Patterson v Smith Dock Ltd & Anor

MR FENNY: The application of the defendants then is to seek permission to appeal to the House of Lords.

LORD JUSTICE KAY: Yes, we will deal with that because there is an application in each case, is there not?

MR FENNY: My Lord, the position is this. There is an application in Barker.

LORD JUSTICE KAY: Yes.

MR FENNY: The defendants' position is that they would wish to take one other case with it, either Patterson or Murray, and to put it quite simply they are not bothered which because they are almost identical cases. The reason they want to take a case with the Barker case is because, as my Lords no doubt have observed, the Barker case has certain twists and turns in it and in relation to the apportionment issue it was felt appropriate, if possible, to link a case which is very much a standard apportionment issue case --

LORD JUSTICE KAY: Yes I see.

MR FENNY: -- namely, a shipyard case where the only issue is whether the solvent company should pay 100% or whatever of their exposures, and also to give an indication as to what is the generality of this type of litigation as opposed to the unusual facts of Barker. As I understand it, my learned friends are not in agreement as to which one or other should go and therefore the defendants' position is entirely neutral: they are quite content to take either case or both cases.

LORD JUSTICE KAY: Anyway, we had better deal with those two matters before we consider an appeal in relation to them.

MR FENNY: The position in relation to those matters is that the defendants accept realistically that those appeals should be dismissed. They do not formally consent to the dismissal of those appeals in case that causes difficulty in the future, but they accept realistically that those appeals should be dismissed with orders for costs. I have not been told of any application for interim costs in either case, but if it was a modest sum sought I would find it difficult to resist, but I have not been asked, so those will be the orders made.

LORD JUSTICE KAY: We make those orders. Now we turn in each case to the question of whether you should get permission to appeal to the House of Lords.

MR FENNY: Yes, my Lords. No doubt my Lords are not wholly surprised by this application given the nature of the argument in the case and no doubt my Lords have given some consideration to it already, so I hope it can be quite brief.

Essentially it would not be anticipated where this court was unanimous and relied upon existing authority that they would necessarily give permission to appeal to the House of Lords. Having said that, there are unusual features of the Barker case and in relation to the apportionment argument which in my submission make it appropriate for permission to be granted. I hope I can deal with those briefly under three heads. The first is this. Undoubtedly the cases all raised issues which were in my respectful submission correctly identified by this court as issues of policy --

LORD JUSTICE KAY: Yes.

MR FENNY: -- where the law was not necessarily set in stone at this stage.

LORD JUSTICE KAY: No.

MR FENNY: And that in itself is a matter which might suggest that the House of Lords should consider it.

Secondly, it might be said, without being controversial, that in some way the Barker appeal and the following appeals represent unfinished business in the House of Lords and which might have been argued in the Fairchild case had the result of the Fairchild case been known in advance. The Lords anticipated, as my Lords have observed in the judgment, that there would probably be further authorities in relation to this issue. And given that this is now a developing area of law I would respectfully submit that in the early stages of that development it would be appropriate if the House of Lords reviewed their own decision in Fairchild and in particular how far it should be extended and in what way it should be applied, in particular in the context of the apportionment argument.

The third reason I rely upon is that this issue is simply not going to go away: Barker is not an exceptional case, neither are the other cases. We know from the demological evidence that tragically the condition mesothelioma will continue to occupy these courts for many years hence. The condition is anticipated to peak in incidence in the year 2020 and it is likely that there are significant continuing litigation in relation to such claims. Also the position of the defendants is not going to get any better: the issue identified by the defendants in the Barker case of a reducing number of solvent defendants and insurers having to deal in full with mesothelioma claims is an issue which is likely to get worse rather than better over a period of time.

LORD JUSTICE KAY: The only change there might be is in medical science.

MR FENNY: Yes.

LORD JUSTICE KAY: But we cannot work on the basis that that is likely.

MR FENNY: No, and one has to take into account the fact that, despite the best of medical science looking at the problem for a long period of time, there has been no significant progress made. Dr Rudd gave evidence in the Brice case in 1998, confirmed in Fairchild in 2001, that there has been no significant advance over that period of thirteen years. So that it is unlikely, with respect to the court, that there will be any significant advance in relation to the understanding of the principle.

Against that background I would respectfully submit that at some stage the House of Lords is going to be asked to consider this question for those reasons. If it is going to be asked to consider it at some stage it is better it is done sooner rather than later so that clarity can be given for the litigation in the years to come. That is my application.

LORD JUSTICE KAY: Thank you. Mr Allan, we have seen your written submissions, do you want to add to them in any way?

MR ALLAN: I do not. Your Lordship sees the point that leave is opposed for the reasons there set out; further that this court was of course unanimous on its view on these issues. If your Lordships were minded to give leave, it is said that it should be in Barker alone; that neither Patterson nor Murray add anything to the issues in Barker.

LORD JUSTICE KAY: Thank you. Mr Gore?

MR GORE: I have not had the opportunity of seeing the written submissions of my learned friend Mr Allan, but --

LORD JUSTICE KAY: They are predictable.

MR GORE: We have discussed matters over the telephone in anticipation of this issue this morning. For the same reasons that I anticipate he advanced in writing, we too would resist the application for permission to appeal to the House of Lords. If, however, your Lordships are minded to grant that permission, then in our respectful submission there are points of distinction between the case of Barker on the one hand and the other two appeals on the other which could conceivably result in different decisions being handed down in those cases in the House of Lords. In those circumstances, the respondents in the other appeal not wishing to be joined, my instructions are that we are content that Patterson should be the other case that should go to the Lords if your Lordships are minded to grant permission.

There is one other feature of difference between the Patterson case and the Barker case and that is that since the Barker case was decided the Association of British Insurers have developed what are described as guidelines in the handling of mesothelioma claims. That set of guidelines does apply to the circumstances in the Patterson case. The existence of those guidelines and the terms of them may offer a solution to the problem for the future. That might be seen as a policy reason by the House of Lords for not interfering with what we would submit to be the present state of the law in this area. So that again is a point of distinction between the Barker case and the Patterson case.

LORD JUSTICE KAY: Thank you.

MR GORE: I do not think I can assist your Lordships any further.

LORD JUSTICE KAY: Mr Fenny, we think it is a matter for their Lordships if they want to look at it again in the light of our judgment.

MR FENNY: As your Lordships please. I think that deals with all matters.

LORD JUSTICE KAY: Thank you for your help.