Myall v Ministry of Defence & Anor

This is an appeal from a case management decision of Master Giddens on 13 April 2017 refusing the Claimant’s applications:

Permission to appeal the Master’s decision was given by the single Judge, Mr Justice Lavender, by his order of 25 May 2017. With the trial date in this case listed for 17 July 2017, in just over 2 weeks’ time, I told the parties of the result immediately following the hearing on Thursday 29 June 2017, notifying them that my reasons would follow.

I allowed the appeal to the extent of giving permission for the additional witness statement and allowing the amendment. I declined to order a split trial at this stage, leaving that for further consideration by the trial judge. These are my reasons.

I start with the observation that half an hour over the telephone is generally the way that such applications are listed to be heard before the Queen’s Bench Masters; in the vast majority of case that is sufficient. In this particular case, however, with no criticism whatever of listing or of the learned Master, who is very experienced in this area, half an hour over the telephone was insufficient time, in my view, to permit the traversing of the details of the pleadings and the evidence so as to enable a sufficiently detailed appreciation of the case, the issues and the state of the evidence.

On the face of it, the Master was faced with a very late statement with insufficient explanation for the full extent of the delay together with an apparently contingent amendment. Allowing in the statement and permitting the amendment would, on the Claimant’s own case going into that application, have necessitated moving the trial window. On top of that there was an application for a split trial, also made very late, based on new medical treatment options but without any medical evidence in support. It was, in short, an application made by the Claimant with sparse detail; as it turned out there were important gaps which needed to be augmented by lengthy argument in order for the whole picture to be seen.

The hearing before me took over three and a half hours, after which I was able to conclude as follows: that Mr. Shadforth’s evidence, whilst providing potentially important support for the Claimant, itself raises no new factual issues about which the Defendants might need to seek further evidence themselves. Mr. Shadforth’s evidence is valuable to the Clamant as it appears to be independent evidence from someone who was responsible for health and safety at the Shoeburyness depot at the relevant time. The evidence lends further detail to, and therefore supports, the Claimant’s evidence of the presence of asbestos and asbestos dust attributable to brake pads kept at the Shoeburyness depot. However, although it contains some further detail, the essential evidence given by Mr. Shadforth is not a departure from that which has already been served on behalf of the Claimant. Mr. Vandyck for the Second Defendant suggested that the Second Defendant would wish to search for documents regarding investigations in the period after the Claimant’s employment finished in 1997 as going to the credibility and reliability of Mr. Shadforth evidence, however documents going to internal investigations or evaluations of the risk of asbestos held by the Second Defendant up to and after 1997 would already have been discoverable in the case as the issues currently identified in the pleadings would have necessitated such disclosure.

Mr. Seabrook for the First Defendant accepted that Mr. Shadforth’s evidence raised no new issues so far as his client was concerned. He relied instead on the Claimant’s own concession made to the Master that amendment of the Particulars of Claim was consequent on the statement and that allowing both the statement and the amendment would necessitate the trial window going off.

As it has turned out, the trial window then went off for other reasons. The admission of Mr. Shadforth’s witness statement need not now affect the trial date of 17 July, for the reasons I have given. It is said that the expert engineers should be able to see Mr. Shadforth’s evidence before trial and that with 2 weeks to go there will not be enough time for them to do so. However, the engineers have already given their opinions based upon the two factual scenarios deriving from the competing evidence of, on the one hand, the Claimant and Ms Allen and on the other, the Defendants’ only factual witness, Mr. Hartopp.

Mr. Shadforth’s evidence does not, as I have already pointed out, introduce a new factual scenario for the engineers to deal with. It simply supports the existing evidence on behalf of the Claimant. Mr. Shadforth’s evidence will in my view make no difference to the engineers’ consideration of the issues arising or affect their joint statement already served.

The Master correctly applied stages 1 and 2 of the three stages identified in the case of Denton v. White [2014] 1 WLR 3926. I raised with counsel the question of the applicability of the relief from sanctions criteria to late service of witness statements but having been taken to the Court of Appeal decision in the case of Chartwell Estate Agents Ltd v. Fergies Properties SA [2014] EWCA 506, I am satisfied that the Denton criteria are properly to be applied. It is said that the Master failed to identify and evaluate all circumstances relevant to the overall justice of the case, i.e. the third and last of the Denton stages. I have already observed that in my view the Master was in this case very seriously hampered in his task by the fact that these applications came at the end of a busy day. He had just half an hour for hearing and deciding all three matters, any one of which could properly have taken half an hour or more on its own. Furthermore, no doubt to save time, the Claimant’s counsel had made a number of concessions which would have appeared to cover all the important considerations for the purposes of the third Denton stage, in the process sidelining matters which, with the benefit of far more time at the hearing before me, I have been able to understand more fully. Looking at his judgment, the Master plainly did direct himself to the third of the Denton criteria, however, for the reasons I have already given and through no fault of the Master, the available time at the hearing did not allow for a full and detailed appreciation of all the maters relevant to that third consideration.

I am accordingly going to allow this appeal and permit the statement of Mr. Shadforth to be served and used at trial. To the extent that the statement currently deals with the possible presence of asbestos from sources other than brake pads the Claimant does not rely on such evidence and accordingly these passages will be deleted, as discussed at the hearing.

I turn to the application to amend. It is unfortunate, perhaps, that the Claimant’s counsel at the hearing before Master Giddens appeared to make the amendment contingent upon the admission of the evidence of Mr. Shadforth. However it has always been the Claimant’s case (see paragraph 3 of the Particulars of Claim) that the First Defendant retained some control over the depot at Shoeburyness. The Defendants’ own witness, Mr. Hartopp, speaks in his witness statement of MOD officers coming in and conducting inspections there. Thus the factual basis for a plea of the applicability of the 1987 Regulations to the First Defendant was already in existence on the pleadings and/or in the Defendants’ own witness evidence. That alone would have entitled the amendment quite apart from the further evidence of Mr. Shadforth. Further, the amendment would not have affected the timetable much, if at all, as consideration of the applicability of the 1987 Regulations had already been pleaded against the Second Defendant. I can now see (as the reports have now been served) that the 1987 Regulations have been considered by all experts, including the First Defendant’s expert. Had the Master had time to be taken to the detail of the pleading so as to appreciate all of this, I am sure that he would have permitted the amendment. As it was, confronted with the Claimant’s own concession that the amendment would stand or fall with his decision on the late admission of Mr. Shadforth’s evidence the Master inevitably, having ruled that out, also disallowed the amendment. Having now had time to understand the case in more detail, I propose to allow the amendment.

Finally as to the split trial, the Claimant invited the Master to order a split trial to allow for the possibility of his being assessed positively for treatment by immunotherapy in order to prolong his life expectancy. As I have already pointed out there is no medical evidence in support of such treatment for the Claimant; in those circumstances I am not prepared, on the strength of an unsupported assertion by the Claimants solicitor, to order a split trial at this stage. I note however, that the trial listing for the 17 July 2017 has a three day time estimate, which may prove to be insufficient for all issues of liability and quantum to be dealt with. Nevertheless, the manner in which the issues are dealt with at trial will be a matter for the trial judge; I would not wish to tie their hands at this stage, particularly as I shall not be the trial judge. Any further application in this regard should be made to the trial judge when he or she is known.

As is usual on any amendment, there will be an order that the First Defendant’s costs of and occasioned by the (small) amendment to paragraph 13 of the Particulars of Claim, if any, are to be paid by the Claimant. So far as the costs of the applications and of the hearing before the Master are concerned, I take the view that the Claimant was to a large extent responsible for the delay in making those applications, which then proceeded before the Master, and were argued, on a different basis to the way matters were eventually canvassed before me.  In those circumstances the order for the costs of the applications and of the hearing before the Master will be the Defendants’ costs in the case.  For the avoidance of any doubt this means that if the Claimant succeeds at trial and obtains a costs order in his favour, the Defendants will not be obliged to pay this part of the costs incurred by the Claimant; on the other hand if the Defendants succeed at trial, obtaining a costs order in their favour then the Claimant will be obliged to pay the Defendants’ costs.

Finally as to the costs of the appeal before me, in my judgment the right order, reflecting both the changed way in which the arguments were made and the fact that one issue (split trial) was not decided in the Claimant’s favour, is that the Defendants should pay 70% of the Claimant’s costs of the appeal.  All costs are to be subject to detailed assessment, if not agreed.