This blog post is by Helen Waller. In it, she explains the recent decision of Mr Justice Turner, in which he allowed the Second Defendant’s appeal of a Master’s decision to enter judgment against it at a show cause hearing. An approved transcript of the ex tempore judgment is now available and it can be viewed here.
The show cause procedure is a feature of Practice Direction 3D which applies to mesothelioma claims. It is intended to identify at an early stage those cases in which a defendant has no reasonable prospect of maintaining a defence. Pursuant to paragraph 6.2 of the Practice Direction, at the first case management conference a defendant will be expected to show cause why a judgment on liability should not be entered against it.
It was this exercise of ‘showing cause’ that was the subject of an appeal before Mr Justice Turner in the case of Helm v (1) William Kenyon & Sons Ltd (2) Somewatch Ltd  EWHC 1108 (QB).
At a show cause hearing before Master Davison, judgment was entered against both Defendants to the claim. The Second Defendant appealed against this decision. The First Defendant did not.
Turner J allowed the Second Defendant’s appeal, primarily on the basis that the Master had made an “evident mistake” in relation to the Claimant’s exposure to asbestos dust from his use of Caposite.
The Claimant alleged that was he exposed to asbestos dust from Caposite in the course of his employment with the First Defendant, but it was not apparent on the face of his written evidence that he made the same allegation in relation to the Second Defendant. However, it was clear that the Master had assumed that the Claimant did allege exposure to Caposite with the Second Defendant and had relied on this assumed exposure when entering judgment against it. Further, it was not clear that Caposite was in use at the time the Claimant worked for the Second Defendant. This error alone was sufficient to justify the appeal being allowed.
Although this was an appeal which turned on its own facts, the observations Turner J made at in relation to the show cause process at - are of possible wider interest:
I appreciate that the rate at which the procedure under Practice Direction 3D identifies defendants who have no real prospects of success is in the region of 95 percent. That, however, still leaves 1 in 20 in which the defendant has at least established a sufficiently strongly arguable case to escape the net. It is tempting, in cases in which there is only one defendant and only one potential employment when the claimant is exposed to asbestos, to work backwards from the established fact that mesothelioma, by and large, is overwhelmingly (not exclusively) caused by exposure to asbestos. So if there is only one defendant, then it equips the judge to say with relative confidence, all other things being equal, that there was exposure and that it is very likely, in those circumstances, that the claimant will establish liability.
In this case, however, there was exposure which the Master uncontroversially laid at the door of the first defendant which, in itself, was sufficient to provide an explanation, at least arguably, for the contracting by the claimant of the condition of mesothelioma. So this is not one of those cases in which working backwards a judge could be confident from the fact that mesothelioma was contracted that there was exposure during the course of the employment of both defendants.
For the Claimant in this case, the consequences of the appeal are likely to be limited to costs: he still has judgment against the First Defendant in respect of mesothelioma, which is an indivisible injury.