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
		31/01/2018

Mr Justice Turner :

INTRODUCTION

1. The claimants in this action contend that, during the course of their employment in the steel industry, they were exposed to harmful fumes and dust and have suffered from one or more industrial diseases as a result. An application was made on their behalf to bring these claims within the procedural structure of a Group Litigation Order ("GLO") pursuant to CPR Part 19. This application was granted and subsequently approved by the President of the Queen's Bench Division on 20^th January 2017.
2. At a hearing before Senior Master Fontaine on 25^th November 2016, the issue arose as to what pathologies should be identified as falling within the scope of the GLO. The problem was that a number of the claimants were represented by Collins solicitors who took a different view to the tranche of claimants who were represented by Irwin Mitchell acting jointly with Hugh James. Collins solicitors argued that the GLO should cover not only a list of specified pathologies but also "all other malignant conditions". Irwin Mitchell and Hugh James took the view that only bladder cancer should be included in the list of conditions. I have read the transcript of those proceedings and note that Mr Weir QC, on behalf of the Irwin Mitchell and Hugh James cohort, made no secret of his discomfiture at the fact that the claimants were being forced to "air a certain amount of issues, which would ordinarily be best kept privy between claimants".
3. Suffice it to say that Mr Weir QC proceeded to present a united front with Mr Platt QC on behalf of the defendants on this issue and the Senior Master was, in my view rightly, pursuaded to include only bladder cancer as the additional malignancy to fall within the scope of the GLO.
4. Now, a little over a year later, the claimants have applied to vary the order of the Senior Master to remove the condition of bladder cancer from the list of pathologies to be covered by the GLO. This application is resisted by the defendants. The representations of counsel have been made in writing owing to difficulties in finding an early and suitable date upon which the court could hear oral submissions.

BACKGROUND

5. At the time the matter came before the Senior Master it was known that there was just one case in which a claimant, one Alan Perry, was seeking compensation for bladder cancer said to be attributable to his work. In support of the inclusion of bladder cancer in the GLO, counsel for the defendants contended that it was expedient for Mr Perry's claim to be dealt with as part of the group. He accepted that the case might not be selected as a lead case but argued that it would involve the consideration of a number of issues including exposure and respiratory protection. These submissions were adopted by the claimants.
6. In the aftermath of the decision of the Senior Master, the claimants have lost their appetite for pursuing any bladder cancer claims. In the adverts publishing the GLO there has been no reference to bladder cancer and Mr Perry remains the only claimant relying upon this condition.

THE GROUNDS FOR THE APPLICATION

7. The claimants point out that in Jones and Others v The Secretary of State for Energy and Climate Change, Coal Products Limited [2012] EWHC 2936 Swift J concluded that the claimants in that case, who had been exposed to dust and fumes during the course of their employment at the Phurnacite plant in South Wales, had not proved that the condition of bladder cancer was caused by such exposure.
8. In a witness statement made in support of this application, the claimants' solicitor somewhat coyly observes: "The Claimants' Lead Solicitors in this litigations have obtained expert evidence and taken Counsel's advice and (without waiving privilege in respect of either) the position is that neither Irwin Mitchel nor Hugh James contemplate pursuing claims for bladder cancer."
9. Little in the way of creative imagination would be required to take an educated guess at the broad thrust of counsel's advice.
10. It is argued on behalf of the claimants that if bladder cancer were not now removed from the list of pathologies included within the GLO then there would be potentially unfair costs consequences for the claimants suffering from diseases in respect of which the issue of causation may be less controversial.

THE GROUNDS OF OPPOSITION

11. The defendant resists this application contending that to remove bladder cancer from the scope of the GLO would be to expose it to the risk that bladder cancer claims could be brought against it in various courts around the country which would not be subject to the case management discipline of the GLO. Dealing with such claims would, it is said, give rise to disproportionate expenditure in terms of both time and money. The corresponding advantage to potential bladder cancer claimants is that they may well struggle to afford the expenditure which would be required to obtain the expert evidence which would be needed to establish relatively modest individual claims.
12. The defendant goes on to point out that for about 20 years Mr Perry worked at the Llanwern Steelworks in Newport which is where 21 of those claimants so far registered were also employed. The issues likely to arise within the GLO may well include, for example, consideration of what respiratory protective equipment ("RPE") was made available at that location and over what periods. Therefore, it is said, there are common or related issues to be considered within the GLO which are likely to be material to Mr Perry's claim and that the findings in respect of these ought to bind both him and the defendant. In a letter dated 17 November 2017, Mr Perry's solicitors, Simpson Millar LLP, have confirmed that they would have no objection to the making of an order excluding bladder cancer cases from the GLO. They do not, however, state that their client will agree to be bound by any findings in the GLO on generic issues such as exposure levels, irreducible minimum, knowledge or RPE.
13. Furthermore, the defendant contends that the potentially adverse costs consequences to claimants suffering from respiratory diseases are more apparent that real. No further bladder cancer claimants have emerged over the last year. The lead solicitors for the claimants are plainly unenthusiastic about promoting such claims and have not advertised for them. It is not in dispute that the screening process applied by the lead solicitors has been sufficiently rigorous to weed out a very substantial number of claims. It is possible, perhaps even likely, that no bladder cancer claim will ever find its way on the register. In that event, the feared additional costs to the other claimants will simply not be incurred. Even if one or more bladder cancer cases were to find their way onto the register, it is argued that the adverse costs consequences to the claimants would be relatively modest.
14. The defendant also relies on the submission that the court should be slow to permit a variation of the terms of an earlier order even in the exercise of the apparently broad discretion which is afforded to it by CPR r 3.1(7). Reference is made to the case of Tibbles v SIG plc [2012] 1 WLR 2591 in which the Court of Appeal held that considerations of finality, the undesirability of allowing litigants to have two bites at the cherry and the need to avoid undermining the concept of appeal all required a principled curtailment of an otherwise apparently open discretion. Thus the discretion under rule 3.1(7) might be appropriately exercised normally only (i) where there had been a material change of circumstances since the order had been made, (ii) where the facts on which the original decision had been made had been, innocently or otherwise, misstated or (iii) where there had been a manifest mistake on the part of the judge in the formulation of his order. The interest of justice in the finality of a court's orders was such that it ought normally to take something out of the ordinary to lead to the variation or revocation of an order under rule 3.1(7).

CONCLUSION

15. In all the circumstances, I am satisfied that this application ought to be refused. Mr Perry's claim, although relating uniquely to bladder cancer, gives rise to several issues which are likely to be common or closely related to those arising with respect to those suffering from respiratory diseases. The advantages of keeping his and any other bladder cancer claims within the GLO are clear. The potentially adverse costs consequences to the other claimants are too modest and speculative to counterbalance this consideration. I would add that this is the conclusion I would have reached in the exercise of my discretion even had it been unfettered by the constraints identified by the Court of Appeal in Tibbles.
16. The parties are agreed that it will, or may, be necessary for the court to give further directions consequent upon this adjudication and I invite an agreed draft order or, in default of agreement, written representations. I would indicate, without reaching a final conclusion, that I would be unlikely to accede to any application to vary the timetable for master pleadings. On matters as they presently stand, I predict that it would be unlikely that Mr Perry's case, even if he makes it onto the register will end up as a lead case.
17. Finally, I am satisfied that the defendant is entitled to the costs of resisting this application. I have received no representations from the claimants in respect of the level of such costs but give them seven days from the date of the handing down in this order to articulate in writing any basis upon which they would seek to challenge the defendant's assessment. In default of such a challenge or any agreement between the parties, I will award the full amount claimed in the defendant's statement of costs dated 15 January 2018.