The Asbestos Victims Support Group Forum have this month been successful in preventing documents relating to Cape Group’s knowledge of the risks of asbestos and mesothelioma from being destroyed. The application for disclosure of these documents will be heard in October 2017.
The documents relate to the underlying litigation for which there were two sets of claims, tried together. These have become widely known as the Product Liability (PL) claims and the CDL claims, so called because they were claims brought by Aviva on behalf of its insured customer Cape Distribution Limited.
In the PL claims a consortium of insurers brought subrogated claims seeking contributions from Cape Intermediate Holdings PLC arising from insurance policies which the PL claimants had written regarding employee liability insurance for various clients, mainly building companies. The insured employers were sued or received notices of claims from former employees in respect of mesothelioma contracted by them due to occupational asbestos exposure. The claims were settled by the insurers and that gave rise to the subrogated PL claims by which the insurers sought contributions from the Defendants. The basis for the PL claims was that the claimants alleged that the employees in question had been exposed to dust from ‘Asbestolux’ and ‘Marinite’ boards manufactured and supplied by members of the Cape group of companies, and that Cape and/or its subsidiaries had failed adequately to warn of the risks of occupational asbestos exposure at the time.
We reported in edition 177 of BC Disease News that Cape had entered into settlement agreement with the insurers before judgment could be handed down. This can be accessed here.
It was the documents that were disclosed between the parties in the lead up to this trial that The Forum wish to have access to. The documents include, inter-company indemnities, insurance arrangements, marketing materials relating to the products in question, historic technical information about the materials and codes of practice. This principally concerned the period from 1948 to 1982.
These documents are of interest to lawyers and members of the public interested in asbestos safety and asbestos-related disease and, it is argued by The Forum, illuminate what Cape really knew about the risks of asbestos and mesothelioma. Indeed, Counsel for one of the insurers is reported to have said that the documents were ‘the single most important weapon against TDN13’.[i]
The applicant was successful in preventing these documents from being destroyed and removed from the Court in an urgent ex parte application in April 2017 and Master McCloud, at that time, made an order for the application to come before the court by way of a hearing, for further consideration.
At this hearing, earlier this month, the matter of The Forum having access to these documents was discussed. As interested parties Cape was given notice of this application and informed the court they wished to make submissions against the application of The Forum. Master McCloud agreed that they should be allowed to address the court.
As such the substantive hearing was listed for October 2017.
Master McCloud made no order as to costs as the application was made in the public interest.
The full judgment can be accessed here. We will continue to report on any developments in future editions of BC Disease News.
[i] Leigh Day, ‘Significant Judgment For Asbestos Victims Support Group Forum’ (Leigh Day 11 August 2017)< https://www.leighday.co.uk/News/News-2017/August-2017/Significant-judgment-for-Asbestos-Victims-Support> accessed 17 August 2017.