Cape Disclosure Documents: Appeal Allowed

The Court of Appeal today allowed Cape’s appeal against the judgment of Master McCloud in respect of the so-called Cape disclosure documents, setting aside the Master’s original Order. The Court of Appeal’s decision was reached on the basis that the Master did not have jurisdiction to allow inspection of many of the categories of documents that fell within the scope of the Order. 

Readers of this blog will recall that on 5 December 2017, Master McCloud determined that many of the documents referred to in the major asbestos product liability trial of Concept 70 & Others v Cape International Holdings Ltd (which took place over the course of several weeks at the start of 2017 before Picken J) could be made publicly available. Our post about that decision can be read here.

The Master refused permission to appeal. Cape applied to the High Court for permission, which was granted by Martin Spencer J, who ordered  that the appeal be heard by the Court of Appeal, pursuant to CPR 52.23 in view of the importance of the issues raised.

The hearing before the Court of Appeal took place on 18 and 19 June, and judgment was handed down today.

We will write a detailed post in due course, but for the moment, the key passages of the decision are extracted below. They are taken from the lead judgment of Lord Justice Hamblen. The full decision can be read here.

112. I would accordingly summarise the current position on the authorities as follows:

(1) There is no inherent jurisdiction to allow non-parties inspection of:

(i) trial bundles;

(ii) documents which have referred to in skeleton arguments/written submissions, witness statements, experts’ reports or in open court simply on the basis that they have been so referred to.

(2) There is inherent jurisdiction to allow non-parties inspection of:

(i) Witness statements of witnesses, including experts, whose evidence stands as evidence in chief and which would have been available for inspection during the course of the trial under CPR 32.13.

(ii) Documents in relation to which confidentiality has been lost under CPR 31.22 and which are read out in open court; which the judge is invited to read in open court; which the judge is specifically invited to read outside court, or which it is clear or stated that the judge has read.

(iii) Skeleton arguments/written submissions or similar advocate’s documents read by the court provided that there is an effective public hearing in which the documents are deployed.

(iv) Any specific document or documents which it is necessary for a non-party to inspect in order to meet the principle of open justice.

113. The court may order that copies be provided of documents which there is a right to inspect, but that will ordinarily be on the non-party undertaking to pay reasonable copying costs, consistently with CPR 31.15(c). There may also be additional compliance costs which the non-party should bear, particularly if there has been intervening delay.

114. In the light of my conclusion on inherent jurisdiction it follows that the Master had no jurisdiction to allow inspection of a number of the categories of documents identified in the Order. The documents for which it is likely that there was jurisdiction are the witness statements (but not exhibits), expert reports and written submissions and skeleton arguments. It may also be that there is jurisdiction to allow inspection of a number of the documents relied on at trial, but not on the generalised basis set out in the Order.

Asbestos Contaminated Talc

This post was written by Aliyah Akram.

In the latest in a series of claims against Johnson & Johnson in the US a St Louis jury has ordered that the pharmaceutical company pay a total $4.69 billion to 22 women who have suffered ovarian cancer as a result of using J&J’s asbestos contaminated talcum powder.  The award against both J&J and a subsidiary includes compensatory damages of $550 million and punitive damages of $4.14 billion.

The plaintiffs’ lead attorney, Mark Lanier, argued that J&J had known that their ‘Baby Powder’ and ‘Shower to Shower’ products contained asbestos since at least the 1970s but had failed to disclose this to the FDA, the federal agency responsible for protecting public health in the US.  Expert evidence proved that asbestos fibres entered the body when talcum powder was inhaled or applied.  Asbestos fibres were then found in the ovarian tissue of many of the women.

Another 9,000 cases are currently being pursued where it is alleged that asbestos contaminated talc has caused either ovarian cancer or mesothelioma.  Unsurprisingly Johnson & Johnson have made it clear that they plan to appeal this judgment.