Lloyd v Humphreys & Glasgow Ltd

Mr Lloyd worked for various different employers during the 1950s, 1960s and 1970s, mostly as a welder, and was exposed to asbestos by at least some of those employers. Before he died, he issued a claim for damages for asbestosis against two of those former employers or theirsuccessors (“the first claim”). The defendants to the first claim were Ruthner Continuous Crops Systems Limited (“Ruthner”) and Babcock Woodhall Duckham Limited (“BWD”). Ruthner was the successor of Unit Superheater and Pipe Co Limited and BWD was the successor of Woodhall Duckham Construction Limited. The first claim was settled, with a contribution from a third employer, Bewley and John Limited (“BJ”) in 2011, for a relatively small amount. In 2012, a doctor diagnosed mesothelioma, and Mr Lloyd died soon afterwards, on 7 May 2012. After his death, his widow (“the Claimant”) brought this claim for damages for mesothelioma against the Defendant (“the second claim”). The Defendant is a fourth former employer of Mr Lloyd. It was not joined in the first claim and did not contribute to its settlement.

The issues in this case are, first, whether, the second claim is an abuse of process, and if not (it being conceded that the limitation period for bringing it has expired), the court should exclude the limitation period which would otherwise apply, so as to permit the Claimant to bring the second claim.

In Durham v BAI (Run Off) Limited [2012] UKSC 14; [2012] 1 WLR 867, paragraphs 5 and 6, Lord Mance JSC described mesothelioma. It is a “hideous disease that is inevitably fatal. In most, if not all, cases, it is caused by inhaling asbestos fibres. It is a cancer of the pleura. It cannot usually be detected until shortly before death. No-one knows exactly how it is caused or how it develops. It is impossible to know what part any particular inhalation of asbestos played in its development..... A significant number of those who get mesothelioma have no occupational record of exposure to asbestos. The likelihood is that, discounting mesothelioma which develops from no known cause, that their mesothelioma is a result of breathing in dust in the environment. The more fibres that are inhaled, the greater the risk. There is usually a long period between exposure to asbestos and the development of mesothelioma. This can be about 35 years. About 3000 people a year die in the United Kingdom from mesothelioma, reflecting the common use of asbestos during the 1960s and 1970s.”

I heard live evidence from the Claimant’s solicitor, Ms Child, and from Mr Phillips, the solicitor to the Defendant’s insurer. Their evidence was limited, in effect, to commenting on the documents. I have also read their witness statements, the witness statements from Mr Lloyd, and witness statements from Messrs Morgan, Miller and Woods who worked with him at various sites over the years and the medical evidence, and documents from the files of Mr Lloyd’s former solicitors, Corries. Where it is has been necessary for me to find facts on the documents, those findings have been based on my assessment of the balance of that evidence, and what that balance most probably shows.

Mr Lloyd was employed by various employers in the 1960s and 1970s. Those employers included the Defendant. On the Claimant’s case, that employment was for a period of about 17 months in total. That is based on a letter dated 13 March 1997, from Jacobs Engineering, who took over part of the Defendant’s business, to Johnson & Higgins UK Limited. That letter was sent in connection with a claim for industrial deafness. That letter says that Mr Lloyd was employed as a welder on four different sites, Clydach (for two different periods), Killingholme, Landarcy and Pembroke. The dates given for the Llandarcy employment are 7 August 1970 to 15 September 1970. The Clydach employment is a reference to employment at the Mond Nickel works, I am told.

In the most recent medical report, dated 15 November 2012, and prepared by Dr Davies for this claim, he said that, in his opinion, Mr Lloyd was suffering from asbestosis from 1993. Asbestosis is fibrous matter in the tissue of the lungs. Dr Davies based that opinion on his review of the X-rays. It is striking that Mr Lloyd did not get a contemporaneous diagnosis of asbestosis until much later, that is, 6 October 2008, when it was diagnosed on a CT scan.

It is appears from Dr Catterall’s report of 21 November 2006 that pleural plaques were first seen on an X-ray on 18 March 1986 and all subsequent chest X-rays were reported as showing pleural plaques or thickening (report, section 5).

On 10 November 2004, Mr Lloyd was diagnosed by a Department of Social Security (“DSS”) doctor as having localised pleural thickening and calcified plaques. Pleural plaques are caused by the body’s reaction to the presence of asbestos and they are found, as their name suggests, not in lung tissue, but in the pleura, the linings of the lungs. “Pleural thickening”, according to Ms Child, who is experienced in these cases, is often used interchangeably with “pleural plaques”. Mr Lloyd was reported by this doctor to be describing symptoms of shortness of breath. This doctor did not consider that Mr Lloyd had either D1 or D9 (I was told that these are the labels which were given by the DSS to two industrial diseases, diffuse pleural thickening, and asbestosis, respectively, although the two decisions in the bundle and the appeal letter dated 7 December 2004 concern diffuse pleural thickening and pneumoconiosis). The DSS doctor did not comment on whether there was a causal link between Mr Lloyd’s reported symptom and his observations.

On 13 May 2005, Mr Lloyd saw Dr Foley. She noted his history of asbestos exposure and of a fall. A chest X-ray had reported thickening pleura on the left and some calcification. Mr Lloyd was generally fit and well, except when he had bronchitis, and his lung capacity was less than would be expected of a man of his age. She referred him for a CT scan. She was not sure about the cause of his symptoms, and she was concerned about possible mesothelioma. The CT scan was done on 26 May 2005.

Mr Lloyd was reviewed by Dr Malin on 9 June 2005. The CT scan report had noted widespread pleural plaques, mostly calcified. Gross thickening was not present. No active pulmonary disease was suggested. The conclusion of that report was that the evidence was consistent with previous asbestos exposure but that there were no radiological signs which “were particularly suggestive of mesothelioma”. Dr Malin’s view was that there was no significant evidence of fibrosis. He explained to Mr Lloyd that the pleural plaques were benign, but did show significant exposure to asbestos. He explained that he was at an increased risk of developing mesothelioma, but was not certain to do so. He was discharged from the clinic, but told that he would be reviewed if he had new unexplained chest pain, weight loss or breathlessness. Mr Lloyd mentioned that he was considering a civil action and was given a leaflet about plaques.

Later, in a report dated 21 November 2006, Dr Catterall described extensive pleural plaques which probably accounted for the mild restriction on lung expansion, but that (in November 2006) the respiratory impairment was mild and there was no evidence of other asbestos-related disease. That diagnosis was based on the X-rays. He did not consider that the left-sided pleural shadowing was caused by Mr Lloyd’s injury in 2007.

I should explain that Dr Catterall had noted that Mr Lloyd had a history of trauma to the left chest, and a possibility of localised pleural thickening at the site of the trauma (report section 1). Dr Catterall said in section 3.1 of this report that Mr Lloyd had had two injuries to his chest. These (in 1984 and in 1997) are further described in that section of the report. Dr Catterall also said that in 2003, Mr Lloyd’s GP had suggested that Mr Lloyd might be suffering from mild chronic obstructive lung disease caused by the fact that he had smoked in the past.

Dr Catterall could find no other explanation for the restriction on lung function. The level of restriction might account for breathlessness during vigorous exercise but would have no noticeable effect on normal activities; it would not account for mild breathlessness on climbing stairs, which was more likely to be the result of mild weight gain and increasing age. The pleural plaques had been present before Mr Lloyd reported being breathless. The prognosis was good: it was unlikely that the degree of lung restriction would increase, or that Mr Lloyd would develop asbestosis. There was a small increased risk of mesothelioma and of lung cancer (2% in the case of each). Dr Catterall did not see Mr Lloyd before preparing his report.

On 14 February 2008, he clarified his report by saying that “mild restrictive defect” was accurate, and that it was possible that it was caused by a combination of excess weight and the pleural plaques. It appeared that Mr Lloyd’s residual lung capacity was lower than average. The pleural plaques were unlikely to account for Mr Lloyd’s breathlessness to date and there was no reason to think that they would account for more breathlessness in the future.

On 6 October 2008, Mr Lloyd had a CT scan of his chest. The report on it, by Dr Callaway, said that there was evidence of asbestos disease, with multiple calcified pleural plaques. There were also minimal interstitial changes which would be consistent with a degree of fibrosis. Dr Callaway’s conclusion was that there was heavy calcification of both pleura indicating previous asbestos exposure. There was minimal fibrotic change.

On 16 January 2009, Dr Catterall wrote a further report. He interviewed and examined Mr Lloyd (in October 2008) in order to prepare this report. By that stage Mr Lloyd had an abnormal chest X-ray and respiratory symptoms. Dr Catterall referred to the CT scan on 6 October 2008. He asked Dr Callaway to compare it with the 2005 CT scan. Dr Callaway’s reply (his report is also in the bundle), in short, was that as the 2005 scan was not a high resolution scan it was impossible to tell if what he had seen in 2008 was present in the 2005 scan. The fibrotic changes were less than 5% in lung volume. Dr Catterall’s view was that the change in the pleural plaques between the two scans was minimal. Mr Lloyd had had further lung function tests in 2008 which Dr Catterall analysed in this 2009 report.

Dr Catterall’s conclusion was that there were interstitial changes which were so minor in degree and extent that they were not likely to have functional consequences, but on the balance of probabilities, they were early asbestosis. The lung function tests suggested a “borderline-normal” restrictive defect; only “a mild impairment of maximal lung function at best”. The restriction in lung function was likely to be caused mainly by the pleural plaques, but a small contribution from the early asbestosis could not be excluded. The results did not explain Mr Lloyd’s breathing difficulties. The decline in lung function since 2005 was probably explained by various factors, each making a small contribution. The prognosis was still good. Pleural plaques did not progress to cause clinically significant disease. The mild fibrosis might progress, but was unlikely ever to cause serious disability, as Mr Lloyd’s exposure to asbestos, while significant, was comparatively modest. There was a less than 50% chance that Mr Lloyd would develop more than a 10% disability from this. The risks of mesothelioma and lung cancer were small; but they had doubled since the last report (to 4% in each case).

On 18 December 2009, Dr Ellis, a consultant respiratory radiologist, reviewed the 6 October 2008 CT scan. His view was that it showed diffuse-type pleural thickening which might have a debilitating effect, and interstitial fibrosis which was probably asbestosis.

Dr Butland produced a report dated 30 March 2010. He was instructed by the insurers of Ruthner. He interviewed and examined Mr Lloyd. It is clear both from his report, and Mr Lloyd’s letter of 17 March 2010, which he sent about this encounter to Corries, that he and Mr Lloyd did not get on well. Dr Butland started, as he describes in his report, by asking Mr Lloyd to produce documents to identify himself. This does seem an unnecessary step, but Dr Butland does not seem to have reacted well to Mr Lloyd’s request, in turn, to see his passport, which he also records in his report. Dr Butland records that Mr Lloyd would not answer some of his questions. He records that Mr Lloyd suffered from deafness, and also that “To his credit, at the end of the consultation, Mr Lloyd said, “I do apologise for being hasty” ”.

Mr Lloyd’s contemporaneous account of the consultation, which was written before the date of Dr Butland’s report, is that he was having problems with his hearing aid, and so could not understand many of Dr Butland’s questions. This made him a little agitated with himself. He asked to read Dr Butland’s written questions, as that would be easier for him than trying to hear them, but Dr Butland refused. Mr Lloyd gave further details, in direct response to Dr Butland’s report, when it was disclosed over a year later, in letters dated 12 May 2011 and 5 June 2011 to Corries. I do not consider that, on the basis of these two accounts of the consultation, I can properly conclude that Mr Lloyd was being deliberately difficult or unco-operative. It is more likely that he was disconcerted by the request for his passport, and by Dr Butland’s reaction when he, in turn, asked to see Dr Butland’s passport; and that the difficult start to the consultation, combined with the problems he had with his hearing aid, might have made it seem as if he was being more deliberately difficult when he was not.

Dr Butland’s report explains that pleural plaques are strongly associated with a history of asbestos exposure, and are “by far the most common respiratory effect of asbestos inhalation. They may occur after lower exposure than is required to cause asbestosis. Among people whose jobs expose them to asbestos, the prevalence of plaques increases in relation to the degree of exposure to asbestos and in relation to the time which has passed since the exposure occurred. Pleural plaques are not commonly visible on plain chest X-rays less than 20 years after a person is first exposed to asbestos. They do not normally cause symptomatic impairment of lung function. They are not thought to lead directly to other types of asbestos-induced disease”. Dr Butland pointed out that most of research on lung function and disability in asbestosis is based on X-ray diagnosis, and so on “considerably more severe disease than is picked up on modern CT scanners”. As CT scanners improve, it becomes possible to detect early asbestosis even sooner. There is no data on whether these subtle changes cause disability or a change in lung function tests. His experience was that minimal asbestosis does not usually cause respiratory disability in otherwise normal subjects; it is usually an incidental finding in patients who have other causes of breathlessness. His view was that this very early “CT-only asbestosis” was contributing to less than 1% of total disability.

He explained that diffuse pleural thickening is a type of pleural fibrosis which extends continuously over a variable proportion of the thoracic cavity. Its incidence increases in proportion to the time which has passed since first exposure. Its occurrence is dose-related. Depending on its location, it can cause a restrictive defect and shortness of breath on exertion. Dr Butland considered that there was no evidence of diffuse pleural thickening at the age of 75 years. In his later report, Dr Davies says that diffuse pleural thickening is “defined as concentric pleural thickening, usually involving the loss of the costophrenic angle on a plain chest” X-ray.

Dr Butland analysed all the GP’s notes, and hospital records. He concluded that Mr Lloyd had smoked a pipe for about 38 years, from the age of 23; Mr Lloyd having provided him and Dr Catterall with different accounts of how long he had smoked for. He had told Dr Catterall that he had only smoked for 10-15 years. Dr Butland attributed Mr Lloyd’s history of bronchitis to the fact that he had smoked. The first reference in the medical records to breathlessness was in 2005.

Dr Butland’s conclusion was that Mr Lloyd had many pleural plaques but that they had not caused disability. His winter bronchitis, and the associated cough, wheeze and breathlessness were caused by his former smoking habit. He had been overweight, and this had contributed to his breathlessness, and would make a small contribution to his restrictive lung function deficit. He had no disability attributable to asbestosis, pleural plaques, or to any other consequence of exposure to asbestos. His risk of future diffuse pleural thickening sufficient to cause shortness of breath and disablement was 1%, his risk of an increase in asbestosis sufficient to cause shortness of breath and disablement was 2-3%, and the risks of mesothelioma and lung cancer were 2 and 4% respectively. 2.5% of the latter risk was due to asbestos exposure. His life expectancy had been reduced by 0.5 years as a result of such exposure.

Mr Lloyd had “minimal CT only asbestosis involving less than 5% of the lung”. Dr Butland did not attribute any current disability or breathlessness to that, but did attribute some of the fall in vital capacity since 2005 to asbestosis. He considered that he and Dr Catterall agreed on this.

The multiple pleural plaques were caused by his occupational exposure to asbestos but did not cause any disability. Although it had been difficult to take a history, Mr Lloyd was exposed to asbestos intermittently between 1957 and 1973, and had on occasion worked alongside laggers, who generate “some of the highest respirable asbestos fibre concentrations”. His occupational exposure to asbestos was the cause of his asbestosis. Dr Butland agreed with Dr Catterall that the injury to the left side of Mr Lloyd’s chest was irrelevant.

Dr Catterall produced a further report dated 11 June 2010. Mr Lloyd had had a further CT scan, on 26 April 2010. That had shown no evidence of progression of the interstitial disease. There was bilateral asymmetrical pleural disease with extensive calcification. There was some pleural thickening. The pleural disease showed no sign of progression in either lung.

Dr Catterall said there was one significant difference between the reports of Drs Ellis and Callaway, which was Dr Ellis’ reference to diffuse pleural thickening. On reflection, he and Dr Callaway both agreed that some of the pleural thickening was of the diffuse type. This had several implications. It supported the theory that Mr Lloyd’s borderline restrictive defecit was due to asbestos-related pleural disease as diffuse pleural thickening is a well-recognised cause of restricted breathing. Second, it could help to explain the fall in capacity between June 2005 and December 2008. It was possible that there had been subtle changes in pleural thickening which were not visible radiologically. This was at least as likely an explanation of the fall in vital capacity as slight progression in mild asbestosis. A third implication was that because the condition could be progressive, Mr Lloyd might become more breathless than if he had only pleural plaques and mild asbestosis. Dr Catterall thought that Mr Lloyd’s chance of becoming 10% disabled was slightly greater than 50%, but he was not likely to become 20% disabled.

Dr Catterall’s conclusion was that Mr Lloyd had asbestos-related lung disease due to a combination of pleural plaque disease and diffuse pleural thickening. He also had very mild interstitial lung disease which was probably asbestosis. His borderline restriction on breathing was caused mainly by the asbestos-related pleural disease. The prognosis was still good, but somewhat more guarded than in January 2009. The risks of mesothelioma and lung cancer were unchanged.

On 8 July 2010, Dr Ellis reviewed the 2008 and 2010 CT scans. He repeated what he had said about the 2008 scan, and said that “There is no radiologic evidence to indicate any progression of the asbestos related disease between the two CT scans.

Dr Davies’ report dated 15 November 2012 gives further information from Mr Lloyd’s medical notes from July 2010 onwards. On 27 July 2010, Dr Sturney wrote to Mr Lloyd’s GP. Dr Sturney referred to Mr Lloyd’s persistent cough. A chest X-ray showed no changes from January 2010. Mr Lloyd was seen by Dr Al-Najjar on 15 November 2010. Dr Al-Najjar was shown a report of a CT scan which showed that Mr Lloyd’s interstitial lung disease had not progressed. Dr Al-Najjar’s view, based on an X-ray taken that day, was that there was no progression of the left-sided consolidation. Mr Lloyd would be seen in 6 months’ time. On 4 July 2011, Mr Lloyd was seen by Dr Malin. He had a marked cough, which was bad enough to reduce his appetite, and his weight had fallen from 87kg to 79kg. Mr Lloyd’s lung function tests and X-ray revealed no change, but his weight should be monitored, as if he continued to lose weight, he should have a further CT scan.

On 19 August 2011, Mr Lloyd was urgently referred by his GP to a chest clinic because of a 4-week history of cough, night sweats, persistently raised inflammatory markers with a normal white cell count, some weight loss, muzzy headedness and marginal anaemia. Dr Al-Najjar referred in a letter dated 26 September 2011 to Mr Lloyd’s continued weight loss (now 76.7kg). The X-ray showed a progressive increase in shadowing at the left base. He had mild chest discomfort and increased breathlessness on exertion. He had a reduced appetite, weight loss and night sweats. Dr Al-Najjar said that a CT scan was needed to rule out mesothelioma or lung cancer.

On 23 November 2011, Mr Lloyd had a CT scan. The scan was said to be “suspicious of mesothelioma” and a biopsy was recommended. A letter dated 14 December 2011 to Dr Suntharalingan said that its author had explained to Mr Lloyd and to the Claimant that the CT scan raised the possibility of a left pleural malignancy. The biopsy was done on 29 December 2011. The report about that, dated 30 December 2011, noted “spindly atypical mesothelial cells” but said that it was not “diagnostic for mesothelioma”. The conclusion was “slightly cellular plaque”.

A VAT’s pleural biopsy was then arranged. Mr Lloyd was seen on 24 January 2012 by Mr Batchelor, who suggested that Mr Lloyd might have early Horner’s syndrome. On 30 January 2012, he had a left open pleural biopsy. The report on this mentioned a “patchy fibrous exudate”. The conclusion was “benign pleural plaque”. On 9 February 2012, Dr Foley wrote to Dr Maskell. She asked him to review Mr Lloyd’s case. She said that clinically mesothelioma seemed “highly likely” but “we have not proven that he has mesothelioma”. By then he had had two negative biopsies. There was a further histopathology report on 27 February 2012. The findings were interpreted as an “atypical spindle cell proliferation”. A further biopsy was planned.

Mr Lloyd saw his GP twice in March 2012. His mood was low and his appetite was poor. He was in some pain. There was a further biopsy, this time of a lymph node. The report on it is dated 21 March 2012. The conclusion was that Mr Lloyd had a poorly differentiated adenocarcinoma which was secondary to, most likely a lung, or possibly a breast, tumour. Mesothelioma was thought to be unlikely, because of the way the cells reacted. But a letter from Dr Maskell shortly after (22 March 2012) said that the staining profile was in keeping with predominantly sarcomatoid mesothelioma. Mr Lloyd saw his GP on 16 April 2012. He was suffering a great deal of pain.

On 24 April he was too unwell to go to an outpatient clinic to discuss his recently diagnosed mesothelioma. The Claimant and his daughter went. The Claimant described a rapid recent deterioration. Mr Lloyd was confined to bed and needed her nursing care. Dr De Winton and Mr Lloyd’s family had a frank discussion about end-of-life care. They were told that he had days or weeks, rather than weeks or months, to live. He died on 7 May 2012. His cause of death was recorded as “malignant pleural mesothelioma”.

A post mortem examination was done on 10 May 2012. In the lung there were deposits of poorly differentiated tumour with epithelioid and spindled shapes. This had grown along the pleural surface in areas, and had invaded blood vessels. Its phenotype was indeterminate, which meant that it was difficult to tell if it was mesothelioma or cancer. Metastatic tumours were found elsewhere in the body. A supplementary pathology report said that the tumour was “extremely difficult to classify”. On balance, it was thought to be mesothelioma, but it had unusual features. An asbestos count was not done, because asbestos fibres were evident from light microscopy, and because the tumour was more likely to be mesothelioma, the author of the report thought that it could be attributed to asbestos exposure. A national expert had been consulted to confirm the diagnosis of mesothelioma. The evidence indicated “extensive asbestos exposure”.

Dr Davies based the occupational history in his report on Mr Lloyd’s witness statement of 19 April 2012. He had also reviewed all the medical notes. It seems that he might not have reviewed these as carefully as Dr Butland, as he mentions only two relevant references to Mr Lloyd’s smoking history, and describes it, on page 29 of his report, as “minimal”.

Dr Davies considered that Mr Lloyd had very clear X-ray evidence of calcified pleural plaques which are consistent with asbestos exposure. In his opinion, Mr Lloyd did not have diffuse pleural thickening. Pleural plaques indicate asbestos exposure. There is a long latent period. They become more calcified and visible on X-rays as time passes. They do not usually cause symptoms unless they are confluent with pleural thickening at the base of the chest associated with the loss of the costophrenic angle on a chest X-ray. Pleural plaques are thought to be associated with exposure to amphibole asbestos.

Dr Davies indicated that the detailed debate in the pathology reports about the type of tumour Mr Lloyd had was outside his area of expertise; so he deferred to the expert view that, on the balance of probabilities, Mr Lloyd died from malignant mesothelioma. If someone has died from mesothelioma, and has a history of asbestos exposure, the balance of probability favours the conclusion that the exposure to asbestos caused the mesothelioma. The latent period can vary from at least 15 to 40 years. Mesothelioma probably begins to grow about 10 years on average before there are clinical signs. If a court accepted that the diagnosis of mesothelioma was correct, the case was straightforward, because of Mr Lloyd’s history of exposure to asbestos. If a court accepted Mr Lloyd’s occupational history, it is probable that the exposure to asbestos in his employment caused pleural plaques, asbestosis and mesothelioma.

Pleural plaques were clearly visible on X-rays from 1983, but were unlikely to have caused any disability. Dr Davies thought that he had some respiratory disability from asbestosis probably from 1993 onwards; a 10% disability until 2005, when there was clear evidence that his breathing deteriorated. The notes suggested a 20% disability from asbestosis from 2005 to 2010, and a significant decline from then on. His view was that there was an extensive pleural malignancy in January 2010.

In his first witness statement, Mr Lloyd explained that he became worried about asbestos when he was approached for a statement about a former colleague, Lyn Jones. He had an X-ray in 2000, but was not told the results. He later learned (in 2004) that this showed some localised pleural thickening and calcified plaques.

In 2004, he saw an advertisement in a newspaper inviting people who had worked with asbestos to contact solicitors. He contacted Corries, who helped him to make an application for industrial injuries disablement benefit. He filled in an asbestos questionnaire. He had a medical assessment with the benefits agency in November 2004. He did not qualify for any benefit. He wrote to his solicitors to say he was a little disappointed about this as he knew he had some medical problem. According to his second witness statement, a letter from his solicitors dated 25 November 2004 was the first clue he had that he was suffering from an asbestos-related medical condition. He first noticed he was getting short of breath 10 years ago. He said he smoked a pipe moderately in his mid-years, but had given up 20-35 years before. I have already mentioned that when Mr Lloyd was seen by Dr Malin on 9 June 2005 he was considering a civil claim.

In June 2005 Corries sent letters of claim to the two defendants in the first claim. Corries wrote to Downlands (the claims handlers for Excess, who insured the Defendant) on 22 August 2005 to ask if they insured Unit Superheater. On 1 December 2005, they wrote to the Defendant’s liquidator to intimate a claim and to ask for details of the Defendant’s insurers. Corries also sent claim letters to the two defendants in the first action in November 2007, suggesting a claim for symptomatic pleural plaques.

On 6 February 2006, Corries advised Mr Lloyd (as a result of the decision of the House of Lords in RothwellvChemical & Insulating Co Limited [2007] UKHL 39 [2008] 1 AC 1), that he did not have a claim. In March 2006 Corries discovered that the Defendant, which had ceased trading in 1990 and was in liquidation, had had insurance cover with Excess between 1968 and 1970. According to Mr Phillips, part of its business was acquired by Jacobs Engineering, which had some records for the Defendant. So far he has found a file about an occupational deafness claim which Mr Lloyd made in 1997. It was noted that it might be worth writing to Downlands (the relevant claims handlers), as this covered part of the period when Mr Lloyd had said he was employed by the Defendant, but it was felt that a letter of claim was not justified in the current legal climate. At the same time, Corries made a standstill agreement with the two defendants who were eventually sued in 2011.

Corries instructed Dr Catterall to provide a report in 2006, after Mr Lloyd reported a deterioration in his breathing. There was dialogue between Corries and Dr Catterall between January 2007 and May 2007. Counsel advised that the claim was “on the cusp of” actionability, just on the right side. A second barrister was more cautious, but agreed with the first that no action should be taken until the decision of the House of Lords in Rothwell. Ms Child, the Claimant’s solicitor, summarises what the documents in Corries’ file show about further investigations in 2008. These revealed that the Defendant had not been dissolved because of pending litigation relating to asbestos and that Excess had insured the Defendant since 1922.

On 21 November 2007 Corries wrote to Unit Superheater’s insurers, who had written to them to say that following the decision of the House of Lords in Rothwell, they did not consider that Mr Lloyd had a claim. Corries had obtained a further medical report and believed that his case could be distinguished from the test cases. Corries said that his case was a rare example of symptomatic pleural plaques. Mr Lloyd had suffered damage and had an actionable claim. Zurich were invited to put forward proposals, failing which, a claim would be made. On 28 March 2008, Corries made a Part 36 offer to Zurich acting for Unit Superheater. The claim was valued at £6000 on the assumption that Mr Lloyd did not contract any further diseases. That claim was rejected by Zurich on 8 April 2008, as on the medical evidence, no compensation was due.

Corries sent a letter before claim to Downlands on 6 August 2008. On 7 August 2008 Downlands asked what type of disease this was, and were told, “Symptomatic plaques/pleural thickening”. Downlands’ initial response was that they would set up a claim, and write. On 12 August 2008, Downlands’ further response was that they had never seen a symptomatic pleural plaques claim before and did not consider that the relevant policy would provide an indemnity, no actionable injury having been sustained during the currency of the policy. They would not be taking any further action.

On 15 September 2008, Corries noted Downlands’ position (and referred to the “Bolton v MMI principle). Corries said they trusted that Downlands would deal with the matter if the decision in the test cases went against them, and there was no appeal. On 18 September 2008, Corries wrote to Zurich to say that they had traced insurance cover for the Defendant, Excess, but Downlands were refusing liability based on the policy wording. They also appeared to have traced cover for BJ, and would confirm.

On 30 October 2009, Corries wrote to Downlands again, referring to the first instance decision in the Trigger cases. Corries said that their understanding was that Downlands were still refusing to entertain claims. Corries enclosed up-dated medical evidence. Downlands emailed on 30 October 2009. They said that the case was likely to raise “various issues aside from ‘trigger’. The Appeal in the trigger litigation commences next week”. They said they would nominate Plexus Law to accept service, without prejudice, in accordance with the Trigger Practice Direction. They then asked for copies of the medical evidence, an employment history and the names of the other employers who were being pursued. Corries replied with that information on 11 November 2009. They said that Mr Lloyd’s original statement was likely to be supplemented by a more detailed statement in due course.

It was, I think, common ground that Excess were the only insurers to refuse an indemnity pending the outcome of the Trigger litigation not only in respect of mesothelioma claims, but in respect of all asbestos-related claims. The effect of the Practice Direction issued on 26 July 2007 was that all claims were transferred to Master Whitaker for him to consider whether they should be referred to Burton J, or stayed pending the lead cases. Paragraph 12 of the Practice Direction gave Burton J power to extend the definition of the core issue to include claims other than mesothelioma claims. It does not seem that he did so. The Practice Direction only applied in terms to mesothelioma claims (see paragraph 1.2).

Corries wrote to Downlands again on 28 July 2010. They enclosed further medical evidence. This had been forwarded to the other defendants, who had been invited to put forward settlement proposals. Downlands were asked whether they wanted to nominate solicitors for service. Downlands replied on 29 July 2010, saying that their email of 3 November 2009 was relevant to service.

Excess had, according to the witness statement of Mr Phillips given a general notice in 2006 that it was not providing any indemnity for asbestos-related disease because of the wording of the relevant policy. Excess were a party in the “Trigger” litigation (which culminated in the decision in the Supreme Court in Durham). These test cases concerned the extent of the liability of various insurers for mesothelioma under a variety of different employer’s liability policies. The cases were heard in the High Court in 2008. There was an appeal to the Court of Appeal, and then to the Supreme Court. The judgment of the Supreme Court was handed down on 28 March 2012.

In an email dated 20 January 2010, after previous contact with Royal Sun Alliance (“RSA”) from Corries, RSA revealed that they were the insurers for BJ from 1 April 1968 to at least 31 December 1979. Corries sent them further information about the claim on 28 July 2010.

Corries wrote to Downlands on 28 July 2010. That letter attached recent medical evidence. The letter said that Zurich had been invited to put forward reasonable settlement proposals, failing which proceedings would be issued. They asked for an address for service “should it become necessary to go down the route of litigation”. A file note dated 29 July 2010 records an email from Downlands to Corries. This said, “Thank your for your letter dated 28^th July. Our email of 3/11/09, below, is relevant to service”. Corries did not communicate further with Downlands about the first claim. On 20 October 2010 Corries wrote to Mr Lloyd to say that after the decision in the Trigger litigation, it looked as though the Defendant’s policy was “pretty useless” for his claim (this is a reference to the decision of the Court of Appeal). Corries said that they would seek a barrister’s advice, as the point might go to the Supreme Court.

During this period, Corries applied to have Ruthner restored to the Register of Companies. On 29 November 2010, Mr Lloyd wrote to Corries with an up-date about his health. His recent breathing test had been lower than the previous one, but the specialist was “non-committal” about the X-ray. He was to be followed up in 6 months’ time. Corries reported to Mr Lloyd their efforts to restore Ruthner to the Register, and their researches about Woodhall Duckhams in a letter dated 14 December 2010. Ruthner was restored to the Register on 21 December 2010. Zurich had still not provided Dr Butland’s report to Corries. Corries were conscious of the need to issue proceedings, but in early 2011 had still not identified Woodhall’s successor company, despite their researches. Mr Lloyd was told what was being done in a letter dated 2 March 2011. He was asked to give authority for HMRC to be approached for information about his deductions history. He gave this. On 5 April 2011, HMRC called Corries to say that they could not release deductions and facings cards because they belong to employers, but that they could answer specific questions.

Dr Butland’s report was disclosed to Corries on 28 April 2011, over a year after it was written. Zurich put forward an offer of £10,000 plus benefits on behalf of two employers. It reflected a Holtby deduction in relation to the exposure with BJ and the Defendant. On 9 May 2011 Corries wrote to Mr Lloyd. They summarised the effect of the competing medical evidence. If Dr Butland’s report was preferred, Mr Lloyd would recover nothing, and if Dr Catterall’s, Mr Lloyd would be entitled to damages, but “perhaps only a very modest sum”. The solicitor told him about Zurich’s costs inclusive offer of £10,000. She said that Corries’ fees excluding those of experts amounted to £17,000, so she could not advise him to accept the offer.

Counsel advised on 1 June 2011 that the limitation period would expire on 8 October 2011. Corries should aim to be issuing a claim by the beginning of July. Corries should make a Part 36 offer, and warn the defendants that proceedings would be issued. They should take Mr Lloyd’s instructions on whether he wanted a final or provisional award, and on making a Part 36 offer. Counsel advised that it would be preferable to include Woodhall if possible, as they appeared to have an insurer. If the claim were issued it would be against Ruthner and Woodhall. It was a 50/50 (or “very borderline”) claim on the medical evidence. If there were no insurers for BJ and the Defendant, this would reduce the claim by about a third. Counsel valued the claim at £9000 on a provisional damages basis and at £12-13,000 on a full and final basis, reduced by the appropriate Holtby deduction. Counsel advised that the risks of mesothelioma and lung cancer were sufficient to mean that Mr Lloyd should be persuaded to ask for provisional damages.

Corries wrote a full letter of advice to Mr Lloyd on 31 May 2011. It suggested that no insurers had been identified for the relevant years for BJ or for the Defendant. This was not correct as regards the Defendant, as its insurers had been identified. Mr Lloyd replied on 5 June 2011. He said that if he were to put a figure on the claim, it would be £10,000 plus expenses. He was not sure that a provisional settlement at his age would be of much benefit. A file note dated 8 June 2011 repeats the mistaken assertion that the Defendant’s insurers had not been traced, as did Corries’ letter of 8 June 2011 to Mr Lloyd. In that letter Corries asked for clear instructions about the type of award Mr Lloyd favoured, and repeated their advice that a provisional award would be sensible.

Mr Lloyd replied on 5 July 2011 and said that his current view was that he would like compensation on a full and final basis. He reported on a recent visit to hospital; his breathing capability had deteriorated a bit, but the chest X-rays did not seem to show much change on an initial view. He signed a settlement form of authority for a Part 36 offer of £9000 in full and final settlement. On 13 July 2011, Corries sent a Part 36 offer to Zurich in the sum of £9200 to conclude the claim against Superheater and Woodhall. When the draft particulars of claim were received from counsel, Corries noted that a claim for provisional damages was pleaded, although Mr Lloyd’s instructions were that he wanted a full and final settlement (file note of 18 July 2011). On 21 July 2011, a file note records that Corries had considered a hospital letter sent by Mr Lloyd to Corries. It referred to weight loss and said that its cause was uncertain, and Mr Lloyd wanted to lose more weight. The note said that the hospital letter confirmed that Mr Lloyd’s asbestos-related disease was causing minimal, if any, problems, and that the benefits of settling the claim out of court were “absolutely huge”.

Proceedings were issued on 12 September 2011, but not served, as it looked as though the insurers might settle them (see Corries’ letter of 21 September 2011 to Mr Lloyd). Mr Lloyd wrote to Corries on 11 October 2011. He said that he had been a bit involved with doctors and consultants lately and was due to have an appointment on 7 November, and a further scan. A file note dated 12 October 2011 records an offer from Zurich “acting on behalf of all the interested parties” to settle the claim.

On 12 October 2011 Corries wrote to Mr Lloyd to say that Zurich had made a counter offer of £8500 net of benefits. Zurich felt that the medical evidence was equivocal. Corries referred to their inability to trace insurers and advised Mr Lloyd to accept the offer. They advised him of the costs consequences of failing to beat the offer at trial. The offer was a good outcome in the light of the conflicting medical evidence. Corries wrote again on 31 October 2011, asking for Mr Lloyd’s instructions. He replied to the letter of 12 October 2011 on 30 October 2011, rejecting the offer. He reported his recent hospital visit and the finding of fact that he had lost one and a half stone. He was a little disconcerted about this. He would accept the offer if Corries and Zurich would each give £700 to the Royal United Hospital Bath.

A file note dated 9 November 2011 recorded the fact that Mr Lloyd was digging his heels in over £700. He would have to be advised that the offer would have to be reported to the ATE insurers, and if he acted against Corries’ advice, this would be a breach of the CFA, and the funders would withdraw, which would make Mr Lloyd personally liable for Corries’, and the defendants’ costs. On 7 November 2011 Mr Lloyd wrote to Corries to say that his appointment for a scan had been re-scheduled for 23 November 2011.

A file note dated 14 November records an increased offer, made on 10 November, on the ’phone, of £8850. On 10 November 2011, Corries wrote a firm letter of advice to Mr Lloyd. Zurich had increased the offer to £8850, meeting in the middle, although they were reluctant to budge. The reality was that the offer was within £150 of the best outcome that could realistically be achieved. Mr Lloyd was advised to accept the offer. He was advised in stark terms of the costs consequences if the offer was rejected, and not bettered. Mr Lloyd replied on 11 November 2011, agreeing to accept the offer. He would have fought on if he had been younger and in better health. He agreed with Corries’ comments about judges’ rulings, and described this as “another strong deciding factor. We see so many of the unbelievable decisions they make these days”. He was irked at the response to the claim over the years, and the disdainful attitude to his out-of-pocket expenses.

On 17 November 2011, Corries accepted Zurich’s increased offer by email. Corries received the settlement cheque on 21 November 2011.

Corries issued proceedings against Ruthner and BWD on 12 September 2011 (HQ11XO3370). The statement of truth on the particulars of claim was signed by Mr Lloyd on 25 July 2011. Damages limited to £15,000 were claimed. The particulars of claim gave particulars of exposure to asbestos, and particulars of breach of duty by both defendants. The particulars of injury were “pleural plaques, very mild asbestosis and diffuse pleural thickening”. It is clear from those particulars that the pleader considered that Mr Lloyd’s degree of disability was less than 10%. At paragraph 9 of the particulars of claim, Mr Lloyd claimed provisional damages pursuant to section 32A of the Senior Courts Act 1981 calculated on the footing that he would not later develop more serious conditions. As I have already noted, this did not reflect Mr Lloyd’s instructions.

In his second witness statement dated 19 April 2012, Mr Lloyd stated (at paragraph 58) that Corries settled a claim for him for asbestosis in November 2011 for £8750 “on a full and final basis”. He said that this was only against the two employers who were named as defendants to that claim. However, it seems from investigations carried out by Boyes Turner (“BT”) (who were later instructed by Mr Lloyd) in November 2012 that although BJ were not sued, they in fact contributed, on an apportioned basis, to the settlement of the first claim. An email dated 14 November 2012 from Clare Buckley at Royal & Sun Alliance Group (“RSA”), replying to a letter dated 12 November 2012 from Ewan Tant at BT, states that BJ contributed to the settlement. Zurich acted as overall claim co-ordinator and paid the total, and they were reimbursed by RSA. Copies of the cheques are attached. It is common ground that the settlement sum reflected a “Holtby” discount of 9%; that is, a percentage to represent the months of employment with the Defendant, who was not sued in the first claim. The total Holtby discount was 33% despite RSA’s contribution to the settlement sum.

By November 2011, according to that statement, Mr Lloyd was very unwell, and deteriorating fast (since September 2011), though he had no definite diagnosis. He told Corries that he was getting worse and did not want to settle his claim for so little. He felt under a lot of pressure from Corries to settle. Their advice was that “weighing up all the factors”, to settle. They discussed a provisional settlement, but he was told that since the medical reports gave a low risk of contracting mesothelioma, he should settle on a full and final basis. They were well aware of his deteriorating condition but he had not been diagnosed. He did not want to accept the offer, as he did not feel it was a fair reflection of his pain or the extent of his disability. Corries told him he would be liable for costs if he continued. This account is not reflected in the documents in Corries’ file, to which I have referred. I prefer those documents to his account.

On or about 22 March 2012, the Claimant received a diagnosis of mesothelioma. He described in his second witness statement what a shock this was. He instructed his then solicitors, BT, to issue a claim for mesothelioma in April 2012. He died of mesothelioma on 7 May 2012. A letter before claim was sent to the Defendant and copied to Downlands, on 22 June 2012. Mr Phillips asked BT whether they were pursuing the claim and was told by BT on 19 August 2013 that he could close the file. This was prompted by negative advice from counsel about accord and satisfaction.

In September 2013, the Claimant instructed Withy King (“WT”). WT wrote a further letter of claim (on 28 November 2013). I asked Mr Philips whether he had destroyed his file after the 19 August 2013 letter. He said he had not: the file had been archived. So he did not rely on that letter to his detriment. This claim was issued on 31 January 2014. It is for damages for mesothelioma on behalf of the Claimant’s estate, pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 and on behalf of herself as the Claimant’s widow and dependant, pursuant to the Fatal Accidents Act 1976.

The legal framework I have to consider has two main features:

Abuse of Process

I have found the judgment of Andrew Edis QC sitting as Deputy Judge of the High Court (as he then was) in Dowdall v William Kenyon & Sons Limited [2014] EWHC 2822 (QB) helpful. He considered some of the issues which arise in this case. The first issue was abuse of process. He referred to Johnson v Gore-Wood (No 1) [2002] 1 AC 1 and Dexter Limited v Vlieland-Boddy [2003] EWCA Civ 14, in particular, paragraph 49. Clarke LJ (as he then was) there said that it is for a defendant to show that a claim is an abuse. It is more likely to be an abuse of process for a claimant to sue the same defendant twice, but there can be abuse where a claimant brings two claims against different defendants. The fact that a complaint which is made in a second claim could have been made in an earlier claim does not necessarily make it an abuse. The question is whether “applying a broad merits-based approach” the claimant’s conduct is, in all the circumstances, an abuse. A court is unlikely to find an abuse unless the second claim involves unjust harassment or oppression of a defendant.

The 1980 Act

The primary limitation period

Section 11 of the 1980 enacts a special time limit for actions in respect of personal injuries. It applies here. An action to which section 11 applies must not be brought after the period which applies in accordance with section 11(4) of (5) (section 11(2)). The general rule is that that period is three years from the date when the cause of action accrued or the date of knowledge (if later) of the claimant (section 11(4)).

Section 14 defines “date of knowledge” for the purposes of section 11. That date is the date on which he first had knowledge of (1) the fact that the injury in question was significant, (2) the fact that it was attributable to an act which is alleged to be negligent or a breach of duty, and (3) the identity of the defendant. Knowledge that acts or omissions were, or were not, negligent or a breach of duty is irrelevant (section 14(1)).

An injury is “significant” if the claimant would reasonably have considered it a sufficiently serious injury to justify his instituting proceedings for damages against a defendant who did not dispute liability and who was able to satisfy a judgment (section 14(2)).

“Knowledge” includes knowledge which a person might reasonably be expected to acquire from facts he can see or find out, and from facts he can find out with the help of any medical or other expert advice which it is reasonable for him to get. But a person is not fixed with knowledge of a fact he could only find out with expert advice as long as he has taken all reasonable steps to get (and where appropriate) to act on, such advice (section 14(3)).

The rule in Fairchild v Glenhaven Funeral Services [2003] 1 AC 32and in Barker v Corus UK Limited [2006] 2 AC 572 imposes liability for mesothelioma on those who have negligently exposed people to asbestos and so created a risk of mesothelioma. In paragraph 57 of his judgment, Lord Mance said that, if the later decisions of the Supreme Court are taken into account, what he called the “Fairchild principle” extends to any case where there has been an act or omission exposing a person to asbestos, which might have caused mesothelioma but which cannot be shown as a matter of probability to have done so. The Supreme Court’s later decision in Barker (about the nature of each employer’s liability) was reversed by Parliament in the Compensation Act 2003, so that each employer was liable for the whole damage caused by mesothelioma.

The cases give some useful indications about what a cause of action is, and when, in this context, a cause of action accrues.

“Cause of action” was explained by Lord Esher MR in Coburn v Colledge [1897] 1QB 702 as “...every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment from the court.” The issue in Rothwell was, what degree of damage is necessary to constitute a cause of action against an employer when an employee has been negligently exposed by him to asbestos. The House of Lords held that the existence of visible physical changes to an employee’s lungs (pleural plaques) caused by, and signalling the presence of, asbestos, which might independently cause diseases such as asbestosis or mesothelioma, but which produced no physical symptoms, was not compensatable damage.

Lord Hoffmann also explained the relationship between this conclusion and a well-settled principle of personal injury law, which is that if a person has suffered actionable personal injury as a result of a defendant’s breach of duty, he can and must claim damages in the same action for all the damage which he has suffered or will suffer in consequence of that breach of duty (judgment, paragraph 13). He referred to a passage in the judgment of Bowen LJ in Brunsden v Humphrey (1884) 14 QBD 141 at page 148.

In Brunsden v Humphrey the plaintiff brought a claim in the county court for damages to his cab caused by the negligence of the defendant’s employee (as we would now refer to him). He recovered damages when the defendant paid a sum into court. He did not at that stage know the extent and significance of his injuries. He then brought a claim for personal injuries in the High Court. The injury was sustained from the same negligent act as the damage to the cab. The issue for the Court of Appeal was whether the plaintiff had one cause of action, or two. Bowen LJ said that “It is a well settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once and for all”. The test was whether precisely the same cause of action was being litigated in both claims and a good criterion was that the same evidence would maintain both actions. He went on to say (at page 148) that nobody could doubt if the plaintiff had recovered any damages for injury to his person “he could not have maintained a further action for fresh bodily injuries caused by the same negligence, merely because they had been discovered or developed subsequently”. The negligent driving led to two separate kinds of injury and two wrongs were done. The claim in the county court for damage to the cab did not bar the subsequent claim for personal injury.

In Rothwell Lord Hoffmann said that the “single action rule” was very old, and “for the protection of defendants”. A corollary of the rule was that if a claimant does have a cause of action, he may recover damages for the risk that he may suffer further injury in consequence of the same act of negligence, even if he could not recover independently for that risk (judgment, paragraph 14).

He also referred (judgment, paragraphs 15 and 16) to section 32A of the Senior Courts Act 1982, which enables rules of court to be made giving a court power to award damages assessed on the footing that a risk will not materialise, and further damages at a future date if the risk does materialise. This means that a claimant who has a cause of action for personal injury caused by negligent exposure to asbestos can choose, when he makes a claim against his employer, either, to sue for his actual damage plus compensation for the risk of further damage, or for the actual damage, with a right to go back to court to claim further compensation if any risk (such as of the development of mesothelioma) does materialise in the future.

Lord Hoffmann said (judgment, paragraph 20) that Smith LJ had been right, in the Court of Appeal, to hold that section 32A was consistent only with the proposition that a claimant has only one cause of action for all personal injury consequences of a wrongful act or omission. She said, “The wording of the section is not consistent with the notion that the same exposure to asbestos can and does give rise to separate torts in respect of each consequence. Because he has only one cause of action, as soon as a claimant knows he has one personal injury consequence, he must sue for all such possible consequences.” So Parliament has legislated, in section 32A, on the assumption that the “single action rule” is correct. See also Ministry of Defence v AB [2010] EWCA Civ 1317 paragraph 82.

In Durham Lord Mance SCJ said that no cause of action arises from exposure or inhalation alone (paragraph 52, citing Rothwell).Damage is only incurred when mesothelioma develops. At paragraph 64, Lord Mance said that “No cause of action at all exists until mesothelioma actually develops”. Development of mesothelioma is a “pre-condition” for the application for the principle in Fairchild. “The cause of action exists because the defendant has previously exposed the victim to asbestos, because that exposure may have led to mesothelioma, not because it did, and because mesothelioma has been suffered by 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” mesothelioma .....” (at paragraph 65). As Lord Mance explained at the start of his judgment, the particular features of mesothelioma have led the courts to develop a special rule about liability for mesothelioma. This is that (leaving aside exposures which happened less than 10 years before death) when a person gets mesothelioma, each person who has, in breach of duty, exposed him to a significant amount of asbestos dust and thus created a “material increase” in the risk of his getting mesothelioma will be held to be jointly and severally liable in for his mesothelioma.

I was initially troubled by these dicta in Durham which seem to suggest that a claimant has a cause of action for mesothelioma and that that cause of action is only completed when a claimant contracts mesothelioma. This is a suggestion which would be inconsistent with the “single action rule”, at least in a case in which a claimant develops mesothelioma after earlier developing an actionable disease caused by exposure to asbestos, such as asbestosis, diffuse pleural thickening or (rarely) symptomatic pleural plaques.

However, I have concluded that these dicta do not have this effect. There are three reasons why. First, the cases which were before the Supreme Court in Durham appear to have been cases where the claimants were suing for mesothelioma only, so that there was need for, and no, discussion of the relationship between this supposed cause of action and any prior cause of action for other asbestos-related disease. Second, none of the JJSC adverts to the single action rule. Parliament’s assumption in enacting section 32A of the 1981 Act that the single action rule is correct is not, of course, decisive, but it seems to me that if the Supreme Court had wished to indicate that the rule, or Parliament’s assumption, was wrong, or did not apply to mesothelioma if it followed on from asbestosis, it would have needed to say so expressly. Third, while it is inconceivable that Bowen LJ in Brunsden could have had in mind diseases with a long latent period, Lord Hoffmann in the passage in Rothwell to which I have referred clearly did.

I have already referred to Dowdall. The following points emerge from paragraphs 12-16 and 45 of that judgment, and the citations there from the Durham case.

It follows that once a claimant who has been negligently exposed to asbestos develops a significant injury (such as asbestosis, diffuse pleural thickening, or symptomatic pleural plaques), he has a cause of action. Time starts to run for the purposes of section 11. It is common ground that he has a separate cause of action against each defendant (if there are more than one) who has negligently exposed him to asbestos. The point when he knows (or ought reasonably to have found out) that he has a significant injury, and who exposed him to asbestos, is his date of knowledge for the purposes of section 14.

He must bring a claim for all the consequences of the tortious exposure to asbestos at the same time. He has a choice: his claim for damages may include a claim for damages in respect of the risk of suffering later more serious injury, or he may make a claim for provisional damages pursuant to section 32A Senior Courts Act 1981 in respect of such potential injury. Time does not start to run again if he later develops asbestosis, nor does he have a new date of knowledge when he finds out that he has developed asbestosis.

Discretionary exclusion of the primary limitation period

Section 33(1) of the 1980 Act gives a court power to direct that section 11 should not apply to a claim or cause of action, if it is equitable to do so. The court must take into account the degree to which (1) the provisions of section 11 prejudice a claimant and (2) any discretionary exclusion would prejudice a defendant. The court must take into account “all the circumstances of the case” (section 33(3)).

Section 33(3) directs a court to have regard, “in particular” to 6 things. They include (a) the length of, and reasons for, the claimant’s delay; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by either side is or is likely to be less cogent than if the action had been brought within the limitation period; (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 claimant for information; (d) the extent to which the claimant acted promptly and reasonably once he knew whether or not the act or omission of the defendant to which the injury was attributable might then be capable of giving rise to an action for damages; and (e) the steps, if any, taken by the claimant to get expert advice, and what advice he got.

The decided cases show that the availability of an action against negligent legal advisers may be relevant to the exercise of the section 33 discretion, but that such a claim is more likely to be relevant if it is completely straightforward; classically, where solicitors have themselves missed a limitation period. The possibility of a claim against former solicitors is not the same as the availability of a claim (subject to limitation) against a negligent defendant, and damages are only payable for the loss of the chance. The cases also show that one of the relevant circumstances is the strength of the claim against the defendant. Neither of these factors, however, is one on which Parliament has put special emphasis.

Abuse of process

Mr Platt QC submitted that the court should apply especially robust rules to litigation about industrial injuries which have a long latent period. There are about 2000 mesothelioma cases every year, and many thousands of cases about industrial deafness. It is “mass market” litigation. Insurers are heavily involved, operating industry understandings and agreements. Claims such as these can be made against several different employers, and because they surface long after the relevant employment has ended, cause particular forensic difficulties for employers and for insurers. Claimants should not only be discouraged, but should be stopped, from bringing successive claims for the same injury against different employers. This is fairer to employers, and a much more efficient use of lawyers’ time, and of the courts’ resources.

This is an attractive submission. An employee has a separate cause of action against each employer who has contributed to his injury. While the evidence about the employee’s injury may be the same, the evidence about each tortfeasor’s conduct will necessarily be different. But it is tidier from the employers’ point of view if their liability inter se for the injury is decided at the same time as the employee’s claim. But it does not follow that an employee must sue all employers at one go, nor, if he does not, that that is necessarily oppressive. It will all depend on the facts.

The real difficulty which arises for defendants in asbestos cases is caused by the different rules about their liability inter se, depending on whether the employee’s claim is for a divisible injury, such as asbestosis, or for an indivisible injury, such as mesothelioma. The reason why the Defendant’s insurer is unhappy about the current claim is that, if it proceeds and is successful, the Defendant will be liable for the whole of the indivisible injury in this case, and will have to try and obtain a contribution from Mr Lloyd’s other employers, some of whom having contributed, pro rata, to the full and final settlement of Mr Lloyd’s claim for asbestosis, may resist such a claim. But that is a consequence of the different rules which govern liability for asbestosis and for mesothelioma. I somehow doubt that the Defendant would have suggested that it was an abuse of process if this claim had been merely a claim for the Defendant’s aliquot share of liability for Mr Lloyd’s asbestosis (rather than a claim for damages for mesothelioma).

There is a particular reason, on the facts of this case, why I do not consider that I should strike out the current claim as an abuse of process. This is that the Defendant’s insurer has known for a long time that Mr Lloyd had a potential claim, but, first, relying on the Bolton case, and then on the existence of the Trigger litigation, including its outcome in the Court of Appeal, took the approach that, not only was Mr Lloyd’s claim weak, but that its indemnity was not available against that claim. I do not consider that there is anything oppressive or harassing about the Claimant’s conduct on the facts of this case.

I have set out the facts at some length, but they boil down to this. The Defendant’s insurers were notified of the likelihood of a claim in 2008. Their position was that they would not talk pending the outcome of the Trigger litigation. Corries cannot be criticised for pursuing the other employers, and obtaining a settlement for Mr Lloyd from them. His clear instructions were that he wanted to settle against those employers on a full and final basis. The Defendant could have obtained the protection of such a settlement of Mr Lloyd’s cause of action against them by talking to Corries. Instead they chose to resist any claim until the Trigger litigation had been decided. Excess might have escaped liability completely if the decision of the Court of Appeal had been upheld in the Supreme Court. But by choosing that approach, it seems to me that Excess took the risk that if they lost in the Supreme Court, they might be exposed to liability in respect of claims such as this, which they had not settled pending Trigger, and which, in the meantime, might have become (as this claim did) more expensive.

Mr Lloyd only had one cause of action against each of his employers. But he had a separate cause of action against each. I do not consider that, on the facts of this case, there is any abuse in settling claims arising from the causes of action against the former employers whose insurers did play ball, and not wasting time pursuing the employer whose insurer would not. Inconvenient as it may be for the Defendant to be facing a bigger claim now than the claim it fended off while Trigger was pending, I do not consider that it has suffered any injustice. It took a calculated risk, and the gamble did not come off. It presumably took that risk with its eyes open, because it was significantly commercially advantageous to do it.

Limitation

There are three questions:

When did Mr Lloyd’s cause of action accrue?

The evidence is not clear. None of the medical experts was cross examined, so I have done the best I can with the written evidence. I do not accept Mr Davies’ view that Mr Lloyd had asbestosis as early as 1993. The fact that he did not examine Mr Lloyd is of slight, if any relevance to this issue. What is more important is that, as far as Mr Kilvington was able to tell me when I asked him, Dr Davies’ opinion to this effect was based on the same evidence as were those of the doctors who had examined him earlier. I think it improbable that Mr Davies has reliably spotted something from the early X-rays which the other doctors who had looked at them have missed, particularly as the asbestosis which was detected in the 2008 CT scan was only detectable by CT scan, and was very slight in extent.

I also consider that Dr Davies’s views about the levels of disability which Mr Lloyd suffered between 1993 and 2005 (which he attributed to asbestosis) are unlikely to be correct. They differ markedly from those of Dr Butland and Dr Catterall, and it seems to me that Dr Davies has significantly underestimated the potential importance of Mr Lloyd’s smoking, and of his weight gain. Neither Dr Catterall nor Dr Butland, both of whom, unlike Dr Davies, examined Mr Lloyd (after 2005), reported the high levels of disability suggested by Dr Davies.

On the evidence as a whole, I do not consider it probable that Mr Lloyd had symptomatic pleural plaques at any stage. First, the medical evidence does not point unequivocally in that direction, and second, it is common ground that symptomatic pleural plaques are very rare. Dr Davies, in his report, opined that Mr Lloyd’s did not have diffuse pleural thickening. He did not clearly state that Mr Lloyd had pleural plaques which were not symptomatic, but on balance, I think that is what he meant in paragraph 9.1a of his report. Neither Dr Butland nor Dr Davies suggested that Mr Lloyd had symptomatic pleural thickening. There is some suggestion to this effect by Dr Catterall, and Dr Ellis, but I prefer the views of Dr Butland and Dr Davies on this issue.

My conclusion is that Mr Lloyd developed asbestosis about the time of, or shortly before, the 2008 scan, and that at that stage it caused him some disability, but not as much as 20%. That is when he suffered damage, and, on the balance of probabilities, that was caused by his occupational exposure to asbestos. He may well have had symptomatic asbestosis before it was diagnosed in October 2008, but I am unable to say on the balance of probabilities when that was. I therefore find that Mr Lloyd had a significant injury for the purposes of section 14(2) of the 1980 Act no earlier than 6 October 2008. That was also his date of knowledge, for the purposes of section 14(1).

His cause of action for asbestosis against the Defendant was, therefore, time-barred (subject to discretionary exclusion) three years after 6 October 2008. The first action, for asbestosis, against two former employers other than the Defendant, was commenced on 12 September 2011, before that period expired.

The delay is between 6 October 2008 and 31 January 2014. For most of that period, Excess were resisting claims, on the basis of the Trigger litigation. So whatever the reasons for delay while Trigger was pending, the issue of proceedings against the Defendant before 28 March 2012 (or more likely, 28 days from that date) would not have put the Defendant in a better position than it would have been had proceedings been issued at the end of April 2012. The reasons for delay between that date and January 2014 are not very clear, and to the extent that they are, not very compelling. Two sets of new solicitors were instructed, and time was taken transferring papers between solicitors. An unhelpful advice was received from counsel on accord and satisfaction (a point which Excess abandoned at this hearing).

The only practical difference which issuing the proceedings in April 2012 would have made is that Mr Lloyd was still alive then. But he died very shortly after that, and it is not realistic to suppose that the Defendant could have tested his evidence in that short period. So I do not consider that the Defendant has suffered any practical forensic disadvantage as a result of the delay between April 2012 and January 2014. The vast majority of the forensic difficulty faced by the Defendant comes from the long latency periods for asbestosis and mesothelioma, most of which elapsed before the cause of action accrued.

The conduct of Defendant (acting through its insurer) after the cause of action arose is relevant, for the reasons I gave when considering the abuse of process argument. I consider that to a significant extent, the Defendant has brought this state of affairs on its own head.

Mr Lloyd, through Corries, did act promptly and reasonably once he knew he had a cause of action against the Defendant. The Defendant was notified of the claim in 2008. It chose to rely on the Trigger litigation, rather than to engage with the claim. If Corries had made a conscious decision not to continue to pursue the Defendant in the first claim when it was widely known that Excess was refusing to settle claims pending the outcome of Trigger, they could not have been criticised for that. It cannot, in my judgment, make any difference that, instead, by the time they issued proceedings and settled with the three other former employers, they seem to have forgotten what they knew about Excess.

Mr Lloyd took all the legal and medical advice which it was reasonable for him to take in the circumstances.

In my judgment, the balance of the factors in section 33(3) is clearly in favour of allowing this claim to proceed. The next question is whether any of other of the relevant circumstances, not expressly referred to in section 33(3), tilts the balance the other way. Mr Platt QC referred, in particular, to three.

First, he argued that this is a weak claim. On the Defendant’s case, Mr Lloyd was only employed for 5 weeks, at the Llandarcy plant. However, those 5 weeks were during the summer. The Claimant’s case, based on the witness statements of Messrs Morgan, Miller and Woods, is that part at least of that period is likely to have been during the summer shut-down there. This was a large industrial plant, with long lengths of piping. Those pipes were all lagged with asbestos lagging. During the shut-down the lagging was stripped off, and Mr Lloyd would then have inspected and where necessary, welded the pipes. The welds were also protected with asbestos in order to prevent them cooling too fast. The lagging was then replaced, and this involved mixing asbestos powder in large drums. During the shut-down period, the whole plant was very dusty and dirty.

I do not need to decide how long Mr Lloyd was employed by the Defendant. It seems to me that even if the Defendant is right, and Mr Lloyd was only employed by it for 5 weeks, the Claimant has an arguable case that it is likely that Mr Lloyd would have had an exposure to asbestos during that period which was more than de minimis (see the views of Dr Butland, which I have already referred to). Even if some of it is “vicinity” or “bystander” rather than direct exposure, the evidence as a whole suggests significant exposure. Given what was then known about asbestos, as a result of the 1965 Newhouse and Thompson report, the Claimant also has an arguable case that that exposure was negligent. Nor am I impressed by the argument that the Claimant’s evidence is obviously unreliable. Mr Lloyd’s second statement is more detailed than the first, but I do not consider that there are significant inconsistencies between the two statements. When Corries served the first statement on 11 November 2009, they told Downlands that it was likely that there would be a more detailed statement from Mr Lloyd. There may be an argument to be had about whether, on the medical evidence, Mr Lloyd in fact had mesothelioma. But it is plainly arguable that he did. So to the extent that the strength of the claim is relevant, that factor does not point against the exercise of the section 33 discretion in the Claimant’s favour.

Second, Mr Platt QC argued that Corries’ conduct of the first claim was plainly negligent, and that that meant that the Claimant had an alternative remedy against Corries. She should be left to that, rather than being permitted to sue the Defendant out of time. I am not persuaded by that argument. I do not consider that a claim against Corries in negligence would be straightforward. This is not a case where Corries missed a limitation period.

In proportion to its value, this was not a simple claim to litigate. The file shows that Corries worked hard to identify the relevant employers and their insurers, taking steps to restore one to the Register. It is true that, by the time they were close to issuing proceedings, they appear to have forgotten that they had traced insurers for the Defendant and for BJ. But they had made strenuous efforts to identify, from a complex web of companies, which company was the right Woodhall Duckham defendant. They had helped Mr Lloyd to make an unsuccessful benefits claim in 2004, and had obtained medical evidence to support a claim for Mr Lloyd which, for much of the relevant period was seen both by them and by counsel as being a marginal claim which was on the cusp of actionability.

I am not persuaded that if they had remembered that they had identified Excess as the Defendant’s insurer, that would have made any difference. I do not consider, on the balance of probabilities, that Excess would have agreed, had they been approached, to a limitation amnesty, or to the entry of judgment against the Defendant for damages to be assessed. At that stage, Excess were taking an aggressive approach to such cases, and do not seem to have been willing to concede anything. Their answer, had they been served, would have been that they were not willing to contribute to the settlement, as they did not consider that the indemnity in the relevant policy covered the Defendant’s liability. Moreover, it is clear that when approached, they also thought that the underlying claim against the Defendant was weak. Bolstered by the decision in the Court of Appeal, they would not have looked at the first claim until after the decision of the Supreme Court; and by then, Mr Lloyd had mesothelioma.

Mr Platt QC argued that Corries acted improperly in putting pressure on Mr Lloyd to settle the claim for very little money at a time when, in hindsight, it was actually much more valuable than it seemed, because it is likely that Mr Lloyd had mesothelioma by then. But Corries only had the expert medical evidence which they had, and the file shows that when Mr Lloyd gave them further information about his hospital visit in July 2011, that was analysed. The difficulty is that at the time the first claim was settled, even though we now know that Mr Lloyd was probably very ill, the expert medical evidence did not support anything other than a borderline claim. Corries might have obtained a somewhat bigger settlement for Mr Lloyd if they had remembered that they did know who BJ’s insurer was; although, in the event, BJ did contribute to the settlement. At the time the claim was settled, the file shows that Mr Lloyd was not pressurised into giving up a realistic aspiration for a much bigger claim: he and the Defendants were but a few hundred pounds apart. Corries were litigating with ATE insurance, and they were right to tell Mr Lloyd what the consequences would be if he rejected the defendants’ offer and then did not better it at trial. He himself sensibly acknowledged that there was an unpredictable element in going to trial.

Third, Mr Platt QC argued that this was just like a case in which solicitors issue in time, but then negligently fail to serve proceedings, and then issue a second set of proceedings once the limitation period has expired. I reject this submission. The first claim, against different defendants was issued and served within the limitation period. The second claim is a different claim; it is against a different defendant, who has not previously been sued, and did not contribute to the settlement of the first claim.

My conclusion is that none of these circumstances tilts the balance against allowing this claim to proceed.