Historic Victory for UK Asbestos Victims!
Yesterday afternoon (December 5, 2017), the High Court declared that historical documents detailing corporate knowledge regarding the asbestos hazard due to be destroyed as part of a confidential agreement between Cape Distribution Limited, other Cape subsidiaries and Concept 70 Limited must be preserved and shared with parties not involved in the original litigation.
The ruling marked a positive outcome for a case1 – Dring v Cape & Ors – brought by the Asbestos Victims Support Groups Forum (the Forum) and its solicitor Harminder Bains, both of whom welcomed the decision by Master Victoria McCloud.2 Speaking on behalf of the Forum, Graham Dring said:
“These documents could also shed light on the close relationship between the Factory Inspectorate, whose function was supposed to be protecting the health and safety of workers, and the asbestos industry that they were supposed to be regulating. We need to know how and why the biggest industrial disaster to hit this country, one that has not yet played out, was allowed to happen.”
Solicitor Bains, a partner in the industrial diseases team at Leigh Day & Co., who has also successfully represented the Forum in judicial reviews, said:
“I am very pleased that these critical documents, that the asbestos industry has kept hidden for years, are now in the public domain. I cannot wait to read them, and hope they will expose what Cape knew about the dangers of asbestos.” 3
Background
The legal challenge brought by the Forum emerged from a court case begun in early 2017 by Concept 70 Limited, a company seeking recompense for compensation payments to employees who had contracted mesothelioma after exposure to asbestos products manufactured by Cape Distribution Limited and other Cape companies. During that case Cape had handed over thousands of documents which “showed what Cape companies knew about the dangers of exposure to asbestos. These were only revealed at this time to the two parties involved.”
After the case settled, Solicitor Bains asked the solicitor representing Concept 70 for access to the documents which she believed were in the public domain only to be told they were due to be destroyed imminently. On April 6, 2017 Solicitor Bains made an urgent ex-parte without notice application on behalf of the Forum to Master Victoria McCloud at the Royal Courts of Justice requesting the documents be returned to the Court for preservation pending resolution of the matter. The application was granted and a hearing took place before Master McCloud between October 9 and 12, 2017. In his statement to the Court, Graham Dring said access to these documents would benefit victims of asbestos related diseases by helping them establish corporate negligence and substantiate personal injury claims. Harminder Bains told the Court:
“The documents we seek will assist liability experts and the Courts to consider… how the numerical values contained in TDN13 [Technical Data Note 13, a health and safety standard relied on by Defendants] came to be set and on what evidence they were based… What did Cape know about ‘safe’ levels of asbestos in the 1960s? …did the industry put profit before safety and did the [Factory Inspectorate] let them?”
Judgment
These arguments found merit with Master McCloud who noted in her 64-page judgment that:
“Mr Dring acts for a group which provides help and support to asbestos victims. In some respects it is also a pressure group and is involved in lobbying and in promoting asbestos knowledge and safety. Those are legitimate activities and provide legitimate interest. The evidence before me demonstrates that the intended use is to enable him and the forum of which he is an officer, to:
- make the material publicly available,
- by making it available to promote academic consideration as to the science and history of asbestos and asbestolux exposure and production,
- improve the understanding of the genesis and legitimacy of TDN13 and any industry lobbying leading to it in the 1960s and 1970s.
- understand the industrial history of Cape and its development of knowledge of asbestos safety
- clarify the extent to which Cape is or is not responsible for product safety issues arising from the handling of asbestolux boards
- to assist court claims and the provision of advice to asbestos disease sufferers.
Those are legitimate aims.”4
Concluding Thoughts
It is unknown at this time if Cape will apply for a stay pending an appeal application. However, the ruling as it stands sets a precedent applicable to other cases where applications could be made to release documents disclosed in litigation where legitimate reasons for doing so could be established along the lines of those accepted by Master McCloud.
December 6, 2017
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1 Mr GRAHAM DRING for and on behalf of THE ASBESTOS VICTIMS SUPPORT GROUPS FORUM (UK) Applicant and Cape Distribution Limited, Cape Intermediate Holdings Limited Concept 70 Limited (and others) Aviva Plc
2 Asbestos Victims Support Groups Forum.
http://www.asbestosforum.org.uk/
3 Harminder Bains.
https://www.leighday.co.uk/Our-people/Partners/Harminder-Bains
4 Judgment. Graham Dring v Cape Distribution Limited, Cape Intermediate Holdings Limited, Concept 70 Limited (and others) Aviva Plc. December 5, 2017.
https://www.leighday.co.uk/LeighDay/media/LeighDay/documents/Asbestos/Dring-v-Cape-2017-EWHC-3154-QB-Judgment.pdf
