Cape Disclosure Following Supreme Court Ruling in Cape v Dring [2019] UKSC 38 Exposes Date of Knowledge in Regards to the Injurious Potential of Asbestos

We last reported on the Supreme Court ruling in the case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, in edition 282 of BC Disease News (here).

After a string of appeals, Graham Dring, on behalf of the Asbestos Victims Support Groups Forum (AVSGF) UK as its (now former) Chair, was successful in seeking non-party access to ‘voluminous documentation’ that had been compiled during historic product liability (PL) proceedings against one of the UK’s largest asbestos manufacturers, Cape Intermediate Holdings. These PL proceedings were brought by multiple employers’ liability (EL) insurers wanting a financial contribution for having settled occupational disease claims alleging workplace exposure to asbestos.

Had Mr. Dring failed in his intervention to preserve court documents, it is an inevitable fact that paperwork would have been destroyed, in accordance with a confidential agreement struck between the parties in Concept 70 & Others v Cape International Holdings Ltd (2017), before Mr. Justice Picken.

The Guardian recently reported that the litigation documents, all of which can be accessed here, provide ‘extraordinary evidence’ that Cape was aware of the injury risk posed by the use and handling of carcinogenic Asbestos Insulation Board (AIB) – trade name Asbestolux – from the late 1950s. Further, that the company and its partnering organisations interfered with the UK Government’s regulation of asbestos in the 1960s and 70s by historically concealing and understating the dangers. This is likely why it staunchly resisted Mr. Dring’s application for disclosure, pursuant to CPR 5.4C, for over 3-years.

In summary, the documents reveal that:

  • Johns-Manville, an American partner company of Cape, was considering placing a warning label on asbestos-containing ‘Marinite’ sheets in 1958, but Cape advised that ‘a caution label on our products and none on [our competitors] would make our selling efforts most difficult’. As a result of increasing concern over the impact of communicating asbestos health risks on corporate profitability, the warning label idea was scrapped. Besides internal correspondence demonstrating a campaign to prevent other manufacturers from introducing warning labels on their AIB/Asbestolux products, it parades that Cape had lobbied the Government to ‘water down’ the suggested national approach to product warning labels too.
  • Cape’s in-house sampling data showed significantly higher dust counts than Technical Data Note 13 (TDN13) standards for accepted levels of exposure, even when just handling AIB/Asbestolux. However, it adopted a policy of suppressing unfavourable sampling data with bodies like the British Occupational Hygiene Society (BOHS), with whom it imparted evidence of low dust counts and withheld damning surveys. Contrary to its disparaging data on dust counts, Cape proceeded to mislead the Government and the public about the dangers of handling AIB/Asbestolux (and asbestos more generally) in communications.
  • From 1966, the Asbestos Research Council (ARC), with Cape being a founding member, compromised the Government’s regulatory response to asbestos by lobbying BOHS and emerging triumphant in downgrading the regulation from a proposed ‘no dust policy’ to a ‘maximum allowable concentration approach’. It then successfully lobbied to increase the proposed limits. Despite the process through which BOHS limits were set and the fact that they were allied with asbestosis, Cape commissioned a public relations (PR) team to overtly rebut the risk of cancer/mesothelioma.
  • When Cape eventually began to label its products in 1976 with a ‘take care with Asbestos’ warning, it made reference to the fact that ‘breathing asbestos dust can damage health’, but there was no mention of the risk of developing mesothelioma. At the same time, a booklet published by the Asbestos Information Committee (AIC), of which Cape was a founding member, reassured that ‘the normal use of asbestos products should not be a cause for anxiety’. However, the position in 1976 was in direct contradiction with the reality that years prior, in 1969, Cape’s Group Medical Adviser recorded his recognition that fatal mesothelioma could be caused by ‘short and possibly small’ exposure to asbestos and that ‘no type of asbestos proved innocent’. In the same year, a research review by the ARC also accepted the link between asbestos and mesothelioma, concluding that ‘elimination of the dust hazard is therefore the only answer’.
  • In spite of all of the above, Cape continued to manufacture AIB/Asbestolux in 1980, and did so whilst concurrently defending litigation on the basis that it had ceased manufacture in 1978.[i]

Reacting to revelations in the documentation, current AVSGF Chair, Joanne Gordon, remarked her disappointment that Cape had ostensibly engaged in a program of ‘deliberate deception’, ‘shamelessly causing deaths’ and ‘vehemently defending cases’. Accordingly, the Forum is demanding an official apology from the manufacturer, as well as a £10 million donation towards mesothelioma research.

Elsewhere, Leigh Day Partner (and legal representative for the AVSGF), Harminder Bains, expressed her ‘revulsion’ and ‘anger’ when scanning through the disclosed materials. Proof of Cape’s knowledge that there was a high risk of deadly disease, compounded by its scheme to deliberately refuse to divulge sensitive information and to petition the Government to have influence over the regulation of asbestos amounted to a ‘cover-up’, which she compared to the tobacco industry’s historic refusal to admit evidence of harm caused by smoking cigarettes.

Meanwhile, Cape’s response was articulated by a spokesperson, as follows:

‘Cape was taken over in 2017 and its current management cannot comment on this matter, based on historical events that occurred over 40 years ago. However, Cape remains fully committed to the scheme of arrangement that was put in place and approved by a UK court to provide compensation payouts and will continue to meet all its obligations associated with that scheme’.

 

[i] ‘Asbestos Victims Support Groups Forum UK’s landmark battle for historical documents reveal that Cape knew of the dangers of Asbestos Insulation Board/Asbestolux’ (10 March 2022 Leigh Day) <https://www.leighday.co.uk/latest-updates/news/2022-news/asbestos-victims-support-groups-forum-uks-landmark-battle-for-historical-documents-reveal-that-cape-knew-of-the-dangers-of-asbestos-insulation-boardasbestolux/> accessed 25 March 2022.

Haroon Siddique, ‘UK asbestos maker withheld information on material’s risks, court papers show’ (20 March 2022 The Guardian) <https://www.theguardian.com/uk-news/2022/mar/20/uk-asbestos-maker-withheld-information-on-material-risks-court-papers-show> accessed 22 March 2022.