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
		12th August 2014

Andrew Edis QC sitting as a Deputy High Court Judge:

1. The Claimant claims damages for his contraction of pleural mesothelioma. The case raises a novel point, which may be addressed in a number of ways, and which will presumably arise again. Simply stated, the issue is whether the Claimant can maintain an action against three of the companies which employed him during a long career when he was exposed to asbestos by many employers, having already brought proceedings against 8 of the other employers which were settled in 2003, the "First Action." These Defendants say that they would have joined in that settlement had they been sued at the time, and would therefore have had a complete defence to these proceedings, namely compromise. They also advance other claims to have been prejudiced by delay of a more familiar kind.
2. Each Defendant relies on a limitation defence. In addition, the First Defendant has pleaded an estoppel and the Third Defendant has pleaded estoppel and abuse of process. The Second Defendant has only pleaded a limitation defence. It is accepted that despite these differences of pleading, the issues which I have to determine are the same in each case. They were defined and ordered to be tried as preliminary issues by an Order made by Master McCloud on 9 June 2014. The issues to be tried under that Order are:

(i) whether the present proceedings are an abuse of the process of the Court;

(ii) whether the Claimant is estopped from bringing the present proceedings;

(iii) whether the present proceedings are barred by the provisions of the Limitation Act 1980.

3. The Claimant has served a witness statement by him, and another by his present solicitor, Mr. Johnson. I have also considered the statement which he made in the First Action. I did not hear oral evidence. In the case of the Claimant, that was because he is not well, and no-one wished to cross-examine him. His evidence is of limited relevance to the issues which I have to resolve. Mr. Johnson was not cross-examined but I heard submissions about the sufficiency of his evidence on certain significant matters. The court was supplied with 5 bundles of documents. I indicated that pre-reading of all that material had been impossible and that I was going to decide the case on the basis of the written material which was drawn to my attention during the hearing or in the Skeleton Arguments. Documents which were not drawn to my attention by these means are not, so far as I am concerned, part of the evidence merely because they appear in a Bundle but have not been mentioned by anyone. Counsel accepted this approach and I heard conspicuously careful and helpful submissions on behalf of all 4 parties.
4. Records show that the Claimant was employed by the First Defendant as a labourer in the tax year 1963/64. He was working at the Shell Stanlow Oil Refinery. The records show that he was employed by the Second Defendant as a labourer in the years 1965/66, 1966/67, 1967/68, 1968/69 and 1972/73. During these periods of employment he was working at the Stanlow Oil Refinery and the Burmah Oil Refinery in Ellesmere Port. Finally, according to the records, he was employed by the Third Defendant. He worked for them as a rigger at the Shell Star in Ellesmere Port. During each of these periods of employment the Claimant alleges that he had heavy exposure to asbestos dust particularly during the removal of lagging, and from processes involving the application of lagging. The records also show that the Claimant was employed by a number of other employers at different times, including seven of the eight Defendants whom he joined in the First Action. The eighth, Platt and Company, which was the Third Defendant in the First Action, was wrongly joined and therefore the compromise was reached in 2003 between the Claimant and seven of his former employers. These were Prescott (No 1) Limited, VSEL Birkenhead Limited, Reppac Pipes Limited, Cape Darlington Insulation, Sulzer (UK) Limited, Spousal (Midlands) Limited and Amec PLC. He did not join the three Defendants to the present proceedings in the First Action for reasons which I will deal with below.

THE FIRST ACTION

5. It is common ground that in June 1998 the Claimant was diagnosed as suffering from asbestosis and pleural plaques. In December 1998 he instructed John Pickering & Partners (now part of Slater & Gordon who represent him in these proceedings) to bring a claim for damages in respect of his asbestos induced injury. At the time of the First Action, the only symptomatic injury from which he suffered was asbestosis. The Particulars of Claim in the First Action contained these paragraphs:-

"5 By reason of the matters aforesaid, the Claimant has suffered pain and injury, loss and damage.

PARTICULARS OF INJURY

The Claimant, who was born on 9^th January 1935, has bilateral calcified pleural plaques. He has developed asbestos-related pulmonary fibrosis (asbestosis). He is 15 to 20% disabled. His condition is deteriorating and his life expectancy reduced. Further, worry arising from the diagnosis of asbestosis and from the deaths of friends from that condition has caused him to develop depressions and to abuse alcohol. The prognosis is guarded.

6 Further the Claimant claims provisional damages pursuant to Section 51 of the County Courts Act 1984, there being a chance that at some future time in his life he will develop a serious disease or condition, namely a 10% risk of malignant mesothelioma of the pleura; a 5% risk of cancer of the lung; and a 1% risk of diffuse pleural thickening."

6. The First Action commenced in March 2001. A report was obtained on behalf of the Claimant from Mr Peter Deary, a Consulting Engineer with great experience of asbestos disease litigation. The seven defendants against whom the First Action was pursued were responsible, on Mr Deary's assessment, for about 60% of the total asbestos exposure. This contains details of the Claimant's allegations against the companies he called "Charles Kenyon", "BECA", and "Greenfield & Payne", among others, and assessment of the dosage of asbestos to which the Claimant was exposed in each relevant employment. He advised that the First Defendant in these proceedings was responsible for 4% of the total dose, the Second Defendant for 17%, and the Third Defendant for 4%. On this evidence, liability against each of these three companies was established, subject to an argument about the date of culpable knowledge of the First Defendant, whose exposure pre-dated 1965 when an important report was published. None of them was, however, sued.
7. In the First Action medical evidence was obtained on behalf of the Claimant from Dr Warburton, a Consultant Chest Physician and the defendants obtained medical evidence from Dr Hind, who is also a Consultant Chest Physician. They produced a Joint Statement and agreed that the Claimant was suffering from asbestosis causing a disability of 10 to 15% (Dr Warburton) or 10% (Dr Hind). They further agreed there was a risk of the Claimant developing other types of asbestos related injury including mesothelioma. The Claimant had also suffered a depressive illness and evidence was obtained from Consultant Psychiatrists whose Joint Statement is at B5/2628.
8. On 28 April 2003 the Claimant obtained a Judgment against the seven defendants in the sum of £26,000. It is accepted that this was in full and final settlement of his claim against those defendants. The settlement appears to have been reached at court because the order was made by Mr. Recorder Berkley QC sitting at Birkenhead. The Order of the Liverpool County Court says (I have set it out as it appears).

"Upon hearing Counsel for both parties.

IT IS ORDERED THAT

1. Judgment for Claimant against Defendants in the sum of £26,000 inclusive of interest and net of CRU benefits.

2. Defendants shall pay Claimants costs to be the subject of detailed assessment and standard basis of not agreed."

9. This is actually therefore a judgment, and not only a compromise. It is not possible to say definitively how the lump sum award was agreed, but it is clear that the claim for provisional damages was not pursued. Had it been, these proceedings would have been unnecessary. No doubt some element of the £26,000 was intended to compensate the Claimant for the low risk of developing the very serious condition which has, sadly, now occurred. The element designed to compensate for asbestosis will have been intended to be 60% of the total value of the claim for that element, because that was the extent of the exposure by the seven Defendants who were contributing to the settlement. The 6^th Edition of the Judicial Studies Board Guidelines for the Assessment of General Damages published in 2002 at page 21 offers a bracket of £25,000 to £55,000 for asbestosis, and says

"Respiratory disability of between 10 and 20% will probably attract an award in the region of £40,000".

10. 60% of £40,000 is £24,000. 4% is £1,600 and 17% is £6,800. On this very rough and ready basis, it may be that if the present Defendants had been sued in the First Action, the Claimant would have gained an additional £10,000. By way of comparison, the contribution of the seven defendants to the First Action varied between 20% and 1%. Of all the culpable employers, the Second Defendant to these proceedings was responsible for the second largest share. 4 of the seven original Defendants were responsible for less than 10% of the total exposure. The Sixth Defendant was only responsible for 1% of the total exposure, or, on this basis, £400. Two employers, responsible between them for 8% of the exposure, were not sued in the First Action and have not been sued in this action either.

SOME LEGAL BACKGROUND

11. It is not necessary for the purposes of this judgment to review extensively the series of cases which have addressed the particular problems presented by asbestos exposure, but some principles should be stated by way of explanation of the conduct of the First Action and, now, these proceedings.
12. Asbestosis is a divisible injury in the sense that the injury varies in severity depending on the extent of exposure. In Holtby v Brigham & Cowan (Hull) Limited [2000] ICR 1086, the Court of Appeal held that in an asbestosis case a defendant was only liable for that part of the injury attributable to the tortious exposure for which that defendant was responsible. Further, that the burden of proving what part of the injury was caused by a particular defendant lay on the claimant. In these circumstances, it is incumbent on a claimant to trace all the previous employers responsible for his asbestos exposure and, given that many such employers are no longer viable companies, to trace their insurers during each relevant period of employment. This is the exercise of which Mr. Johnson speaks in his statement, as carried out in 1998-2002 during the First Action, by his predecessor Mr. Walsh.
13. Mesothelioma is not a divisible injury. It may be caused by a single fibre, although the risk is increased by exposure. It cannot therefore be proved in the cases of each employer that the exposure for which it was responsible caused the condition. It can only be shown that, to the extent of that exposure, that employer increased the risk. In Fairchild v. Glenhaven Funeral Services Limited [2003] 1 AC 32 the House of Lords held that there was a special rule of causation to be applied in cases of this kind, in which it was necessary to prove that a defendant increased the risk of the development of mesothelioma in order to recover in full against that defendant for the consequences. As between employers, the liability would be apportioned, but the Claimant is entitled to recover in full against all of them. This statement states the law as it is now, after the statutory reversal by the Compensation Act 2006 of the decision of the House of Lords in Barker v. Corus UK Ltd [2006] 2 AC 572.
14. In Durham v. BAI (Run Off) Limited [2012] 1 WLR 867, the Trigger litigation, the Supreme Court at paragraph 26 summarised the position as far as date of culpable knowledge as follows, per Lord Mance JSC:-

Well before 1948, there was general awareness of the existence of long-tail diseases which would only develop and manifest themselves after considerable periods of years (see para 12 above, and see also Cartledge v E Jopling & Sons Ltd [1963] AC 758). The connection between asbestos exposure and mesothelioma became generally known in the mid-1960s, following the publication in 1965 of Newhouse and Thompson's report on Mesothelioma of pleura and peritoneum following exposure to asbestos in the London area and a Sunday Times article.

15. In the same case, the Supreme Court considered the nature of the mesothelioma claim against multiple defendants in order to decide whether insurers were liable to meet such claims given the wording of some of the policies if the exposure occurred while they were on risk, but the mesothelioma manifested itself after they ceased to be so. Lord Mance JSC said

64. These citations all suggest that it is both possible and appropriate to characterise the position achieved by the common law after Barker as one concerned with the issue of the "causal requirements" or "causal link", as between the defendant's conduct and the disease, which the common law requires in order for there to be an action "for mesothelioma". But analysis of the rule arrived at after Fairchild and Barker justifies further propositions. Despite the apparent clarity of the suggested distinction between liability for a risk and for a disease, no cause of action at all exists unless and until mesothelioma actually develops. Neither the exposure to asbestos nor the risk that this may one day lead to mesothelioma or some other disease is by itself an injury giving rise to any cause of action: see Rothwell v Chemical & Insulating Co Ltd [2008] AC281; the House there decided that not even the emergence of pleural plaques "marking" the past exposure to asbestos constituted injury for the purpose of giving a cause of action. In order to fall within the principle in Fairchild and Barker, the development of mesothelioma is a precondition: see Barker 2006] 2 AC 572, para 48, per Lord Hoffmann and para 53, per Lord Scott. Baroness Hale went further, at para 120, stressing that she in fact agreed with Lord Rodger's view that "the damage which is the 'gist' of these actions is the mesothelioma and its physical and financial consequences. It is not the risk of contracting mesothelioma".

65. In reality, it is impossible, or at least inaccurate, to speak of the cause of action recognised in Fairchild and Barker as being simply "for the risk created by exposing" someone to asbestos. If it were simply for that risk, then the risk would be the injury; damages would be recoverable for every exposure, without proof by the claimant of any (other) injury at all. That is emphatically not the law: see Rothwell and the statements in Barker itself, cited above. The cause of action exists because the defendant has previously exposed the victim to asbestos, because that exposure may have led to the mesothelioma, not because it did, and because mesothelioma has been suffered by the victim. As to the exposure, all that can be said (leaving aside the remote possibility that mesothelioma may develop idiopathically) is that some exposure to asbestos by someone, something or some event led to the mesothelioma. In the present state of scientific knowledge and understanding, there is nothing that enables one to know or suggest that the risk to which the defendant exposed the victim actually materialised. What materialised was at most a risk of the same kind to which someone, who may or may not have been the defendant, or something or some event had exposed the victim. The actual development of mesothelioma is an essential element of the cause of action. In ordinary language, the cause of action is "for" or "in respect of" the mesothelioma, and in ordinary language a defendant who exposes a victim of mesothelioma to asbestos is, under the rule in Fairchild and Barker, held responsible "for" and "in respect of" both that exposure and the mesothelioma.

66. This legal responsibility may be described in various ways. For reasons already indicated, it is over-simple to describe it as being for the risk. Another way is to view a defendant responsible under the rule as an "insurer", but that too is hardly a natural description of a liability which is firmly based on traditional conceptions of tort liability as rooted in fault. A third way is to view it as responsibility for the mesothelioma, based on a "weak" or "broad" view of the "causal requirements" or "causal link" appropriate in the particular context to ground liability for the mesothelioma. This third way is entirely natural. It was adopted by Lords Reid and Wilberforce in McGhee v National Coal Board [1973] 1 WLR 1, by Lord Hoffmann, Baroness Hale and (possibly) Lord Walker in Barker v Corus UK Ltd [2006] 2 AC 572 and by Lord Hoffmann in his extra-judicial commentary. It seems to have received the perhaps instinctive endorsement of a number of members of this court, including myself, in Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229. Ultimately, there is no magic about concepts such as causation or causal requirements, wherever they appear. They have the meanings assigned to them and understood in ordinary usage in their context. A logician might disagree with a reference to causation or a causal link in a particular context, but that is not the test of meaning: see Lord Wilberforce's words in McGhee, at p 6C—F (cited in para 56 above).

16. This emphasises the difference between the cause of action for asbestosis and that for mesothelioma. It is common ground that once some physical disease is proved, an action will lie for any other consequences of the exposure whether they have manifested themselves or not. A provisional damages award may be made, or a lump sum awarded calibrated to the size of the award which would be made if the condition had developed, and discounted to reflect the chance that it will not.

WHY WERE THESE DEFENDANTS NOT SUED IN THE FIRST ACTION?

17. The Claimant, Mr Dowdall, had many separate periods of employment when he was exposed to asbestos. Mr Johnson, his current solicitor, explains in his statement that extensive enquiries and investigations were undertaken to trace employers and their insurers. 49 separate company searches were undertaken. Mr Johnson explains that in the light of the 'Holtby' apportionment exercise a balance has to be struck between the need to sue every tortfeasor so as to maximise recovery and considerations of cost, proportionality and time.
18. The Claimant had instructed solicitors (John Pickering) within four months of being diagnosed as suffering from asbestosis. His present solicitors, Slater & Gordon, are successors to the practice of John Pickering. Those solicitors were provided with a list of employers of the Claimant from HMRC, and another list supplied by the DSS to other solicitors in earlier proceedings. It appears that the Claimant had retained the DSS list and John Pickering obtained the HMRC list. The list had been incorrectly compiled and identified the wrong company as the employer in 1963/64. The information available to the solicitors in the First Action therefore came from three sources:-

a. A letter from the Department of Social Security in 1990 retained by the Claimant from earlier proceedings for vibration white finger in which Kenyons were identified as "Charles Kenyon & Sons Limited".

b. An Employment Schedule obtained in the First Action from HMRC which names the company as "Charles Kenyon".

c. The Claimant's witness statement of April 2000 in the First Action referred to the First Defendant as "Charles Kenyon & Sons Limited", but I expect this name was derived from the DSS letter of 1990 rather than any recollection of his. It is however known that he did remember that they were based in Dukinfield, which suggests he remembered their name but he probably knew them as "Kenyons". There is no evidence that John Pickering discovered the fact that they were based in Dukinfield during the First Action, but they only had to ask for any further information which the Claimant could provide. Mr. Johnson did this in the course of these proceedings and the Claimant told him.

19. The first search on Charles Kenyon & Sons Limited is dated 9.12.98 and says "We have been unable to trace any registration of the above named". It does not suggest that the company no longer exists, but rather that it has never existed. Since the search was on the name given wrongly by the DSS in proceedings which the Claimant had brought for vibration white finger in 1990 which the Claimant had kept, this would alert the solicitor to the possibility that the name supplied was wrong.
20. John Pickering did not simply let the matter drop when they were told that there was no trace of Charles Kenyon and Sons Limited. A further search on 28^th February 2001 revealed that a company of this name had existed, but had changed its name to Walter Spencer & Company Limited in 1972 (after the Claimant's relevant period of employment). It was wound up and dissolved on 8^th December 1987. It appears to have been based in Yorkshire. John Pickering wrote to the liquidators on 2^nd March 2001 but obtained no useful information, and sent five enquiry forms to the Association of British Insurers (ABI) one of which, I conclude, related to Charles Kenyon & Sons. There is no evidence of any reply from the ABI.
21. When Mr Johnson sought a similar list in November 2013 the list provided again referred to the employer in 1963/64 as being Charles Kenyon. However, the evidence reveals that Mr Johnson in discussion with the Claimant ascertained that this employer was based in Dukinfield. Mr Johnson knew from previous claims that William Kenyon & Sons Limited was based in Dukinfield and he made further enquiries of the HMRC. This revealed the error, which was corrected. When the corrected list was provided in January 2014 the identity of the First Defendant was established. In these circumstances the Claimant contends that he only had knowledge in relation to the First Defendant in January 2014. The First Defendant contends that the gaps in the evidence of Mr. Johnson mean that the court simply does not know what steps were actually taken in 1998-2002. The point is made on behalf of the First Defendant that there is no evidence at all from the Claimant or the solicitors who acted for him in the First Action to explain why John Pickering could not have identified the First Defendant then by similar means to those used by Mr. Johnson recently. The First Defendant, unlike the Second and Third Defendants, is still in business. The Claimant knew that he had worked at Stanlow Oil Refinery, which is also still in business, and I do not know if Mr. Walsh of John Pickering tried ringing the Refinery to see if they could give him the name of the company with the word "Kenyon" in its name which worked there in the 1960s. I do not know whether he asked the Claimant where that company was based in which case a search of the Yellow Pages for Dukinfield may have revealed the answer.
22. Both the Second and Third Defendants are dissolved companies. The Second Defendant was dissolved in 1982. The Third Defendant was dissolved in 1987. At the time of the First Action employers' liability insurers were not identified for the Second and Third Defendants. Mr Johnson explains that at the time when the Claimant first instructed John Pickering & Partners in December 1998, there was no scheme in place for the purpose of tracing employers' liability cover in respect of defunct employers. A voluntary code was introduced in November 1999 but this had limited success. In 2008 a protocol was introduced for the tracing of Employer's Liability policies. In April 2011 the Employers' Liability Tracing Office ('ELTO') was established. The system for tracing Employer's Liability cover has gradually improved. Mr Johnson was eventually successful in establishing the identity of insurers for the Second and Third Defendants during the relevant periods of employment. The point is made that the exact process by which he did this is not clearly identified in his evidence. He says of these Defendants, in paragraphs 16 and 17

"…..As a result of other claims that we have dealt with I was able to trace the insurance history of both companies. We had dealt with previous claims against BECA (Engineers) Limited and I wrote to the Prudential Insirance Company on the 23^rd December 2013 setting out my understanding of their cover history. ….

"17. The position with the Third Defendant was that I was already aware of some periods of Employers Liability cover as a result of an ongoing asbestosis claim that I was dealing with against them. I also obtained two successful ELTO responses which confirmed that Excess Insurance Company Limited were on risk from the 30^th November 1977 to 30^th November 1978 and that Allianz Insurance plc were on risk from the 1^st January 1978."

23. Letters were written to the persons named as directors of the Third Defendant in 1999, but no response appears to have been received. The Second and Third Defendants also featured on the enquiry forms sent to the ABI in February 2001.
24. Mr Johnson makes the following points:

a. In paragraph 11 he says: "The companies that were not sued were defunct employers with respect to whom it had not been possible to trace employer liability insurance cover". He goes on to say "Given all of the factors identified above with regards to the complexity of employment history, difficulties in identifying Defendants, difficulties in tracing insurance coverage, etc. I do not believe that this decision to pursue the eight Defendants in the asbestosis claim was in any way unreasonable." The First Defendant makes the point that this statement is inaccurate in relation to it. It is not defunct and all that was required was to identify its true name and its employer's liability cover would immediately have been discovered. It is true that the Second and Third Defendant were defunct before the investigations prior to the First Action began.

b. In paragraph 12 Mr. Johnson says, after reviewing the historic problems in identifying the insurers for defunct companies in 1998/2003, "Essentially, unless you had a tortfeasor that was live and had retained insurance records or that you had pursued in previous claims and established cover, the prospect of identifying cover for a defunct employer was poor.

c. In paragraph 18 Mr. Johnson says:-

"Therefore, to summarise the position we were able to trace and establish cover for the three Defendants in this claim as result of a mixture of clarification of employment records from HMRC, a history of previous claims that we had dealt with and the improved service in tracing coverage provided by the Employers Liability Tracing Office. I hope that this goes some way in explaining and clarifying the reasons why it was not possible to pursue these Defendants in the original proceedings."

25. On the basis of this material, I conclude that the First Defendant would have been joined to the First Action if John Pickering had discovered its true name. The Second and Third Defendants would have been joined if it had been possible to identify the relevant insurers.
26. I consider that the risk that the name of the First Defendant was wrongly named should have been apparent between 1998 and 2001 when the information on the company search was that there was no trace of the company Charles Kenyon and Sons Limited. On 28^th February 2001 Charles Kenyon and Sons Limited was discovered and found to have changed its name and to have been dissolved. The First Action was issued on 6^th March 2001 and that entity (which had never employed the Claimant) was not joined. Therefore, the reason why the First Defendant was not joined to those proceedings was that the Claimant and his solicitors after making enquiries did not know the identity of the company which had actually employed him. I shall have to consider below whether they ought to have done better for the purposes of the date of knowledge for the Limitation Act 1980.
27. The reason why the Second and Third Defendants were not joined to the First Action is that the then solicitors believed that they were unlikely to be able to discover the identity of the relevant insurers. I accept the evidence of Mr. Johnson for the broad proposition that it would not be sensible for solicitors in those days to delay the issuing of proceedings while carrying out expensive and probably unsuccessful enquiries. I am not persuaded that John Pickering actually did everything which could have been done because I accept the submissions made on behalf of the Defendants that the absence of direct evidence from file notes and other contemporaneous documents hampers the making of any such finding. The Claimant simply says twice in his witness statement in these proceedings that he was "unable" to sue these defendants in the First Action. No solicitor who actually had conduct of the First Action has given any direct evidence about what was done. I accept, however, that whatever was done (some of which I have set out above) did not reveal the true identity of the First Defendant and the insurance cover details of the Second and Third Defendants.

ABUSE OF PROCESS AND ESTOPPEL

28. The Claimant contends that the settlement of claims against separate tortfeasors for separate damage cannot extinguish causes of action against the present tortfeasors. The present Defendants made no contribution towards the earlier settlement. Insofar as the Claimant has a cause of action against the present Defendants he is entitled to pursue that cause of action.
29. There are some factual differences between the different cases, which are principally material to the limitation issue. The present arguments are advanced in slightly different terms by the Defendants, but can be summarised as follows

a. It is also suggested that these proceedings are an abuse of process, because they could and should have been brought in 1998.

b. It is suggested that the settlement of the First Action in 2003 extinguishes the cause of action. The First Defendant relies on Jameson and another v. Central Electricity Generating Board [2000] 1 AC 455, with rather greater emphasis than the Second and Third Defendants.

c. The First Defendant also seeks to rely on cause of action estoppel.

ABUSE OF PROCESS

30. The principles relied upon derive from Henderson v Henderson (1843) 3 Hare 100 as explained/developed in Johnson v Gore-Wood (No 1) [2002] AC 1 (HL), in which case Lord Bingham said at Paragraph 31, with emphasis added by me:

"But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.

"I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether on given facts abuse is to be found or not.

Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy to its descent, the rule has in my view a valuable part to play in protecting the interests of justice."

31. Lord Bingham does not in that passage contemplate a case where the first set of proceedings did not involve the Defendants being "vexed" in the second action. However, there was an argument in that case that the rule could not apply because the Plaintiff in the second case had not been the Plaintiff in the first action. As Lord Millett observed at page 60A-C

The rule in Henderson v Henderson 3 Hare 100 cannot sensibly be extended to the case where the defendants are different. There is then no question of double vexation. It may be reasonable and sensible for a plaintiff to proceed against A first, if that is a relatively simple claim, in order to use the proceeds to finance a more complex claim against B……

32. The dictum of Lord Millett cited above, was considered by the Court of Appeal in Dexter Ltd (In Administrative Receivership) v (1) Clive Vlieland-Boddy (2) Michael Fortune (3) Fortune Peat (A Firm) (4) Edwina Amethyst Harley (5) Wensley Grosvenor Haydon-Baillie [2003] EWCA Civ 14, at paragraph 32. It was pointed out that it went beyond what was approved by the majority, and Peter Gibson LJ said that, for that reason, "I say no more about it". Clarke LJ, as he then was, set out the general principles to be adopted in cases of this kind at paragraphs 49-51:-

49. The principles to be derived from the authorities, of which by far the most important is Johnson v. Gore Wood & Co [2002] 2 AC 1, can be summarised as follows:-

i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.

ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C.

iii) The burden of establishing abuse of process is on B or C or as the case may be.

iv) It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.

v) The question in every case is whether, applying a broad merits based approach, A's conduct is in all the circumstances an abuse of process.

vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C.

50. Proposition (ii) above seems to me to be of importance because it is one thing to say that A should bring all his claims against B in one action, whereas it is quite another thing to say that he should bring all his claims against B and C (let alone against B, C, D, E, F, and G) in one action. There may be many entirely legitimate reasons for a claimant deciding to bring an action against B first and, only later (and if necessary) against others.

….

52. It seems to me that the courts should be astute to ensure that it is only in a case where C can establish oppression or an abuse of process that a later action against C should be struck out. I could not help wondering whether the defendants in this case would have given their lawyers the same instructions on the question whether they should have been sued in the first action if they had been asked before that action began as they have given now that a later action has begun."

33. It is not material to this argument that the original claim was brought to a conclusion by settlement rather than judgment: see Aldi Stores Ltd v (1) WSP Group Plc (2) WSP London Ltd (3) Aspinwall & Co Ltd [2007] EWCA Civ 1260.
34. The oppression relied upon was most clearly identified by Mr. Morton in his closing submissions on behalf of the Third Defendant in which he made it clear that the only oppression was financial oppression. Given that these are insurance companies "oppression" is an odd word to describe their having to meet claims valued in accordance with the law. I have set out some of the relevant facts at paragraph 10 above. What it amounts to is as follows:-

a. If these Defendants had been sued in the First Action, they would have settled. They may have paid between them an additional £10,000 or so. They could not then have been sued in these proceedings.

b. The Defendants are now exposed to the very much larger claim now advanced. The present claim is valued by the Claimant at £185,543.49.

c. If the Claimant had not chosen to abandon his provisional damages claim, the original Defendants may have sought a contribution from these three defendants towards the much larger claim but that liability would have been shared 10 ways, rather than 3 ways. In order to secure that contribution now, the Defendants will have to issue contribution proceedings which have an uncertain prospect of success.

d. If the Claimant had been able to join these Defendants in the First Action there would have been an automatic right to have the liability apportioned between them. Again, any proceedings to secure that outcome now would be uncertain.

35. CONCLUSION ON ABUSE. I consider that it would be wrong to hold that these proceedings are an abuse of the process of the court. This is because

a. These Defendants were not parties to the First Action. This means that they were not "vexed" in it. This is not decisive as a matter of law, but is a factor of considerable weight. This is highly relevant to the Jameson issue, and to the limitation defence, but seems to me to weaken greatly the abuse argument. In short, the failure to sue these Defendants in the First Action is better evaluated in those contexts.

b. I do not think that there is any evidence at all that the Claimant has manipulated the process of the Court with the intention of "having his cake and eating it". He has not deliberately secured a lump sum for the risk of mesothelioma deliberately omitting these Defendants from those proceedings so that he could sue them later if the risk came to pass. That conduct may well be capable of amounting to an abuse.

c. The reason for my conclusion at (b) above, and a separate factor supporting my conclusion, is that I have accepted that the decision not to sue these Defendants was honestly made and was made because in each case the Claimant and his solicitors had been unable to discover an insurer liable to meet the claim against them. This is a reasonable and not an abusive decision making process. I have been unable to hold that they had done all that was possible to discover this information for the reasons given above, but this is not a matter relevant to abuse, although it will be to limitation.

36. CAUSE OF ACTION ESTOPPEL. I will deal with this argument quickly because it was advanced somewhat tentatively. I do not think there can be a cause of action estoppel where the parties to the litigation are not the same. This is slightly different from the next issue to which I will now turn.

THE EFFECT OF THE 2003 SETTLEMENT: JAMESON

37. In Jameson v Central Electricity Generating Board [2000] 1 AC 455 and Heaton v AXA Equity & Law Life Assurance Society plc [2002] 2 AC 329 the House of Lords decided that where there are concurrent tortfeasors a settlement against one will not extinguish the claim against the other unless there has been full satisfaction of the entire claim. The application of this principle to the present case requires an analysis of the nature of the liabilities involved. My review of the authorities on asbestos cases above is relevant to this exercise.
38. The First Action was for damages for asbestosis, depression and the risk of the development of three further different conditions also caused by asbestos exposure. The employers were not concurrent tortfeasors in relation to the asbestosis and depression, but may have been in relation to the risks. The settlement resolved all those claims against the original defendants.
39. The First Defendant submits that on a true analysis of the 2003 settlement all causes of action have been satisfied, and extinguished. He submits that the First Action did include a claim for mesothelioma. That was an indivisible claim and he has settled his claim for it.
40. Jameson v CEGB is, at first sight, supportive of the First Defendant's argument. Mr. Jameson had settled a claim against his employer for mesothelioma a few days before his death. The settlement agreement was a little more elaborate than the one with which I am concerned. It was a Tomlin Order which provided that the payment was in full and final settlement of all the causes of action in respect of which the plaintiff claimed in the statement of claim. He died before the payment was made. His widow then issued proceedings against CEGB who had not been a party to the action brought by her husband against his employer. The Claimant did not have to give credit for the sum she had received as a result of the First Action, because of the Fatal Accidents Act 1976. The CEGB could seek a contribution to its liability from the employer, even though the employer had settled its liability with the Claimant in full. The House of Lords held that this seemed unjust to the employer. The employer and the CEGB were treated as concurrent tortfeasors, but the Claimant would have received a double benefit to the extent of the value of the First Action. The House of Lords held that on a true construction of the terms of the settlement with the employer, it extinguished claims against any other tortfeasors who may have been concurrently liable for the same cause of action. Lord Hope said at page 469B-D

..the dispute which has arisen in this case concerns the effect of the settlement of an action for damages for personal injury where the injured party has sued only one of two or more tortfeasors who by their separate acts have caused the same damage. In such circumstances each tortfeasor is liable to the injured party jointly and severally with the other tortfeasors for the whole amount of his loss.

41. That decision was further explained and distinguished in Heaton v AXA Equity & Law Life Assurance Society plc [2002] 2 AC 329, which was a case in contract. Lord Bingham at paragraph 9 emphasised that the principal focus in a case concerning the impact of a settlement between A and B on any claim which A may against C was on the terms of the compromise agreement of the claim between A and B. He then lists a series of factors which are to be born in mind when construing the agreement. Among these is the limited extent to which a party to a contract can bestow benefits on a party who is not privy to the contract. In the result, their Lordships held that in fact the compromise in that case did not extinguish or exhaust the claims. The argument that it did therefore failed on the facts. Lord Bingham said in Heaton at 335:

While it is just that A should be precluded from recovering substantial damages against C in a case where he has accepted a sum representing the full measure of his estimated loss, it is unjust that A should be so precluded where he has not.

At paragraph 6 of Heaton Lord Bingham said this:-

The majority decision of the House in Jameson v. Central Electricity Generating Board [2000] 1 AC 455 appears to have been understood by some as laying down a rule of law that A, having accepted and received a sum from B in full and final settlement of his claims against B in tort, is thereafter precluded from pursuing against C any claim which formed part of his claim against B. I do not think that my noble and learned friend Lord Hope of Craighead, in giving the opinion of the majority of the House is to be so understood.

And at paragraph 9, this

There was clearly room for more than one view, as the division of judicial opinion in Jameson showed, whether the sum accepted in settlement by A was to be taken as representing the full measure of his loss, but if it did the conclusion followed: A could not have proved damage, an essential ingredient, in his action against C, and that was fatal to the widow's Fatal Accidents Act claim against C.

42. In Jameson at page 476 Lord Hope indicates that a judge in a concurrent tortfeasor case should not conduct an enquiry such as that which was decisive in Heaton. He explains how the assessment should be made of whether the settlement sum is to be taken as representing the full measure of his loss.
43. The argument of the Claimant in the present case is that the First Action was not for the same damage because the asbestosis which was its basis was a divisible loss. Each contributor to the exposure was liable separately for his own exposure, to be decided on evidence such as that of Mr. Deary to which I have referred above. Therefore, they were not concurrent tortfeasors and necessarily the Claimant has not been compensated for the loss caused by these Defendants. That is true for any claim he may have wished to bring for their contribution to the asbestosis, but he has not brought any such claim. This claim is for "malignant mesothelioma of the pleura" and anxiety caused by the diagnosis.
44. The thing that creates a difficulty in this case is the existence of the claim for damages in the First Action for risk of mesothelioma. It is suggested that this claim is different because it is a claim for mesothelioma, and not the risk of mesothelioma. It is suggested that the risk of mesothelioma is contributed to by each tortfeasor in proportion to the exposure, whereas the claim for mesothelioma is an indivisible claim. It is submitted that it is not possible to extinguish a claim for an indivisible injury by settling a claim for a divisible injury, because the loss is not the same.
45. It is for this reason that I have set out the passages from the Trigger litigation at paragraph 15 above. It is quite clear from them that the action for damages for mesothelioma is not conceptually the same as an action for the risk of mesothelioma. However, the case did not consider the situation which I have to deal with. In this case two features are important. First, physical symptoms from exposure to asbestos had in fact developed, namely asbestosis. This meant that an action for the risk of mesothelioma could be maintained, and was maintained. Secondly, the action did make a claim for provisional damages which would have led to full compensation in the present circumstances if the Claimant had pursued it, and if he had succeeded. I know of no reason why he would not have succeeded if he had pursued it. This is a more nuanced situation than the stark contrast made by Lord Mance JSC in the Trigger litigation between (a) the risk of mesothelioma (no cause of action); and (b) an action for mesothelioma maintainable under the Fairchild principle (cause of action accrues only when mesothelioma develops).
46. The existence of the claim for a remedy in the event of the development of mesothelioma in the First Action is apparent from the type of enquiry which Lord Hope in Jameson at page 476 permits the Judge to undertake. I am therefore not prevented from considering whether the result of the First Action is that the Claimant was fully compensated for the damage for which he now sues. This is essentially the question I have to resolve. It seems to me that the issue is that stated by Lord Bingham in Heaton in his explanation of Jameson which I set out above. This requires an examination of the settlement of the First Action and the pleadings in both claims. It does not involve an assessment of the size of the settlement to determine whether the settlement was well-advised or not. I am not therefore permitted to examine whether the Claimant received £24,000 being 60% of the value of his asbestosis claim and an additional £2,000 being the value of the risk of mesothelioma and the other conditions referred to in the Particulars of Claim in the First Action. If I did, and concluded that this was the position, I might conclude that £2,000 to buy off a 10% chance of a claim worth £185,000 was not a very good settlement. However, I do not have the evidence to address this, and Lord Hope forbids this exercise.
47. The Defendants submit that the First Action, by claiming provisional damages, did afford the Claimant a complete remedy for his mesothelioma if and when it ever developed. The mechanism for that is the provisional damages claim and it is clear from the Order of the Court at the time of the settlement that it was intended not to pursue that claim. Whether that was a good settlement or not involves precisely the kind of enquiry which Lord Hope forbids. It must have been intended that the settlement would include a lump sum designed to compensate the Claimant for the risk of mesothelioma. Whether it did, or did so sufficiently, is something which I cannot determine. I conclude that in settling the claim as he did, the Claimant plainly intended to extinguish his rights in relation to future mesothelioma against all the employers whom he had decided were worth suing.
48. The argument I set out at paragraph 47 above has an attraction, but in the end I conclude that it is wrong. If I ask myself Lord Bingham's question: has the Claimant accepted a sum which was intended to represent the full measure of his estimated loss? The answer is clearly not. The Claimant elected to accept a sum for the risk of mesothelioma and in return decided not to seek an order permitting him to return to court in the event that mesothelioma actually developed. The settlement deliberately excluded any sum which would follow from the development of the condition. It cannot therefore be said that it included such a sum. To adopt the other way that Lord Bingham framed the issue: can the Claimant prove that he has suffered loss as a result of the allegedly tortious conduct of these Defendants? The answer is yes. He has suffered a condition which developed after the First Action settled and for which he has not been compensated.
49. This does mean that the Defendants to these proceedings will no doubt attempt to secure a contribution from the original seven Defendants who thought that they had settled their liability in relation to this claim. This raises obvious issues which will be best resolved in those proceedings if they are brought.

LIMITATION

DATE OF KNOWLEDGE ISSUE: FIRST DEFENDANT

50. For the purposes of the present action the Claimant accepts he had knowledge within the meaning of Section 14(1)(a) of the Limitation Act 1980 that he had suffered a significant injury by reason of exposure to asbestos dust when he was diagnosed as suffering from asbestosis in June 1998. He also knew that he had been exposed to substantial amounts of asbestos dust and that no precautions had been taken to protect him from such exposure. He therefore had knowledge within the meaning of Section 14(1)(b) of the 1980 Act in June 1998 at least as far as the Second and Third Defendants are concerned. The claims against them are statute barred, subject to section 33.
51. Section 14(1)(c) refers to the date on which a claimant first had knowledge of the identity of the defendant. This governs the question of the Claimant's date of knowledge in the case of the First Defendant. The Claimant knew the company that employed him in 1963/64 was called Kenyons but did not know the full name. I have set out my findings of fact in relation to this above.
52. Section 14(3) of the 1980 Act provides:

"For the purposes of this section a person's knowledge includes knowledge which he might reasonably be expected to acquire –

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."

53. CONCLUSION

a. The Claimant has known at all times that he was employed by a company called Kenyons which worked at Stanlow Oil Refinery and which was based in Dukinfield. This information was enough in 2012 to result in the identification of the First Defendant despite the mistake about the name of the employer given by HMRC.

b. I note that there has been no waiver of privilege in the contemporaneous files which may show what exactly was done in 1998-2003. This means that there is limited direct evidence on which I could confidently find that the Claimant, through his solicitors, could not reasonably be expected to find out the true identity of the company he knew as "Kenyons". The First Defendant is entitled to say that it still exists and that at all material times has been based at Dukinfield.

c. I note also the point made on behalf of the Claimant that the First Defendant is regularly sued and as far as is known has not denied liability yet. In 1998-2003 litigation for asbestos induced disease brought by laggers was common, and I have not been told anything which would enable me to say that this known track record only became apparent at some time after the First Action. It appears to me quite likely that actions against the First Defendant have been in progress for some years and, if that is so, there was information available to specialist disease solicitors which would lead them to a correct identification of the First Defendant. Given that the Claimant has elected to proceed by way of evidence only from his present solicitor, and that there is no evidence from those who actually had conduct of the First Action, this gap in the evidence is a result of a decision taken on his behalf. It appears to me that I cannot find on this state of the evidence that he was unable to ascertain the correct name of the First Defendant at the time of the First Action by taking reasonable steps.

d. In these circumstances I find that his date of knowledge in relation to the First Defendant was 12 months after June 1998 to allow a period of time to make necessary enquiries. The claim against the First Defendant is therefore statute barred, and the next issue is whether to direct that the claim may proceed under section 33 of the 1980 Act.

APPLICATION BY CLAIMANT FOR RELIEF UNDER SECTION 33 OF THE 1980 ACT

54. Section 33(1) of the 1980 Act provides that the

(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

(a) the provisions of section 11 [or 11A] or 12 of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

55. Section 33(3) provides:

(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—

a. the length of, and the reasons for, the delay on the part of the plaintiff

b. the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 …

c. the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

d. the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

e. the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

f. the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

56. I shall set out a brief summary of authority in relation to section 33.

a. When the Court is considering whether it is equitable to allow the case to proceed it must consider "all the circumstances of the case" - s.33(3) and see A v Hoare [2008] UKHL 6).

b. When considering prejudice the Court is to focus on evidential prejudice (see Cain v Francis [2008] EWCA Civ 1451). This authority is relied upon by the Claimant. The mere exposure of a Defendant to a claim which it ought to meet is not prejudice (see again Cain v Francis).

c. Once a claim is begun out of time, a Defendant can refer to and rely on all the prejudice suffered by reason of the delay, and is not restricted to that occurring only in the period by which the proceedings were out of time (see the old case of Donovan v Gwentoys HL [1990] 1WLR 472 and more recently McDonnell v Walker [2009] EWCA Civ 1257 and Collins v Sec of State [2014] EWCA Civ 717).

d. The overall merits of a claim are relevant – i.e. a weak or uncertain claim is less likely to be allowed to continue (see cases including AB v Nugent Care Society [2009] EWCA Civ 827).

e. The value of the claim, in combination with its merits, is also relevant under a test of proportionality – i.e. a weak claim of low value is even less likely to be allowed through (see Robinson v St Helens [2002] EWCA Civ 1099) cited with approval in Adams v Bracknell Forest [2004] UKHL 29). A claim of low value which will be expensive to take to trial is less likely to be allowed through: see Collins v Sec of State.

f. The Court should find that any delay must inevitably have caused prejudice to a Defendant by the passage of time and the dimming of witness recollections (see e.g. Price v United Engineering Steels 1998 PIQR).

g. Sayers v Lord Chelwood [2012] EWCA Civ 1715 is a helpful case on the exercise of the s.33 discretion. Although declining to state that s.33 was what the previous authorities had called "a heavy burden" upon the Claimant, the Court of Appeal nonetheless declined to extend time where a case was brought four years late, without good reason or explanation for the delay.

57. The Claimant makes the following submissions on which I shall comment as I list them:-

(a) Against each Defendant there is an overwhelming case on breach of duty. The employment with the First Defendants predated general knowledge about the risk of mesothelioma from relatively slight exposure to asbestos (Newhouse and Thompson 1965). However, there had been knowledge for many years before 1965 that substantial exposure to asbestos dust created a foreseeable risk of injury (see Jeromson v Shell Oil Limited [2001] EWCA Civ 101). Exposures with the Second and Third Defendants post-dated 1965 and again, were substantial exposures. None of the Defendants have any realistic prospect of defending a claim on breach of duty.

I agree with this submission, and have cited a passage from the Trigger litigation at paragraph 14 above to show why. The distinction between Defendants liable for exposure before 1965 and afterwards is not of great value to pre-1965 employers. For this reason it appears to me that the complaints of evidential prejudice advanced by the Defendants are of very limited significance. Their principal case is that if sued in 2001/03 they would have settled, which is hardly consistent with any real conviction that they could have defended the proceedings then. In reality, these cases are very hard to defend on exposure and the Claimant has been consistent in factual allegations about that subject, see his two witness statements.

(b) The position on breach of duty would have been no different if the Defendants had been made parties to the 2001 proceedings.

I agree with this.

(c) The Claimant relies on the circumstances set out in the statement of Mr Johnson as to the reasons why the Defendants were not sued in 2001. That is he seeks to rely on the enquiries made to justify the decision not to sue these Defendants then. This is relevant as the "reasons for the delay".

I have made findings about this above. I agree that the reason for not suing the Second and Third Defendants was genuine and that it was sensible to call a halt after reasonable steps had been taken to find insurers. As I have said, I am not able to say that everything was done which could have been done. The decision not to sue the First Defendant was based on an error and I am not satisfied that it could not have been detected and rectified. The contribution of these Defendants was 25% of the whole exposure between them, and that is a large enough claim to justify careful enquiries to identify them. I know of nothing further which the Claimant could have done to identify insurers of the Second and Third Defendants.

(d) The Claimant has suffered a grievous injury by reason of contracting mesothelioma. The medical evidence in respect of his condition is uncontroversial, and is explained by Dr Rudd. Each tortfeasor who has exposed the Claimant to asbestos dust and has thereby materially increased the risk of mesothelioma is liable for the injury (Fairchild v Glenhaven Funeral Services Limited [2003] 1AC 32, Barker v Corus UK Limited [2006] 2AC 572, Sienkiewicz v Grief UK Limited [2011] 2AC 229).

I accept that this is a claim for damages for a very serious injury indeed. I accept that the Claimant has an apparently good claim, and will suffer substantial prejudice if he is not allowed to proceed with it.

(e) The fact that if a Section 33 direction is made the Defendant will have to pay damages is not relevant as one of the circumstances to be taken into account (Cain v Francis [2008] EWCA Civ 1451 at paragraph 70). Whilst the burden is on a claimant to establish that a Section 33 direction should be made, the Court has an unfettered discretion whether to grant a direction (Horton v Sadler [2007] 1 AC 307). The basic question to ask is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits notwithstanding the delay in commencement. It is important to look at the effect of the delay, in particular on the Defendant's ability to defend (Cain v Francis, para 73). In the present case, the Defendants would have been in no better position to defend breach of duty if they had been parties to the original action.

This submission is at the heart of the dispute and I will deal with it separately below.

(f) If the Defendants had been parties to the original action their contribution to overall settlement would have been less than their liability in respect of the present claim but this financial prejudice is not a relevant factor (Cain v Francis). If the Claimant is not permitted to pursue this action he will suffer very serious prejudice.

This is the financial argument, slightly re-stated, which I will deal with at the conclusion of this judgment.

(g) The period of time which elapses between the breach of duty and a claimant acquiring knowledge under Section 14 of the 1980 Act (ie the commencement of the limitation period) is part of the circumstances of the case within the meaning of Section 33(3). However, it is a less important factor than the effect of delay after the commencement of the limitation period which is to be taken into account under Section 33(3)(b) (Collins v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 717).

I do not consider that the length of the delay is of any great importance in a case where the Defendants' prospects of defending the claim have never, at any stage, been good. The delay in suing the First Defendant after the start of the limitation period as I have determined it was very substantial indeed (14 years). However, given the nature of the case even this is not of great significance.

58. I do not consider that the delay has prejudiced these Defendants in their prospects of defending the claim. There may be some evidential prejudice but not of any great weight. I have considered the submissions made on that basis, but am unpersuaded by them.
59. The real question is whether the financial consequences to the Defendants of the Claimant's chosen procedure are relevant hardship for the purposes of section 33. In this area, the relevant authorities are Cain v Francis [2008] EWCA Civ 1451 at paragraph 70 and Horton v Sadler [2007] 1 AC 307. Until the latter decision it used to be thought that if the Claimant had issued proceedings in time but had discontinued them, section 33 did not arise, because he was prejudiced by his own conduct, and not by the Limitation Act 1980. It is now clear that the discretion does arise in such cases, although such conduct of the Claimant remains a relevant factor to be taken into consideration. Cain v Francis [2008] EWCA Civ 1451 at paragraph 70 provides as follows:-

"Thus, although on a literal construction of section 33(1), it appears to be relevant to the exercise of the discretion that the defendant would suffer the financial prejudice of having to pay the damages if the arbitrary time limit were to be disapplied, Parliament cannot have intended that that financial prejudice, as such, should be taken into account. That is because in fairness and justice, the defendant ought to pay the damages if, having had a fair opportunity to defend himself, he is found liable. If having to pay the damages is not a relevant prejudice under section 33(1), it cannot be relevant either as one of the circumstances of the case."

60. The Defendants submit that one particular (and unique) feature of prejudice in this case is that it is likely that, if the claim is allowed to continue against the current three defendants and they are found liable, they would between them have to bear the entirety of the damages award for mesothelioma. Because the Claimant compromised his claim against the original eight defendants on a full and final basis (each of them paying towards the additional sum to compromise the provisional damages award and to place an agreed financial value on the risk of the Claimant developing mesothelioma in the future) it is improbable that any of the current defendants will be able to obtain any contribution from them. It is submitted that if the current three defendants are required to meet this claim it would go behind the policy of the law that, because tortfeasors can obtain contribution from each other, it is fair to allow a mesothelioma claimant to be compensated in full by any single tortfeasor who was responsible for only even a small part of the exposure.

DISCUSSION: SECTION 33

61. It appears to me that Cain v. Francis does not address a case where the effect of the delay by the Claimant is to increase the damages which the Defendant has to pay. I have illustrated above the amount involved. In the case of the 4% contributors, the First and Third Defendants, they may have had to pay £1,600 and will now have to pay a proportion of £185,000. The Second Defendant would have been able to satisfy the demands of the Claimant with a payment of perhaps £6,800, but is now also exposed to a substantially greater liability.
62. The Claimant proceeded in the First Action in the way that he chose. He took a decision about how to address the risk of mesothelioma on expert advice. He thought then that he had compromised his possibility of full compensation in the event that he developed mesothelioma against those whom he thought he could sue. He was content to do so, and could quite well have pursued his claim for provisional damages.
63. It seems to me that I should take these factors into account in the exercise of my discretion and that I am not prevented from doing so by Cain v. Francis. I also consider the following matters

a. I agree with the Defendants' submissions that if they had been sued in 2001 they would have participated in the settlement in 2003 with the result that they would have acquired a complete defence to this claim, namely compromise.

b. I am not clear that the Defendants will be unable to secure a contribution from the other 7 Defendants. No doubt it will be submitted that such proceedings are an abuse of process, but the answer to that may be that a Defendant in those circumstances may protect itself by securing an enforceable undertaking from the Claimant that he will not issue proceedings against any other party if mesothelioma develops, or by securing an indemnity from the Claimant against any adverse consequences to the Defendant if any such proceedings are brought, see Heaton v. AXA Equity and Law Life Assurance Society plc [2002] 2 AC 329, at paragraph 9 per Lord Bingham. What I am prepared to accept is that there is a far greater risk to these Defendants of failing to secure a contribution than there would have been had they all been sued at the same time.

c. The Claimant on my finding could have sued the First Defendant in the First Action because it should not have been too difficult to find the proper Defendant from the information available. However, it would have been pointless to sue the Second and Third Defendants without identifying their insurers.

d. If I allow the claim to proceed against the Second and Third Defendants but not the First Defendant for the reasons given in the previous sub-paragraph, the effect will be that the claim will be met in full by the Second and Third Defendants. The Claimant would not be prejudiced by such a decision at all. However, there would be very little purpose in stopping the case against the First Defendant for this reason, because the Second and Third Defendants would be able to issue Part 20 Proceedings for a contribution from it. That being so, there is no real prejudice to the First Defendant in disapplying the limitation period if the Action is to proceed against the Second and Third Defendants.

64. CONCLUSION. I have balanced the factors which I have listed above. There are significant arguments in both directions. In the end, it seems to me that the principal consideration must be the fact that the Claimant has a substantial claim for a very serious injury. He has very good prospects of establishing that the Defendants contributed to the causation of the risk of that condition, and are liable for it by reason of the principle in Fairchild. I accept that witnesses will have died or become unavailable since 1998, in particular Mr. Bottome's father who was at some stage the Managing Director of the Second Defendant, has certainly died during that period. I am however unpersuaded that these witnesses would have afforded any viable defence to this claim. There is therefore no evidential prejudice sufficient to outweigh the undoubted prejudice to the Claimant should he lose his claim. The real argument is the financial one. I have taken this into account, and not declined to do so applying Cain v. Francis. However, I have concluded that the increased liability really follows from the development of mesothelioma. The fact that the Defendants might have had a chance to avoid paying for that by being joined in an action which settled before it developed really means that they have lost a chance of escaping without paying the Claimant the damages to which he is otherwise presumed to be entitled. Viewed this way, the financial consequences of what has occurred do not, in my judgment, justify preventing the Claimant from seeking the compensation for the harm which this very serious condition involves.
65. I therefore grant his application for relied under section 33 in respect of all three Defendants.