Belated Addition of Industrial Disease Claims to a GLO: Hutson & Anor, The Personal Representatives of v Tata Steel UK Ltd [2019] EWHC 143 (QB)

Previously, in edition 218 of BC Disease News (here), we alerted readers that the cut-off date for living claimants bringing industrial disease claims in the British Steel Group Litigation was fast approaching.

The initial application the Group Litigation Order (GLO) was approved at the High Court, in 2017, by Mr Justice Turner. The GLO encompasses all manner of diseases associated with inhalation of carcinogenic coke oven emissions, such as:

  • Chronic Obstructive Pulmonary Disease;
  • Bladder Cancer;
  • Chronic Bronchitis;
  • Temporary Exacerbation of Asthma;
  • Lung Cancer; and
  • Squamous Cell Skin Cancer.

This week, Turner J indulged a further 20 industrial disease claims into the GLO, brought on behalf of deceased workers, which were unregistered when GLO registration had closed.

Under a Court Order (Order No. 3), the cut-off date for registering claims on behalf of the employees’ estates was 21 September 2018. This date was extended, by consent, in respect of certain identified potential claims (under Order No.9) to 16 November 2018, with liberty to apply for a further extension.

Ultimately, by 16 November 2018, various claims had not yet been entered on the register, as the requisite formalities (grants of probate or letters of administration) had not been satisfied.

As a result, applications sought further extensions to allow the unregistered claims to proceed.

The 1st application was made in respect of 12 claims that were incorporated by 21 September 2018, but failed to satisfy the requisite formalities by 16 November 2018.

The 2nd application was made in respect of 8 unregistered claims, which had not been identified as qualifying for the 16 November 2018 extension.

The 1st Application

In deciding whether to grant the 1st application, the High Court judge took note of the default legal position in Pearce v Secretary of State for Energy and Climate Change & Ors [2015] EWHC 3775:

‘By way of preliminary observation I say that cut off dates are essential in GLOs to secure the good case management of the claims falling within its scope. The parties depend upon some level of certainty as to the cut-off date in order to decide how to deploy their resources and when. Accordingly extensions of the cut-off date should not come to be regarded as the norm.

The defendant submitted that it would suffer prejudice if the application were to succeed, asserting that a lack of certainty over the valuation of unregistered claims had hampered its ability to calculate accurate reserves. Further, the defendant had not been able to evaluate the extent of expanded disclosure and had not been able to consider whether any belatedly registered cases should be selected as lead cases.

By contrast, the claimant argued that 12 claims falling within the scope of the 1st application was modest in comparison to the 222 claims already registered. Thus, there had been ‘little or no impact on the progress of the defendant's solicitors' work on the case as a whole’. The claimant further disagreed with the defendant that its reserves calculation would be significantly affected, as none of the claims were high value lung cancer claims. What is more, ‘disclosure obligations would not be significantly broadened’, as alleged exposure in these claims had taken place in premises already covered by registered claims. The overriding objective was also emphasised by the claimant, fearing the loss of meritorious claims and the preclusion of access to any remedy.

In his judgment, Turner J found that, even though ‘most if not all of these cases could have been avoided and the extended deadline could have been complied with’, he was ‘entirely satisfied that the correct approach [was] to permit them to proceed’ and extended the time for registration.

The most important factors were:

  • No jeopardised GLO timetable;
  • No discernible saving of expense; and
  • Prejudice to the defendant did not outweigh the risk of individual claims losing ‘their prospect of achieving substantive justice’.

The 2nd Application

In respect of the 2nd application, the defendant conceded that 5 of the 8 unregistered claims should be ‘indulged’ the relevant time extension, as the formalities were completed before the original cut-off date.

For the remaining 3 cases, it was argued that any claim purportedly commenced by a deceased party is a nullity which is incapable of subsequent rectification (see Kimathi v Foreign and Commonwealth Office (No 2) [2016] EWHC 3005).

However, the claimant successfully bypassed this notion, on the foundation that the existence of a nullity claim does not preclude the commencement of fresh proceedings, which are not a nullity.

Was the judge entitled to exercise his discretion? The defendant argued that the 3-stage test for relief from sanctions, established in the case of Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906, should be exercised – Turner J agreed.

Although each of the 3 claims evidenced ‘serious and significant’ defaults, which were caused by ‘culpable oversight’, the judge was satisfied that the individual claimants’ breaches had not ‘prevented to any significant degree the court or the parties from conducting these claims or the litigation as a whole efficiently and at proportionate cost’.

Accordingly, further time was granted for the residual 3 claims to be registered on the GLO register.

Full text judgment can be accessed here.