England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/04/2012

Mr Justice Cranston:

Introduction

1. This is an application for permission to appeal from a decision of Senior Master Whitaker on 20 July 2011, when he refused the application of J Preston and Sons Ltd ("the appellant") to strike out a claim as an abuse of process. The claim is for damages and is brought by Julie Hurst on behalf of the estate of her father, Gordon Anderson. It arises out of his death from lung cancer. The claim alleges that the death was caused, in part, by her father's exposure to asbestos dust during his employment with the appellant between 1949 and 1988. J Preston and Sons Ltd admit that Mr Anderson was exposed to asbestos dust negligently or in breach of duty in the course of his employment. Their defence revolves around causation. In outline the case before the Master concerned whether the behaviour of Mr Anderson's then solicitor created a substantial risk that a fair trial of that issue was no longer possible.

Background

2. Mr Gordon Anderson was a pipefitter. He was in that job from about 1949 to 1988, employed by a company called J Preston & Sons Ltd of Chorley, and later by J Preston & Sons (Mechanical Services) Ltd. On his account, set out in a witness statement, he was exposed to asbestos dust and fibre during that employment. The company was awarded contracts for installing new boilers at several sites. He and his fellow employees had to remove asbestos lagging from the old boilers and apply asbestos to the newly installed boilers.
3. Mr Anderson's account continued that from the early 1960's until 1988 the company sent him to work at an ICI plant at Cleverley, where he had to replace pipes and in the process strip off asbestos. Other pipe fitters were doing the same and there was much dust around. He thought it was blue asbestos (which the appellant denies). In the late 1970s, on his account, ICI took action when the dangers of asbestos became widely known and he did not knock off lagging any more. He had been undertaking that type of work at ICI for some 10-12 years. In his estimate, when working for J Preston & Sons companies, twenty percent of his time was spent on removing asbestos lagging and its reapplication. After 1988 Mr Anderson worked for an engineering company as a manager and was not exposed to asbestos.
4. In early January 2008 Mr Anderson saw his GP, who recorded that he had an atypical chest pain and coughed a little phlegm. As a result the GP referred Mr Anderson for a chest X-ray at the Blackpool Victoria Hospital. The X-ray on 18 January 2008 detected a pattern which seemed to identify early pulmonary fibrosis. The GP told Mr Anderson about this possible diagnosis on 24 January and referred him to the Department of Respiratory Medicine at the hospital. There he was seen by a registrar on 7 February, who wrote to the GP:

"Of note he is an ex-smoker having stopped smoking 13 months ago but unfortunately still has a 60-pack year history. He used to work in plumbing and pipefitting and had regular exposure to asbestos in the past. He tells me he was often involved in breaking down the lagging on boilers, which caused a thick fog of asbestos in the air with no protection … There is a possible early fibrosis …"

5. On 28 February 2008 Mr Anderson had a CT scan at the hospital. It showed non-specific pulmonary fibrosis and some right hemidiaphragmatic pleural plaques, suggestive of previous asbestos exposure. There were no features indicating malignancy. The matter was then discussed by the hospital's multidisciplinary team for lung disease. In late March it concluded that Mr Anderson had mild sub-pleural fibrosis and calcified plaques, which would fit with his having asbestosis. In late April the consultant saw Mr Anderson and explained that the diagnosis was asbestosis and Mr Anderson might qualify for compensation.
6. Mr Anderson made an initial inquiry of Mr Craig Howell, then a solicitor with Oliver & Co, in late May 2008. To Mr Howell it was a possible asbestos case, but before he could enter a conditional fee agreement with Mr Anderson it was necessary to clarify the diagnosis and the employer. Mr Howell requested that Mr Anderson sign forms of authority to access the medical records. On 13 June he wrote to Mr Anderson for the forms and to J Preston & Sons Ltd for details of Mr Anderson's employment. On 16 June 2008 Willis Ltd wrote to explain the corporate reorganisations involving the appellant and also that Eagle Star held some employer's liability policies of insurance. Mr Anderson returned the requisite forms. On 24 June 2008 Mr Howell applied for Mr Anderson's medical records and his Inland Revenue schedule to evidence his employment. Mr Howell received the medical notes from the Blackpool Victoria Hospital in August 2008 and concluded that he was dealing with a case of mild asbestosis. In early September Mr Howell undertook further work on Mr Anderson's employment history. On 9 September Mr Anderson signed a conditional fee agreement and gave a draft witness statement.
7. On 6 March 2009 inquiries at Zurich Insurance plc ("Zurich") from November 2008 produced an apologetic but a positive response about insurance cover for Mr Anderson's former employer. On 21 April 2009 Mr Howell sent an "Urgent-Asbestos Related Disease Claim" to Zurich Insurance plc, which tracked the circumstances of Mr Anderson's exposure to asbestos set out in his draft witness statement, included the Inland Revenue schedule of Mr Anderson's employment history, made allegations of negligence and breach of duty and stated that Mr Anderson was to be referred to an expert doctor who would have full access to the medical records.
8. There is a letter from Zurich dated 16 June 2009 requesting, inter alia, Mr Anderson's exposure history and the Inland Revenue schedule. Zurich said that it did not regard a joint expert as appropriate but reserved the right to instruct its own medical expert. Mr Howell says that he never received that letter, which the appellant accepts. Meanwhile, in April Mr Howell had instructed Dr Barber, a consultant respiratory physician. His examination of Mr Anderson occurred on 17 July 2009. Before Dr Barber's report was available Mr Anderson signed his witness statement. Then on 22 August Mr Anderson told Mr Howell that he had undergone a biopsy just under a week earlier and his GP had informed him that he had lung cancer. Mr Howell then wrote to the GP for up to date records, to forward to Dr Barber.
9. Dr Barber's report, dated 11 September, contained a detailed occupational history, which included an estimate by Mr Anderson that he spent about 20 percent of his work from 1949 to the late 1970s handling asbestos in dusty conditions. Dr Barber concluded that "there has been ample cumulative exposure to confer a risk of all asbestos related diseases". He further commented that investigations "have included detailed pulmonary function studies and high resolution CT scanning which have confirmed interstitial lung fibrosis with absolute certainty …" Using the employment history which he took from Mr Anderson, Dr Barber concluded, on the balance of probabilities, that the lung fibrosis was asbestos-related, i.e. was asbestosis. If, as he suspected, Mr Anderson also had lung cancer, the overwhelming probability in Dr Barber's opinion was that it was a consequence of his exposure to occupational asbestos, along with his smoking history.
10. On 9 October Mr Howell wrote a letter to Zurich marked "urgent", informing them of the presence of lung cancer and that there had been no response to his letter of 21 April. No response having been received from Zurich Mr Howell wrote again on 28 October. Those letters led to the appellant's solicitors, Keoghs, being instructed. They wrote to Mr Howell on 12 November, requesting a copy of Mr Anderson's witness statement regarding his exposure history and his up to date medical records. Mr Howell sent an Inland Revenue schedule of employment, and some medical records, but not the witness statement. A further letter from Keoghs, requesting Mr Anderson's witness statement, went unanswered. Mr Howell had instructed counsel to advise on the adequacy of Mr Anderson's witness statement before disclosing it. On 16 December Dr Barber confirmed his diagnosis of lung cancer and the part played by asbestos in causing it.
11. Julie Hurst contacted Mr Howell on 18 December to inform him that Mr Anderson had gone into a hospice and was near the end of his life. Dr Barber's supplementary medical report in early January 2010 said that Mr Anderson could not be expected to live beyond Spring 2010. In fact Mr Anderson died on 24 January 2010. Again Julie Hurst telephoned Mr Howell's secretary with the information and also told her that there would be a post mortem. That was conducted on 29 January. On an examination of Mr Anderson's lungs and pleura, the consultant histopathologist found lung cancer in the right lung. The cause of death was identified as lung cancer and coronary heart disease. There was no mention of asbestosis.
12. Mr Howell had written to Mr Anderson's widow on 28 January, informing her that the claim now needed to be pursued by the executor and asking if the coroner was involved. Keogh's letter to Mr Howell on 19 February, chasing up to date medical records and the witness statement, went unanswered. A further letter of 23 March led Mr Howell to inform Keoghs that Mr Anderson had died. That, he said, explained the delay in replying. Keoghs immediately wrote to enquire whether there would be an inquest into Mr Anderson's death.
13. In a supplementary report dated 27 May 2010 Dr Barber reviewed the post-mortem report. He concluded that no confidence could be placed in the pathologist's report because it had not addressed the clear evidence of asbestosis during Mr Anderson's life. No attempt had been made on autopsy to confirm that diagnosis either microscopically or histologically. Dr Barber commented that the fact remained that Mr Anderson undoubtedly had asbestosis.
14. Mr Peter Deary was the expert instructed by Mr Howell to calculate the asbestos dose Mr Anderson had sustained. In his report of 5 June 2010, Mr Deary cautioned about the paucity of evidence, since there were no available results from sampling asbestos dust, and because the exposure went back over 50 years. Working from Mr Anderson's statement, Mr Deary calculated that Mr Anderson's asbestos dose from 1945 to 1961 was 100 fibres/ml-weeks. He then assumed that the ICI work in removing asbestos lagging from pipes occupied half a day a week, over the 13 years from 1961-1974, yielding an exposure period of 312 days and a calculation of 3120 fibres/ml-weeks.
15. It was not until August 2010 that Keoghs were informed of the post mortem findings. The claim was issued on 11 October 2010. The defence was served a month later. In late December 2010 Keoghs applied on behalf of the appellant to strike out the claim as an abuse of process.

Strike out application and the Master's decision

16. As formulated by Mr Rawlinson QC for the hearing before the Master, the basis of the strike out application was that there was a substantial risk that a fair trial was no longer possible and thus the claim constituted an abuse of process. The acts complained of were those of Mr Anderson's legal advisers. They were four fold: first, they delayed serving Mr Anderson's witness statement until after he died; secondly, they did not serve Dr Barber's report in a timely manner; thirdly, they failed to inform the appellant about the date of the inquest; and fourthly, they took no steps to ensure the preservation of histopathological samples by the coroner's pathologist: para [11] of the Master's judgment.
17. The appellant's submission was that on the legal authorities, when persons with lung cancer claimed compensation for asbestosis they had to prove that an exposure to asbestos had more than doubled the existing risk of developing lung cancer: cf. Sienkiewicz v Greif (UK) Ltd; Willmore v Knowsley Metropolitan Borough Council [2011] UKSC 10; [2011] 2 AC 229. That could be done in various ways. First, a claimant could show the presence of asbestosis. In this case Dr Barber diagnosed asbestosis but the pathologist did not report fibrosis. Since no samples were secured the appellant had lost a potential defence that there was none. Secondly, a claimant could establish a sufficient fibre base or number of asbestos bodies within a fixed volume of lung tissue. In this case the possibility of excluding non asbestos related fibrosis was lost because there were no samples enabling the appellant to conduct its own histopathological review to check for fibres or bodies. Thirdly, a claimant could advance a history of sufficient exposure to asbestos which could be corroborated by an expert. In this case Mr Anderson's witness statement was necessarily impressionistic. As to Mr Deary's expert report, not only did it post-date Mr Anderson's death, it also contained a number of errors, for example, assuming that Mr Anderson had been at ICI for 13 years. By not disclosing Mr Anderson's witness statement before his death, the appellant was deprived of the opportunity of questioning Mr Anderson in writing or on commission.
18. Thus the appellant's submission was that it was being asked to accept the uncorroborated version of exposure advanced by Mr Anderson before his death without the ability to cross examine him. They were also being asked to accept the estimate given by Mr Deary of how many fibre years exposure Mr Anderson underwent even though this assessment contained a guess (half a day a week) as to how long one job took. There was no evidence of that in the witness statement and Mr Anderson's solicitors never asked him to clarify. The appellant simply had to accept that Mr Anderson exhibited fibrosis, as referred to by Dr Barber. Yet Dr Barber's report was obtained in breach of the Pre-Action Protocol for Disease and Illness Claims in that no option was given to the appellant to consider the joint instruction of an expert. Fibrosis had not been investigated at the post mortem. In terms of the legal tests the appellant had simply to assume that there was a sufficiently high fibre count so as to more than double the risk. The claimant's solicitors ignored repeated requests for witness evidence and chose to keep the appellant in the dark about first, the imminence of Mr Anderson's death, secondly, his death, thirdly, the post mortem and fourthly, the failure to obtain samples at the post mortem.
19. In response to these submissions the Master reviewed the legal authorities and then stated what he understood to be the test for a strike out:

"10 The basic principle is that in order to be able to apply the sanction of strike out, I have to find, first of all, that there was conduct amounting to abuse of process and secondly in addition, that there is a substantial risk that there cannot be a fair trial and that the trial would be unsatisfactory. I then have to decide whether the only appropriate sanction is the striking out of the claimant's statement of case."

The Master then isolated what he thought were the two major points in the case. First, nothing was done by Mr Howell after he found out in August 2009 that this was not a mild asbestos case, but an asbestos induced lung cancer case, to ensure that better evidence was taken from Mr Anderson as to his exposure. Nor was the appellant put in a position to obtain that information from Mr Anderson because at no time was Mr Howell keeping himself up to date with Mr Anderson's state of health. In addition, Mr Howell was not passing on any such information to the appellant. It knew nothing more than that Mr Anderson had been diagnosed with lung cancer. The appellant was not told of Mr Anderson's death or that there was to be a post mortem so that the coroner could be requested to take lung samples for histopathological examination. Mr Howell also failed to inform the coroner of the need for samples, by alerting the family that this was a potential asbestos induced lung cancer case.

20. The Master then turned to the facts. Mr Anderson's accepted exposure to asbestos in breach of duty and that his medical notes, and the diagnosis of asbestos, should have been available to the Coroner's pathologist: [18]-[19]. In the judgment of the Master, in accordance with the relevant rules and guidance that should have led to tissue samples being kept by the pathologist: [19]. However, there was a clear diagnosis of asbestosis by the hospital, which was confirmed by Dr Barber: [22]. As to the coroner's pathologist not discovering fibrosis, the Master thought it was questionable that any regard had been paid to Mr Anderson's medical records, given the recorded history of asbestos exposure and the diagnosis of asbestosis recorded in them: [25]. In the Master's judgment the appellant had not sufficiently taken on board that at the time of the lung cancer diagnosis there had been a firm diagnosis of asbestosis and a substantial exposure to asbestos dust in his employment. If a person was diagnosed with lung cancer, that was ipso facto taken to be caused to the extent necessary to recover damages in law from the asbestos exposure: [26]. Whatever Mr Howell did or did not do there was never any real prospect of the appellant persuading the Master, on the balance of probability, that Mr Anderson did not have asbestosis and that therefore his lung cancer was not asbestos related. "The diagnosis of asbestosis was firm and persuasive and the history was one of substantial exposure in well known circumstances and for good measure the deceased also exhibited pleural plaques": [28].
21. The Master considered what the appellant had submitted were Mr Howell's failures. At the outset he rejected the submission that any of the alleged failures meant there was a substantial risk that there could not be a fair trial: [28]. What Mr Howell conceded in cross-examination was of no assistance. Even if Mr Howell had fallen short there was no real prospect of the appellant showing that Mr Anderson did not suffer from asbestosis and that there was a substantial risk of a fair trial not being possible: [29]. As to the alleged flaws on Mr Howell's part, the Master first considered the pathologist's not retaining lung tissue samples. Mr Howell could not be faulted in failing to anticipate that, given the medical records and the duty on pathologists under rule 9(1) of the Coroners Rules 1984 to preserve material which in their opinion bear on the causes of death. If the appellant had been informed of the impending post-mortem it was a matter of debate whether its legal representatives would have written to the coroner. "I would have though it likely that they would have anticipated that the coroner's pathologist would do his job": [31].
22. As to, secondly, Mr Howell's failure to forward Mr Anderson's witness statement once his death was known to be imminent, the Master concluded that that should have been done. However, that was to enable the appellant to make the inquiries it thought appropriate and did not necessarily bear on the possibility of a fair trial: [32]. Mr Howell could have been criticised if he had not forwarded the medical report on lung cancer if the appellant had requested it, but that was not what had happened: [33].

The appellant's case

23. In advancing the appellant's case before me Mr Rawlinson QC submitted that the Master had applied the wrong legal test. He asked whether the conduct of Mr Anderson's solicitor amounted to an abuse of the process of the court as a separate and anterior question to considering whether such an abuse created a substantial risk of an unfair trial. The correct test was to consider whether, in all the circumstances, the conduct complained of amounted to an abuse because it created the substantial risk of an unfair trial. Having set himself the wrong test, Mr Rawlinson QC continued, the Master had failed to make any clear finding as to whether there had been conduct amounting to an abuse. Rather, he simply dismissed the appellant's application because the conduct complained of neither constituted a breach of rule or other order, nor created prejudice to the appellant.
24. In Mr Rawlinson QC's submission the Master further erred because he found the absence of abuse using the logical progression: first, the lung cancer would be deemed to have been caused by asbestos exposure if asbestosis was present in Mr Anderson's lungs prior to death (a point with which the appellant agreed).; secondly, asbestosis was diagnosed in the lungs prior to death; and thirdly, that diagnosis was unassailable and hence there could never have been a defence to this claim. In fact, submitted Mr Rawlinson QC, the diagnosis of asbestosis in life was properly disputable. The conduct complained of caused prejudice to the appellant in that it prevented it from properly investigating that diagnosis. Thus the finding that the diagnosis was unassailable, if true, arose only as a direct result of the prejudice caused by the conduct about which the appellant complained.
25. Mr Rawlinson QC contended the Master made no formal determination whether Mr Anderson's case was in breach of the rules or whether it needed to be in order for the strike out to be ordered. In fact there was no need for any breach of a rule to be proven for the matter to stand struck out if a substantial risk to a fair trial was created. In any event the Master failed to give adequate consideration to the breaches of the Pre-Action Protocol for Disease and Illness Claims and the practice direction controlling asbestos related cancers (CPR 3D), which places a duty on defendants to act with celerity and which thereby creates concomitant duties of openness on the part of a claimant. Having terminated his analysis upon the finding of no prejudice accruing to the appellant, the Master failed to exercise his judicial discretion in considering whether or not the abuse of process merited striking out the claim. Thus he failed properly to hold that the prejudice created could not be remedied otherwise than by striking out the claim.
26. In Mr Rawlinson QC's submission, the Master wrongly made no reference to the many clear concessions obtained from Mr Howell in cross-examination. For example, Mr Howell accepted that he knew by August 2009 that Mr Anderson had been diagnosed with lung cancer but did nothing to contact the family until they informed him that Mr Anderson had been removed to a hospice. This failure arose from his assumption that lung cancers were relatively indolent cancers notwithstanding that he had in his possession medical records which showed that from September Mr Anderson was being reported as being very restricted in what he could do. It meant that it changed the way Mr Howell gathered evidence from what he would have done if he had been aware of Mr Anderson's deteriorating health. Mr Howell accepted that he would have obtained fuller evidence from Mr Anderson as to the level of exposure to dust. That in turn would have permitted an expert to seek to carry out a qualitative assessment of exposure during Mr Anderson's life. In cross-examination Mr Howell was asked about awaiting counsel's response before disclosing the witness statement to the appellant. Because counsel had not been told of the urgency the witness statement was available to be shown to the appellant only after Mr Anderson's death. That robbed the appellant of the chance to cross-examine Mr Anderson prior to his death.

Counsel: "… Had you been aware that this lung cancer was in fact close to killing your client you would have dealt with this as if it were Mesothelioma wouldn't you?"

Mr Howell: "Yes."

27. When told that his client was close to death on 18 December 2009 Mr Howell did not explain to the family the need for post mortem samples to be taken. In failing to do this, he robbed the appellant of the opportunity to ask the coroner whether samples were being retained. Equally the appellant was not told about the imminent death or shown Dr Barber's report and so was not able to ask the coroner directly to keep samples. In cross-examination Mr Howell accepted that the witness statements should have been disclosed prior to death. Had he done so the appellant would have referred it to an expert, who would have posed questions relevant to determining quantitative exposure level.
28. The Master made no express determination as to whether these matters raised had been proved and were capable of constituting prima facie grounds for considering striking out of the claim. Instead, submitted Mr Rawlinson QC, the Master seemed to have considered it to be a complete answer to the application that there had been, in life, a diagnosis of asbestosis. The appellant had not failed to take on board the diagnosis of asbestosis made during Mr Anderson's life but repeatedly attacked it. The pathologist had not noted fibrosis post mortem and thus it was possible that it did not exist. Had the appellant been informed that Mr Anderson had died they would have sought to ensure the retention of lung samples. Both the hospital diagnosis and Dr Barber's conclusion were reliant on Mr Anderson's own account of his exposure and there was no reason to accept that it was correct. The Master stated that the asbestosis was confirmed by biopsy, but that was not correct. The Master's reference to pleural plaques was off beam because plaques can be caused by very small exposures to asbestos dust. Thus they cannot have constituted evidence of a certain level of exposure to asbestos capable of causing lung cancer. It was wholly wrong for the Master to conclude since Mr Anderson had been diagnosed "firmly" with asbestosis there could be no prejudice arising out of the solicitor's failures.

No abuse of process affecting fair trial

29. The power to strike out is contained in CPR 3.4(2).

"The court may strike out a statement of case if it appears to the court

…

(b) that the statement of case is an abuse of courts process or is otherwise likely to obstruct the just disposal of the proceedings.

(c) that there has been a failure to comply with a rule, practice direction or court order."

The court's inherent jurisdiction is preserved by CPR 3.4(5).

30. In Logicrose v Southend United FC (1988) Times LR 5^th March, Millett J dealt with an application to strike out because a document was not given on disclosure when it should have been disclosed. That could have been punished as contempt of court. The relevant document was disclosed as a result of the threat of a striking out. Millett J held that conduct amounted to an abuse of the process of the court "which would render any further proceedings unsatisfactory and prevent the court from doing justice." Before the court took that serious step it needed to be satisfied that there was a real risk of that happening. In that case Millett J held that, the document having been disclosed, a fair trial was possible.
31. Millett J's observations were adopted in Arrow Nominees Inc v Blackledge [2001] BCC 59; [2002] BCLC 167. There shareholders of a company presented a petition under section 459 of the Companies Act 1985 complaining of unfairly prejudicial conduct of its affairs by the majority shareholder. One of the minority shareholders, Arrow Nominees, was controlled by a person who, on disclosure, revealed certain documents he had forged. The majority shareholder applied to strike out the petition as an abuse of process. The judge refused the application. During the trial it was shown that other documents had been forged. The judge refused a further application to strike out. The Court of Appeal allowed the appeal on this point. It held that the judge ought not to have allowed the trial to continue. Chadwick LJ said:

"[54] But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled – indeed, I would hold bound – to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke."

32. Both Logicrose and Arrow Nominees make clear that if a court is to strike out for an abuse of process under CPR 3.4 (2)(b) there has to be an abuse of the court's processes such as to render any further proceedings unsatisfactory or to prevent the court from doing justice between the parties. The threshold is high for striking out under this head. Even if the court finds that there is an abuse of process it might exercise its discretion and adopt a less draconian course than striking out the claim since a fair trial is still possible. It is in that sense that I read what Mr Rawlinson QC criticised as the two stage test adopted by the Master. There might be a use of the court's process "for a purpose or in a way significantly different from its ordinary and proper use", as Lord Bingham CJ characterised abuse of process in Attorney General v Baker [2000] 1 FLR 759, but it must place the fairness of the trial in jeopardy for there to be a striking out. The threshold seems even higher for using the court's inherent power to strike out for an abuse of process: cf. Raja v Van Hoogstraten (No 9) [2008] EWCA Civ 1444; [2009] 1 WLR 1143.
33. Mr Rawlinson QC criticised the Master's focus on whether there was a breach of any rule or practice direction in the conduct of Mr Anderson's case. The Practice Direction on Pre-Action Conduct requires that unless the circumstances make it inappropriate, before starting proceedings parties should exchange sufficient information about the matter to allow them to understand each other's position and to make informed decisions about settlement and how to proceed (para 6). Paragraph 7 provides that before starting proceedings the claimant should set out the details of the matter in writing by sending a letter before claim to the defendant, and the defendant should give a full written response within a reasonable period. The Pre-Action Protocol for Disease and Illness Claims requires the claimant's letter before claim to include a clear summary of the facts on which the claim is based. The defendant must then provide a reasoned answer within 90 days. There is Practice Direction 3D for Mesothelioma claims but this is not relevant to cases such as Mr Anderson's. (Thus Mr Howell's answer in cross-examination about what he would have done if the case had been Mesothelioma, quoted earlier, takes the appellant's case no further).
34. In Mr Anderson's case there was the detailed pre-action protocol letter on 21 April 2009 marked "Urgent-Asbestos Related Disease Claim". It contained information drawn from Mr Anderson's witness statement and information about Mr Anderson's other employment, as well as the allegations and the intention to obtain an expert medical report. It complied with paragraph 6 of the Pre-Action Conduct Practice Direction and the Pre-Action Protocol for Disease and Illness. The response to that from Zurich on 16 May 2009 did not reach Mr Howell. In any event it hardly complied with the requirements in the rules in terms of the response but simply requested information already given. Despite Mr Howell's chasing letters in October 2009, Zurich's next letter was in April 2010. Solicitors had become involved by November 2009 but they never provided a full response to the 21 April letter although they requested a copy of the witness statement.
35. That the Master addressed the issue of a breach of the rules cannot be said, as Mr Rawlinson QC submitted, to have set himself on the wrong path. It was background to the appellant's arguments about the prejudice caused to it. The fact is that the 21 April 2009 letter set out Mr Anderson's case in considerable detail. If the other side had wanted clarification on any matters they could have requested it from that point. It will be recalled that Mr Howell's 9 October letter informed the appellant that it was a lung cancer case. The response was the request for the witness statement. All this places Mr Howell's behaviour in context when the appellant's representatives did not themselves comply as fully as they could have with the procedures.
36. To establish that there was an abuse of process within CPR 3.4 (2)(b), Mr Rawlinson QC raised the various issues about Mr Howell's behaviour before the Master. All the allegations against Mr Howell were traversed. His cross-examination added nothing of substance and the Master was entitled to ignore it. First, it was said, Mr Howell did not send Mr Anderson's witness statement. There was no requirement in any rule or practice direction for the disclosure of the statement. The Master wisely noted that when a claimant is terminally ill it is desirable to send the witness statement. Here Mr Howell instructed counsel to advise in relation to the adequacy of the statement before disclosing it, a reasonable approach in a case where the appellant had been given a detailed account of exposure to asbestos in April 2009 and the appellant had provided no response or query in relation to that account.
37. Then there were the various points made about the coroner and Mr Anderson's imminent death, such as the appellant employing an expert to calculate Mr Anderson's exposure to asbestos and examining Mr Anderson on commission about his exposure history. But Mr Anderson's exposure history was less important when there was the diagnosis of the treating doctors and Dr Barber's report. Moreover, there is an air of unreality in the submission that somehow the exposure history could be refined given that Mr Anderson's employment history went back to 1949. Mr Deary estimated a half day a week exposure, which seems reasonable in the circumstances.
38. As to the failure to ensure that histopathological samples were preserved during the post mortem, the Master dealt with this, rightly in my view, by concentrating on the omissions of the pathologist. Mr Howell could not be faulted for anticipating that, where asbestosis had been diagnosed in life and there was in the medical notes a well documented history of exposure to asbestos dust, the pathologist would retain appropriate lung tissue samples. The Master referred to the Coroners' Rules 1984. He also noted the guideline on autopsy procedure produced by the Royal College of Pathologists, which states that the pathologist performing the autopsy should ascertain the relevant medical history. Thus Mr Howell was not to be criticised for failing to write to the Coroner or alerting the appellant to do so. As the Master observed, it was a matter of debate whether the appellant would have written to the Coroner if informed of the impending post mortem. The Master pungently expressed the point in his observation that it was highly likely that the appellant would have assumed that the Coroner's pathologist would do his job. Indeed, in the witness statement of the appellant's solicitor there is no assertion that the appellant would have contacted the Coroner if notified of the impending post mortem. That to my mind confirms the Master's conclusion.
39. Finally, there was the Master's reasoning that in any event none of the complaints raised could prejudice a fair trial, because of the clear diagnosis of asbestosis in Mr Anderson's lifetime. In my view the Master was undoubtedly correct in this regard. Given that clear diagnosis there was no need to rely on Mr Anderson's exposure history or on any pathology samples. First, the multidisciplinary team for lung cancer at the Blackpool Victoria Hospital concluded in late March 2008 that, after examining Mr Anderson and conducting a chest x-ray and CT scan, his condition would fit asbestosis. The consultant advised him on 29 April that he had an asbestos related disease and that he could apply for compensation, hence Mr Anderson's instruction of Mr Howell. The only expert medical evidence before the Master was the report of Dr Barber, who interviewed and examined Mr Anderson and concluded (a) on the balance of probability that there was ample cumulative exposure to confer a risk of asbestos-related disease; (b) there was absolute certainty about interstitial lung fibrosis; (c) on the balance of probability he has asbestosis; and (d) if he had lung cancer the overwhelming probability was that it was also a consequence of his occupational asbestos exposure, along with smoking.
40. The appellant did not adduce any medical evidence to dispute Dr Barber's conclusions. In their June 2008 letter Zurich had not indicated any intention to have their own expert examine Mr Anderson, nor did the appellants once they knew it was a lung cancer case in late 2009. In these circumstances the Master was entitled to draw conclusions based on Dr Barber's evidence, consistent as they were with the views of the hospital doctors who had been treating Mr Anderson. The only other medical evidence was from the pathologist who carried out the post-mortem but, as Dr Barber opined, he does not appear to have considered the medical records and the diagnosis of asbestosis contained in them to investigate that as a cause of death. The Master's error in relation to the biopsy was immaterial to all this. His reference to pleural plaques was correct, if irrelevant.
41. In all the circumstances there was no abuse of process making a fair trial impossible. There was no error in the Master's conclusion to this effect. I dismiss the appeal.