England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
NOTTINGHAM DISTRICT REGISTRY
(HIS HONOUR JUDGE INGLIS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th June 2008

Lord Justice Rix:

1. This is an application made by Mrs Stephanie Baker, an appellant in this court, that her appeal be allowed to proceed on the basis than the second and third respondents to it bear their own costs regardless of the outcome. The second and third respondents referred to in that application are Meridian Limited (who used to be called Courtaulds Plc), the second respondent, and Pretty Polly, both of whom had been involved together with the first respondent, Quantum Clothing Group Limited ("Quantum") in large-scale litigation involving textile employers in Nottinghamshire and Derbyshire. The question in that litigation is whether such employees should be held liable in respect of noise-induced hearing loss, or NIHL, suffered by their employees, arising out of their being subjected over the long term to industrial noise in their employment at a level above 85 dB(A) leq, but below the long-established watershed of 90 dB(A) leq. I shall refer, as necessary, to 85 and 90 in that connection.
2. The background to this litigation, which is in effect group litigation by another name (it is not formally group litigation, it is proceeding by a number of test cases) is set out in my judgment and that of my Lady, Smith LJ, which we delivered on 28 June 2007. I shall refer to that judgment as necessary for the purpose of this judgment, but I will take what is in it as read as background without the need to repeat that background again.
3. The position, in effect, on this application is that Mrs Baker was the only one of the test claimants in whose favour the judge below, HHJ Inglis, found a noise-induced hearing loss. He quantified that loss in financial terms as at a figure of £5,000, running over the whole length of her employment from the early 1970s. He found nevertheless that her claim failed because, in her case, her employer (now called Quantum) owed no duty in respect of noise above 85 before the coming into effect of the 1989 regulations at the very beginning of 1990, by which time Quantum was issuing protective clothing.
4. On that basis Mrs Baker was the only claimant to receive permission to appeal from the judge and her appeal is before the court -- that is an appeal against Quantum. When consideration was given to the width of her appeal, Meridian and Pretty Polly sought to be joined to her appeal as respondents. They submitted that they were entitled to be joined, as parties to the litigation at trial who were affected by the appeal, and therefore entitled to be joined as of right under CPR 52.1(3)(e)(i), and in any event should be permitted by this court to become a party to the appeal as a respondent under CPR 52.1(3)(e)(ii). As a result of a detailed debate between the parties before this court on 28 June 2007, it became apparent to the parties as a whole, including Mrs Baker through her representatives (in essence Mr Hendy QC), that the respondents or would-be respondents were right to submit that the Mrs Baker appeal should be taken broadly so as to investigate and decide, at the level of this court, the whole breadth of issues (I speak generally) raised in the court below and raised, or potentially raised, by Mrs Baker in her appeal.
5. It was agreed that Mrs Baker's appeal should be taken in this way, even though that might be said to extend the appeal, albeit it was difficult to say exactly to what extent this would be so beyond the strict limit of Mrs Baker's appeal, broad as that was. That was the first substantial issue debated in June last year before this court and, as a result of the debate in court, it was settled essentially by a growing consensus which developed in court, which one can see referred to in my judgment, for instance, at paragraph 18. Thus, I said at paragraph 22:

"In truth issues which are being debated are being debated not simply for the sake of Mrs Baker's £5,000 but for the sake of all the potential claimants and defendants in this litigation, and this litigation will have an important outcome in this NIHL context beyond this litigation itself for other potential claimants and other potential defendants in other industries as well. Therefore, the justice of the matter is to accept that it will not be Mrs Baker who bears any potential liability but the underwriters, who have been in the saddle effectively of the conduct of this litigation as a whole throughout."

6. Now the second issue which arose in June last year against that background was whether a special order should be made, putting the new respondents -- Meridian and Pretty Polly -- on terms that they would be allowed to be joined to the appeal only on the basis that they would bear their own costs even if successful in the appeal. On paper, my Lady, Smith LJ had made such an order, while at the same time limiting the issues on appeal to those raised specifically by Mrs Baker and not accepting that additional matters raised by the respondents would be in the appeal. That may have been on the basis that the new respondents were not entitled to be joined and the court could put them on terms.
7. By the end of the hearing before us, nevertheless, it seemed to us that the proper court to consider the appropriate order for liability in costs in terms of the matters which had been debated before us (who was raising what issue were the respondents raising issues which went well beyond Mrs Baker's appeal? -- those were the matters debated before us last year) was the court which would be hearing the appeal (see paragraphs 23 and 24 of my judgment). That was on the basis on which I, and I think I can speak for my Lady as well, we were proceeding on that occasion, namely that there would be an appeal as now constituted, with three respondents in all, and that that was an appeal the costs of which trial underwriters would underwrite (see paragraphs 22-24 of my judgment). In those circumstances the submission that we were dealing with was that it would be unfair, submitted Mr Hendy on behalf of Mrs Baker, nevertheless to saddle the underwriters of Mrs Baker's trial and appeal (ATE underwriters, a company called LAMP) "with potentially duplicate costs by the introduction of further respondents" (see the second sentence of my paragraph 23).
8. It is true that the possibility had been raised in the course of submissions that those underwriters would need to be apprised of the new circumstances, namely that first of all the scope of the appeal had been potentially increased with a consequential increase on the prospective length of the appeal, but secondly in particular that there were now two separate parties involved, Meridian and Pretty Polly, in addition to Quantum. Those were the circumstances in which we decided that that question of costs should be left over for the Court of Appeal hearing the appeal. It is important in this connection, both for the purposes of that judgment and for the purposes of the issue debated before us today, to remember that the issues in Mrs Baker's appeal, by the end of last June's hearing, included Meridian and Pretty Polly's personal position -- if I can put it that way -- in relation to the question of their actual knowledge, which was the ground upon which, in their case as distinct from other less major textile employers, the judge had taken back the date of the onset of liability to 1985 (see my judgment at paragraphs 16 and 18).
9. Today's issue, raised by Mrs Baker's application, however, is a different one in relation to costs. In circumstances where it has become clear that Mrs Baker's ATE underwriters are only willing to underwrite the costs of an appeal against Quantum (albeit on the now expanded basis laid down last June), and are not willing to underwrite the potential costs liability of success in respect of the new respondents, Meridian and Pretty Polly, if successful, as well: that has led to Mrs Baker's application that the appeal proceed on the basis that Meridian and Pretty Polly bear their own costs. There is, however, no suggestion in that application that Quantum should bear its own costs in any degree.
10. Although aspects of considerations of fairness may be common between the issues debated before this court in June last year and what has been debated before us today, nevertheless the issue raised by Mrs Baker's application today is wholly different from the issue raised in June of last year, which essentially related to the terms upon which, as I have explained, Meridian and Pretty Polly be permitted to be joined as respondents. Today's issue arises for the first time out of the new circumstance that Mrs Baker's ATE underwriters are unwilling to underwrite Mrs Baker's potential liability in costs to Meridian and Pretty Polly.
11. So the issue is different. There is nevertheless debate before us as to whether there has been a critical change of circumstance, such as it is submitted is necessary for this court to revisit the question of whether a protective order of costs should be made at this pre-emptive stage contrary to the view of this court last year. The critical change of circumstance relied upon by Mr Hendy on behalf of Mrs Baker is that, whatever might have been the possibility floated in court last year, it has now become clear, despite serious attempts to solve the problem for Mrs Baker over the intervening period, that ATE underwriters are not willing to go beyond either the underwriting of Quantum's costs or, at most, the underwriting of all the respondents' costs but limited to £250,000. An attempt has been made to obtain funding from the Legal Services Commission (the LSC) but that has failed both on application and on appeal. Hence this application, because it has now become clear that unless an order, such as that requested, is made, Mrs Baker's appeal will be prohibited and she will fail to obtain access to an appeal for which she has been given permission.
12. On the question of change of circumstance, which, it is submitted, is a necessary condition for this court to vary or revoke an order for the purposes of CPR 3.17, Mr Christopher Purchas QC on behalf of Meridian has submitted that there is no change of circumstance by reason of the fact that, at any rate, the possibility that LAMP would be unwilling to continue to underwrite Mrs Baker's appeal in the light of the joining of Meridian and Pretty Polly as respondents had existed last June. On the other hand, on behalf of both Quantum and Pretty Polly, Mr Owen QC accepts that the mere floating of that possibility does not prevent there being a critical change of circumstance in the light of what has unfolded in the last year. I agree with that realistic appreciation of the situation. It seems to me clear from my judgment of last June that whatever may have been said in argument as to possibilities in the light of the information that would have to be given to Mrs Baker's ATE underwriters, nevertheless my judgment proceeded upon the basis that an appeal would take place and that Mrs Baker would have ATE underwriters for that purpose. So there is, to my mind, the critical change of circumstance, if needed. Our order of June 2007 does not need revoking; it does not even need varying. It is simply that an application is now made for something which is not there. It is true that against the background of my Lady's order, made on paper, and against the background of considerations in our judgments, the question (I have explained why it arose on a different issue) of whether a special order should be made at that time in relation to Meridian and Pretty Polly's costs was considered, but nothing on those lines had to be stated in the order. Be that as it may, if there is any need for a critical change of circumstance to support a variation or revocation of any order made last June, it is to be found in the change which I have already outlined.
13. Now there is a separate issue raised only by Mr Owen in relation to change of circumstance, arising out of two different orders to which I will come in due course in my judgment below. But so far as Mr Hendy's application and Mr Purchas's opposition on behalf of Meridian are concerned, the position is as I have stated it and as I would adjudge it to be.
14. So against that background I need next to approach, as a matter of considerations of fairness, the question: what is the appropriate and just order to make in this case? I take into account in particular the following matters which have been outlined or debated before us. First of all, Mrs Baker's appeal in her own interests both covers essential issues debated at trial (they are mentioned in my judgment of last June) and her pursuit of the £5,000 contingently awarded to her requires her to succeed in her attempt on appeal to show that Quantum owes to her a duty of care in relation to noise levels above 85, all the way back to 1972. But of course that date, which goes so far beyond the findings of the judge in relation to any defendant at trial, also raises (one can see) a matter of immediate concern to the industry as a whole in Nottinghamshire and Derbyshire; to Meridian as possibly the biggest employer in those counties in the textile industry, but also potentially to many other industries and employers and employees.
15. On the other hand, as I have already explained in this judgment and in paragraph 22 of last year's judgment, it is accepted on all sides that Mrs Baker's appeal is a vehicle for the debating on appeal of all the issues relevant to the litigation as a whole. After all, Mrs Baker remains a test case, even if the only partially successful one, for the purpose of throwing light upon the cohort of potential claimants in this litigation which lie in the background. Now, the fact that Mrs Baker's appeal is such a vehicle, it seems to me, cuts both ways for the purposes of this application; on the one hand it is plain that the interests involved in the matters to be debated on the appeal are extremely broad and matters of important public interest -- that is to say, they are of broad interest to all employers and employees in this industry but also, of course, well beyond because, in a word, they challenge the convention in the past that there is no liability for noise levels below 90 until the coming into effect of the 1989 regulations.
16. So, on the one hand this court has to bear in mind that the interests involved in this appeal -- were it to proceed or were it to be stifled -- are very broad and a matter of public interest. On the other hand, it is also plain, from the same background, that Mrs Baker's ATE underwriters, LAMP, and indeed Mrs Baker's lawyers who are all proceeding on a conditional fee basis, have themselves personal interests on a broad scale, arising out of the huge commitment in time and costs which has already arisen out of the five-week trial. The very large costs, potentially running into the millions, are referred to in my judgment of last year.
17. So, one of the factors which arises on this application is the concern -- cogently expressed by Mr Purchas on behalf of Meridian -- that ATE underwriters are seeking, by stating the limited level of their potential support for an appeal, to impose terms upon which those underwriters are, in their own interests, willing to continue to participate as underwriters. It is submitted by Mr Purchas that this is fundamentally unfair and wrong. He also points cogently to the unhappy fact of the personal interests of the lawyers involved for their own past costs and time.
18. The next matter I bear in mind is Mrs Baker's personal position. Her concern as an appellant is for £5,000, a matter I accept of great importance to her, a lady of limited means; but on the other hand a figure which is simply swamped by the other financial considerations involved in this litigation. The fact is, however, as I understand it, that -- from her personal point of view as a litigant potentially liable for overwhelming costs -- her position is in practice secure and therefore irrelevant. She relies first of all on her underwriter's promise to indemnify her as far as it goes -- that is to say, so far as Quantum's costs are concerned -- and indeed, we are assured by Mr Hendy on her behalf that her position is totally secure whatever happens to this application, so far as her liability to her lawyers and counsel are concerned. So far as her liability to an application for costs from the respondents, there is no formal undertaking from any of the respondents not to pursue her for costs or not to enforce a costs order against her. I understand that, because, since any costs order is made in form against her, no undertaking can be given to exempt her from costs. That remains the position and there is no formal undertaking. Nevertheless Mr Purchas has indicated that there is no intention, subject to preserving the formal position so as to entitle successful respondents to obtain costs against her underwriters, to pursue her for respondents' costs arising out of the appeal. Now, in the new world in which we live of conditional fee arrangements and ATE insurance, it ought to be possible, in my judgment (but the matter has not been debated before us, I accept), to ensure that a successful respondent can obtain its costs from an ATE underwriter while at the same time giving an assurance to the appellant in person that he or she will not be personally pursued for that liability. Whether there is a form of words which can be arrived at so that a formal undertaking can be given remains to be seen, I say nothing more about that; but it is my understanding from Mr Purchas -- and I do not understand Mr Owen to the extent that he represents Pretty Polly to dissent from this – that there is no desire on the part of those respondents to see Mrs Baker prejudiced by reason of their entitlement to costs in the event of success on appeal. And therefore I regard Mrs Baker's personal position as in that sense neutral or irrelevant to the considerations of fairness which I have to take into account.
19. The next matter that I take into account is that, on the evidence before us which is not challenged, this appeal cannot go ahead if there is to be a liability for Meridian and Pretty Polly's costs in addition to that of Quantum's; and therefore this court has to accept that if this application is rejected then this appeal cannot go ahead and will be stifled, and this would be a blow, of course, to Mrs Baker, so far as her potential claim of £5,000 is concerned. But much more important than that, it would be a blow to all the interests involved in this litigation, and I stress, as I have indicated already, that amongst those interests are the interests of Meridian and Pretty Polly themselves to claw back from the judge's finding that they, as a big employer, had knowledge which imposed upon them a duty as early as 1985, towards the safety of the conventional previous situation where noise levels under 90 start to cause a potential liability only with the coming into effect of the 1989 regulations.
20. The next matter I have to consider is the potential injustice to Meridian and Pretty Polly that lies in the fact that, if the application is acceded to, they would not recover their costs even if they were successful. It is an underlying fact and groundswell of litigation in this jurisdiction that the normal rule - subject to irregularities of conduct and offers and suchlike - is that a successful party recovers its costs, and therefore Meridian and Pretty Polly are entitled to say that an order, preventing them now from obtaining costs if they were successful on appeal, would be an unfair order, and I bear in mind what I have already alluded to -- Mr Purchas's powerful submissions -- that, in this connection, it is simply wrong that underwriters can seek to call the limit to their own liability on appeal while at the same time seeking to recover for themselves, by way of the appeal, costs below, because I have in mind the contingent appeals on costs in relation to the 10% and in relation to the 90% referred to in my judgment of last year, and indeed costs in relation to this effective group litigation as a whole. These are, as I have said more than once, powerful submissions to which I give serious and weighty attention.
21. Next, however, I have to take into account the facts of the world -- one might call it the new world -- that we find ourselves in; that is a world in which legal aid, as it used to be available, is effectively no longer available and has been replaced by such matters as conditional fee agreements and ATE insurance. Now this is not necessarily the happiest of worlds, but it is one that we have to accept and live with, and seek to find a solution for, or at any rate the least worst solution.
22. I come then to what I see as the essential critical factors pertaining to this application. The first is that there is no suggestion in this application, as I have said, that the chosen respondent to Mrs Baker's appeal -- that is to say, Quantum -- should not be fully covered for its costs. The second factor is that Meridian and Pretty Polly are not Mrs Baker's chosen respondents. It is true -as I bear in mind, as I have indicated - that her appeal is a vehicle for wider considerations than that, but they are not her chosen respondents. It is Meridian and Pretty Polly who have come forward and said "Join us". Now their joinder may be one of right under subrule (e)(i), or one for permission under subrule (e)(ii). I have indicated in my judgment of last year, without needing to rule, that it may be a matter of both. In some respects of right; in some respects a matter of permission. But for all that, whether it is of right or permission and indeed, even if it is entirely as of right, their choice is to be joined, and they join for their own interests and for the purposes, as I have indicated, of pushing forward, in their own interests, the date at which they undertake a relevant duty of care at 85 from 1985 to 1 January 1990.
23. I break off at this point to consider a special submission made by Mr Owen on behalf of Pretty Polly, not mentioned by Mr Purchas on behalf of Meridian, in respect of two separate orders made by my Lady and myself in July of last year and January of this year in the light of the unfolding saga of Mrs Baker's attempt to obtain funding which would cover the whole of her appeal as reconstituted by last June's judgment and order. While that attempt to obtain funding from ATE underwriters and/or the LSC was progressing, Mrs Baker, and indeed the parties as a whole, needed to have some understanding as to the progress of their appeal, and therefore there was an application to my Lady and myself for a stay of the appeal in the meantime. The wording of the order that was made in July last year on that application, extended so far as dates were concerned by a subsequent order in January of this year, was that the appeal should stand dismissed unless by a certain date (that was the date that was extended ultimately to 1 February of this year) Mrs Baker has either served a further notice of funding, confirming that funding had been secured, or filed an application for a continuation of the stay.
24. Based on those orders, Mr Owen submitted that the application being made by Mrs Baker today (being an application in the form of neither those two conditions alluded to in the order) meant that the appeal stood dismissed. I think that, putting his submission at its highest, that was Mr Owen's submission, albeit he then appeared to row back from that broader submission to a rather narrower one to the effect that, in the light of those further orders, it was no longer possible to submit -- as he accepted it was right to say in relation to the June order -- that there had been a change of circumstances in the meantime. In my judgment those submissions are in error. In truth, the July and January orders were a working-out of the situation which had been reached under our June order in circumstances where, following the June order, it was becoming apparent that the obtaining of funding for the appeal, as then constituted, was proving difficult or impossible. It is contemplated in the order that the consequence, therefore, might be that Mrs Baker would find it totally impossible to proceed with her appeal and it would have to be dismissed. On the other hand, as is common in such an order providing for summary dismissal otherwise than on the merits, the order contained a liberty to apply. What has happened is that the position is neither as bleak as might possibly have been forecast when those orders were being applied for and made, nor has been of course entirely successful for the purposes of Mrs Baker's pursuit of funding. The position is that Mrs Baker has obtained funding for the extended appeal granted and laid down by this court's order of last June so far as Quantum is concerned, even though that appeal might last longer and cover a greater number of issues than had at one time been contemplated. That funding has been achieved. What has not been achieved, however, is funding to cover the position of Meridian and Pretty Polly as well. And so in those circumstances Mrs Baker has applied before 1 February 2008, which is the time limited by the second of those two further orders, namely on 31 January 2008, for the application which we are considering today. I consider that application as being made under the liberty to apply of those orders.
25. In one sense it might be said that there has not been a change of circumstance since the time of those further July and January orders and in another sense it might be said that there has been a change of circumstance, but I consider that the critical question for the purposes of change of circumstance is whether there has been a change of circumstance since our judgment and order of 28 June last year; that is how Mr Hendy and Mr Purchas have looked at it, and I think that is correct.
26. Therefore it seems to me that if change of circumstance jurisdiction is needed, as I have already said we have it: and the orders of July and January are not, on their own terms, a final impediment to this application, and there is otherwise, I would emphasise, no question about our jurisdiction to make the order applied for. There has not been any discussion about where that jurisdiction or power it is to be found, but in my judgment it is to be found in the Supreme Court Act 1981, section 51 and in CPR 3.1 (2)(m) (see King v Telegraph Group Ltd [2004] EWCA Civ 613, [2005] 1 WLR 2282).
27. The next subject I must briefly mention before coming to my conclusion is the question of capping. There has been some discussion in court today about the possibility not of a total pre-emption upon Meridian and Pretty Polly's costs if successful on appeal, but on some form of capping of the respondents' costs. This is because it is clear from the documents before us that, in their search for funding, Mrs Baker's advisers have obtained -- as has been confirmed to us in court by Mr Hendy -- sure ATE insurance for at least £250,000, covering all three respondents. That is the fact which has given rise to some discussion of the possibility of a pre-emptive order by way of capping, rather than by way of total prescription.
28. Nevertheless, there is before us no application on the part of Mrs Baker for a capping order nor (and perhaps this is of more importance) has there been a cross-application on the part of Meridian or Pretty Polly for a capping order. Meridian and Pretty Polly have taken their stand for the purposes of today upon a total opposition to the application in the hope that Mrs Baker's appeal would thereby be totally destroyed. They have not been interested in some form of limitation on the costs which they might obtain if successful in the appeal, because I assume that would permit of the possibility that Mrs Baker's appeal would go ahead and not be stifled by considerations of costs.
29. Now, in a situation where there is no application from any party before us for a capping order, in my judgment that possibility does not arise. It would of course be of particular concern, at any rate in the form discussed in court, that is to say a capping order covering all three respondents, it would be a matter of particular concern for Quantum, which otherwise looks forward to an order in its favour, if successful, on this appeal. Such a capping order, embracing all three respondents, would open up conflicts of a particular kind between Quantum and the other two respondents. It would be of particular concern to Mr Owen as counsel for Quantum; it would also be of concern to him as counsel for Pretty Polly, and it might well make it impossible (but I suppose at the end of the day that would be a matter for agreement between those parties) for him to continue in his present guise as leading counsel for both those parties.
30. At any rate, for all those reasons the question does not arise. I would simply say that if there had been an application before us for some kind of capping order, then that would have had to have been explored, and it might be that it would have to have been explored not only in terms of the position which we have been assured today by Mr Hendy is in hand, namely the availability of at least £250,000 in respect of costs of all three respondents, but also perhaps in other potential forms. It may be that this application would therefore have had to have gone over can be adjourned; but those issues are not before us and I mention them only to make that point and for the sake of completeness.
31. Before I come to my conclusion, which I accept must be my attempt at finding what is the least of the potential evils with which the court is faced, on the one hand, a stifling of Mrs Baker's appeal and, on the other hand, some potential injustice to Meridian and Pretty Polly, as I accept, I come back to the critical factors which I have mentioned earlier in my judgment. Meridian and Pretty Polly are not Mrs Baker's chosen respondents; they have joined themselves to this appeal, even if that is a joinder as of right. Quantum's costs -- if Quantum is successful -- are covered in full, and Quantum is Mrs Baker's chosen respondent.
32. Is there to be an appeal or not? That ultimately is the question. It was accepted already in June of last year that this appeal is a broad appeal which is a matter of public interest, covering not only the immediate parties to it but many other potential parties in the background as well. It seems to me that the issues raised by this appeal -- in which so much money has already been invested at trial, costs which far, far (as best as I can assess them on the evidence) outstrip the extra costs which will be devoted to the appeal so far as Meridian and Pretty Polly are concerned and which are not to be lightly wasted in this context – require to be considered by this court. If the question is, as I see it to be, Is there to be an appeal or not?, the answer must, in justice, be in favour of the appeal. I accept that involves some injustice to Meridian and Pretty Polly. It is the least injustice in the case, in my judgment; the least of evils. They at least are large parties acting in their own interests and they are well able to look after themselves.
33. In coming to that conclusion and stressing those particular factors, I have, as I hope I have indicated in this judgment, sought to take into account the full range of material and submissions put before us today, but my conclusion is that I would accede to Mrs Baker's application and propose that this court orders that Meridian and Pretty Polly bear their own costs of the appeal, regardless of its outcome.

Lady Justice Smith:

34. I agree.

Lord Justice Buxton:

35. I also agree.

Order: Application granted.