CIVIL PROCEDURE – HOW IT SHOULD BE DONE: A DESCRIPTION OF HOW THE ASBESTOS COURT WORKS

Anyone want to see a description of a civil procedure system running smoothly then read Master McCloud’s description of the “asbestos disease court” in her judgment in Yates -v- Commissioners for Her Majesty’s Revenue & Customs [2014] EWCH 2311 (QB). The issue in the case related to the disclosure by HMRC of employment records but this was resolved at the hearing.  However the manner in which the court runs is highly instructive.

Master McCloud.

1. Before proceeding further I thank the parties and interveners for their cooperative approach, which is an example of the way in which parties in this jurisdiction do cooperate. We benefit from having expert legal teams on both sides in the litigation before us in this court and we are well served by them.

1. The parties have, ultimately, set aside differences as to legal interpretation and have asked me instead to set out an interim procedure for handling employment history requests, pending a forthcoming change in the law which the Government has now agreed to implement as a final answer. This judgment is therefore given on the basis of written submissions in lieu of the previously listed oral hearing, with the agreement of all involved.

1. The consequence is that I shall not, in this judgment, express conclusions on the original subject matter of the dispute namely as to whether or not the court has the jurisdiction to direct pre-action disclosure of HMRC schedules in deceased asbestos cases or whether the legislation under which HMRC operates has the effect of preventing it from giving such disclosure voluntarily outside of pending court proceedings.

The asbestos diseases court: an overview

1. Master Whitaker created the ‘mesothelioma list’ with a view to reforming this area of procedure and practice so as to speed up the doing of justice and to reduce both the cost and the use of judicial resources in asbestos-related disease claims. Such claims are still on the increase despite the far greater regulation of asbestos risk which exists in the UK, mostly because asbestos diseases are slow to develop and may emerge decades after the exposure to asbestos. There is still a great deal of asbestos present in the built environment.

1. The RCJ in London handles the bulk of asbestos claims irrespective of the geographic location of the parties, and the claims are assigned to myself and to Master Eastman. In a departure from normal practice at Central Office, such claims are heard flexibly and interchangeably by either of us as necessary and we access and modify each other’s diaries as needed^[1]. By and large the unusual procedural approach adopted has achieved a significant change in the way in which these types of claims proceed, and greater efficiency. We hear and dispose of large numbers of such claims.

1. The underlying approach to asbestos claims places the doing of justice, at speed and with improved efficiency, at the forefront; formalities of procedure take second place if they interfere with that.

The nature of asbestos claims

1. In very many cases (and in all cases of mesothelioma), where a person has contracted an asbestos related disease, death is the consequence often following a short period, of some months, of decline and often unpleasant medical treatment which lengthens survival only by quite short periods. Regularly we see that claims either begin during life but then become deceased claims after issue, or begin as deceased claims on behalf of estates because the victim has passed away before matters could be got in hand. It is the latter type of case with which this judgment is mostly concerned.

1. Many claims which we hear are urgent and sometimes very much so. Most urgent are those which are ‘living mesothelioma’ matters where the essence of justice (for both sides) is avoidance of delay in the gathering of evidence during the life of the claimant, and if possible the resolution of the claim before the Claimant passes away.

1. Early resolution during life is widely accepted as being in the interests of justice in its widest sense as well as narrowly benefiting claimants and insured defendants alike. Many claims even in deceased matters are quite urgent because the age profile of the affected victims tends to be such that those left behind after the death of the asbestos-exposed person are themselves elderly.

Mechanisms of case management in asbestos claims

1. Each delay in a living asbestos claim has a penalty associated with it which is measurable as a proportion of the claimants in the system who will die without a claim being dealt with during that delay. Weeks lost imply lives ended without resolution of the claim, and that can also mean lost evidence which could have assisted either party. Yet where there is a properly arguable defence with a real prospect of success, the Defendant is entitled to a trial and it would be a serious injustice to a Defendant to deny it that right merely so as to ensure speedy hearing of claims, despite the often inevitable consequence that the Claimant will pass away before trial.

1. It is therefore unsurprising that the practice has arisen of making assertive use of our case management powers to streamline the process as far as reasonably and fairly possible. One of the first considerations one gives in timetabling a claim is ‘how long does the claimant have to live?’ which is a salutary yardstick for any judge and gives a human context to the notion of ‘proportionate case management’. It will be no surprise that budgeting is often dispensed with in these unique claims due to the delay which it would cause in our packed lists.

1. As distinct from more conventional courts, we waive most aspects of procedural formality in favour of using technology and extensive^[2] direct access to the two specialist masters, by equally specialist solicitors, using email, an open-door policy, and a ‘no nonsense’ approach. Hearings are generally as informal as the circumstances permit (without of course departing from the law). Frequent use is made of evidence taken on commission at the home of the Claimant on an urgent basis. Almost all hearings are by telephone.

1. Parties are not discouraged from ‘mentioning’ claims or asking for a short hearing or a decision by email on matters arising, and it is seldom that a party is penalised for bringing a matter back for our attention in good faith. The starting presumption for our hearings is ‘costs in the case’ unless there is some real reason to penalise a party.

1. Administratively we try, where resources permit, to ensure that specialist staff assist us with the work of the court so that asbestos claims are effectively a separate channel of work within the system. Where an application is made it is expected to be by way of email either directly to one of the masters (sometimes in practice, to both), or channelled through our staff, and without the formality of drafting and issuing a Part 23 form and the delay of passing paperwork via the hard-pressed Masters’ Support Unit. All we normally require is that the evidential and legal requirements for an application are met, rather than the strict form of a Part 23 application notice.

1. We set directions timetables on the understanding by all involved that the timings are very challenging. Missed time limits are not unusual albeit that of course there is no question of deliberately setting the parties up to fail. Very few ‘ Mitchell ‘ applications arise because claimants and defendants alike are drawn from firms which cooperate with each other and any slippage is, bluntly, often because the timescales in such cases are exceptionally abbreviated. We usually permit parties to agree changes to timescales between themselves within reason, as long as the law permits, and this practice has also helped to avoid unnecessary cluttering of our list with relief applications.

THE ORDER MADE

The parties had agreed a mechanism whereby work records could be obtained speedily pending a change in the law which would expressly allow work records to be released.

1. For that reason the parties have, sensibly, asked me to provide a procedure for dealing with requests for HMRC employment histories in the interim. I have set out a suitable process to which the parties have agreed, in the annex to this judgment. It will be clear from that procedure that the means adopted is the issue of a claim against ‘persons unknown’ so as to ensure that the court has jurisdiction in principle to order disclosure against HMRC.

1. Thereafter in accordance with usual practice in the asbestos diseases court an application may be made by email via the specialist Masters or their staff and served on HMRC with the proposed draft order (a form for which is provided in this judgment) and a schedule of information to assist HMRC to trace the records. It is anticipated that provided the proper criteria for disclosure are met, the HMRC will not oppose disclosure and an order will be made.

1. The procedure approved by Master Eastman and myself necessarily only relates to the London specialist court at the Royal Courts of Justice and not to any other courts which may occasionally handle this sort of claim. I have annexed to this judgment the order in this case, a proforma draft for use in such cases and a form of schedule for HMRC purposes to facilitate the tracing of records at HMR