defendant’s position.  

The position may thus shift as between Defendants (and, in some circumstances, as to the insurers, if there is more than one for a Defendant, if one insurer is not on risk for a period of non-exposure during the currency of the policy).  

Medical Causation

Many cases of mesothelioma are well confirmed, by histopathological testing or, in fatal cases, by post-mortem. In some however diagnosis may be uncertain. Causation frequently arises as an issue in relation to asbestosis or pleural thickening where a Claimant may suffer from idiopathic conditions, or there may be a differential diagnosis which is in play. In all those circumstances the Defendant may wish to obtain a preliminary view in writing from a medical expert but ought to be entitled to an Order giving permission to obtain its own medical evidence. 

The Court, then, can still enter judgment on breach of duty (see CPR 3DPD.6, 6.6) but the existence of an issue in relation to causation should prevent overall judgment being entered (unless it is obvious that there is some attributable asbestos disease which would sound in damages).

The correct order then would be to direct that the parties have permission for medical experts and that there be a trial on causation and quantum issues (or just causation issues if that can be achieved quickly).  

Good Reason

The Court is entitled to defer the Show Cause Hearing where there is good reason to do so. This is limited to an acceptable reason to allow time to investigate or to obtain evidence.  

Whether or not good reason exists may depend upon the amount of time a Defendant has had to investigate the claim. A Claimant will point to the length of time which has passed since the Letter of Claim in suggesting that matters should have been investigated.  

A Defendant who does nothing before the Show Cause Hearing, even by way of instructing an expert or seeking to trace witnesses, runs a risk.  While Defendants can encounter difficulty in locating insurers, and there is nothing unacceptable in trying to trace insurers who can respond to the claim, the Court is unlikely to indulge that at the expense of urgent investigation of liability issues.

Under the Practice Direction, the Court should determine a living mesothelioma claim within 16 weeks of service of the Claim Form, although this deadline can be breached because of difficulty in obtaining expert engineering evidence. There is an established waiting time for some engineers in this specialised area, which can run to several months or, in some cases, a year.