The claimant in this case made a claim pursuant to the Civil Liability (Contribution) Act 1978 and Section 3 of the Compensation Act 2006 for indemnity against or contribution in respect out their outlay in prior proceedings. In earlier proceedings, the claimant was among a number of defendants in an action for personal injury arising out of Mr Stratford’s death. Mr Stratford contracted mesothelioma and it was alleged that this was caused through exposure to asbestos during the course of his employment with several employers.
It was agreed that the deceased had probably worked for the claimants in the tax years 1968/69 and 1969/70 and for the defendants in the years 1975/76, 1976/77 and 1977/78. The court was asked to determine whether it was more likely than not that Mr Stratford was exposed to asbestos during his employment with the defendants.
The claimant sought to rely upon the witness statement of the deceased and Mr Bloxham who worked with the Mr Stratford and also died of mesothelioma. The defendant relied upon the evidence of Mrs Ling, a secretary at the firm and subsequently a director, who stated that the deceased was probably not exposed to asbestos as alleged. The court held on the evidence available that the deceased was not exposed to asbestos during the course of his employment with the defendant. Accordingly, the claim was dismissed.
Whilst a decision on fact, this case is nonetheless interesting in terms of the logistics of mesothelium litigation.
The claimant seeking contribution, Young Austen, had been one of a number of defendants in the original mesothelioma action and was subject to a show cause procedure as developed in the central registry. Such procedure is conducted on the basis that unless the Defendant can show some credible evidence or argument to rebut plausible evidence of asbestos exposure, Summary Judgment will be entered. As Defendant Young Austen was subject to Summary Judgment on this basis.
Bucon Heating and Ventilation Limited were able to produce evidence to challenge the allegations of asbestos exposure which meant that they were not subject to summary judgment and the judge at the trial, the contribution proceedings accepted this evidence as being likely true.
It therefore followed that the Judge considered the evidence of the deceased insofar as it related to Bucon Heating and Ventilation Limited to be unreliable. It will be appreciated that judgment was entered on a summary basis against Young Austen, as Defendant, as they could not challenge the deceased’s evidence. It does not follow automatically from this that the deceased’s evidence was inaccurate in relation to Young Austen, nor that they were incorrectly made subject to summary judgment. However, this situation does indicate the potential for inconsistency and injustice to arise if there is an overuse of Summary Judgment.
A similar, if not identical, situation arose in the case of Pugh v James Parkes & Sons (2008) EWHC 2964 (QB) where a claim was made against a third party after Summary Judgment had been entered against the Defendant. On trial of the contribution proceedings, the Judge rejected the claim against the third party, which related to exposure at the third party’s premises where the original claim had been brought, in respect of the same alleged exposure having regard to the Defendant’s status of the claim as employer. In other words there was clear inconsistency between the finding and Summary Judgment and the finding in the contribution proceedings.
Whether a number of parties and the Claimant is essentially relying upon the same evidence against each party, there is clear danger in entering Summary Judgment against such Defendants who cannot produce evidence if there are some who can. Whether at a point in time, distant by many years from exposure, a Defendant can produce evidence to challenge exposure may be a matter of happenstance but the fact that one Defendant at least can challenge the Claimant’s account arguably makes the case unsuitable for Summary Judgment. It might be thought more appropriate in this situation that interim payments be ordered which can be adjusted at final adjudication