The ‘Show Cause’ Threshold for Mesothelioma Claims Under PD 3D: Helm v William Kenyon & Sons Ltd and Somewatch Ltd [2019] EWHC 1108 (QB)

Practice Direction 3D applies to claims for compensation for mesothelioma. It ‘is aimed toward dispatching those cases in which there are no reasonable prospects of maintaining a defence at an early stage in order to avoid the time and increased costs of applications’ for summary judgment.

What does ‘reasonable prospects’ mean, however? This was the issue which fell before the High Court, in Helm v William Kenyon & Sons Ltd and Somewatch Ltd [2019] EWHC 1108 (QB).

The claimant (deceased mid-way through proceedings), in this case, was diagnosed with mesothelioma and commenced a ‘living mesothelioma’ claim, pursuant to PD 3D para 3.1.

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It was alleged that he had been exposed to asbestos, potentially in the course of employment with 2 former employers [D1 (1965-71) and D2 (1973-79)].

The claimant filed witness evidence that was ‘sufficient’ to shift the burden to the defendants which had to ‘persuade the court that it was not appropriate for judgment to be given’.

The case was listed before Master Davison, the allocated Asbestos Master, and the ‘show cause’ procedure (PD 3D para 6.1) was followed.

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Essentially, this procedure requires the defendant to ‘show cause’, at the 1st case management conference (CMC), that ‘judgment should not be entered’ against it [see PD 3D para 6.2(1)].

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The CMC was conducted by way telephone hearing, with the Master ultimately finding that both D1 and D2 had failed to discharge the evidential burden of proving that that they had ‘reasonable’ prospects of defending the claim on ‘any or all issues of liability’, i.e. prospects of success that were ‘more than merely fanciful’.

Accordingly, judgment on liability was entered against both defendants.

D2 challenged the Master’s finding on appeal, which was heard before Mr Justice Turner, on 20 March 2019.

The High Court judge allowed the appeal and this was principally determined on findings of fact.

Although the claimant had ‘almost certainly’ developed mesothelioma as a result of occupational exposure, the Master had made an ‘assumption’, based on his reading of the claimant’s 2017-drafted witness statement, that exposure to ‘substantial quantities’ of asbestos-containing Caposite was ‘incontrovertibly an exposure which occurred during the time that the claimant was employed by the second defendant’.

Turner J considered this to be an ‘evident mistake’:

‘... it is not, from the timing, evident ... that he was working with Caposite from 1973 onwards when it was the responsibility of the appellant employers’.

What is more, Turner J considered that the claimant’s earlier witness statement, drafted in 1990, was ‘ambiguous’ in identifying the date that respiratory protective equipment was first issued by the appellant:

‘... it would be arguable on the part of the defendant that their own documentary records might be taken in these circumstances as a more helpful guide to the court as to the sequence of events in terms of providing respiratory protective equipment than the claimant’s own memory’.

Despite the fact that the decision on appeal was fact-specific, the judge’s ex tempore ruling gave notable guidance on PD 3D application and the intentions behind the ‘show cause’ process.

He identified that it was an ‘established fact’ that ‘mesothelioma, by and large, is overwhelmingly (not exclusively) caused by exposure to asbestos’.

Therefore, in single defendant, single employment claims, judges can ‘work backwards’ from the ‘established fact’ to evince, ‘with relative confidence’, that ‘there was exposure and ... in those circumstances, that the claimant will establish liability’.

However, in multi-defendant claims, such as the present case, the judge could not be confident that there was exposure during the course of the employment of both defendants’. Thus, it was not ‘very likely’ that the claimant would establish liability in relation to both defendants.

That being said, the fact that the claimant might not win at trial was not the correct standard to be applied at the ‘show cause’ hearing.

In fact, Turner J confirmed that:

‘The test [of whether success is more than merely ‘fanciful’] is ... not the highest of thresholds’.

It is possible that ‘show cause’ judges are influenced by statistics on justice achieved through PD 3D. According to Turner J, identification of defendants with ‘no real prospects of success’ stand at 95%.

From a ‘glass half full’ perspective, the procedure appears to be effective.

By contrast, from a ‘glass half empty’ perspective, a 95% success rate means that there is at least a 1 in 20 chance that defendants with a ‘sufficiently strongly arguable case’ will ‘escape the net’.

The High Court ruling in Helm clarifies that the ‘show cause’ process, in respect of mesothelioma claims, is not as onerous for defendants to surpass as some judges may imply. If a defendant can adduce supportive evidence, sufficient weight must be given to it when ‘prospects of success’ are assessed, even if there is unequivocal evidence of asbestos exposure. The risk that justice may not be served is no excuse.

Full text judgment can be accessed here.