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PI and Civil Litigation

Law - practice - procedure

Anthony Gold Solicitors , 28 JUL 2014

Christine Yates (PR of the Estate of Gladys May Dalton, Deceased) v (1) HMRC (2) APIL [2014] EWHC 2311 (QB)

Christine Yates (PR of the Estate of Gladys May Dalton, Deceased) v (1) HMRC (2) APIL   [2014] EWHC 2311 (QB)
Summary by Joseph Carr, Anthony Gold Solicitors

Procedure – deceased asbestos claims

High Court, Queen’s Bench Division
Master Victoria McCloud
17 July 2014

Summary
Master McCloud sets out a new protocol that applies in deceased asbestos claims and deals with requests for disclosure from HMRC of the HMRC employment history of the deceased.

Detail
In what was a departure from previous practice HMRC had taken the view that they could not lawfully disclose HMRC employment schedules in respect of deceased persons outside the scope of issued court proceedings. HMRC had concluded that since s 1 of the Data Protection Act 1998 (DPA 1998) defined “personal data” as data relating to a living individual, and there was no third party right under the act, that when the subject of the data request was deceased, it was right to refuse disclosure under the DPA 1998. HMRC also argued that the court had no jurisdiction to order disclosure against them under CPR, r 31.17 as this power assumed the existence of an issued claim.

The effect of this was that potential claimants, acting on behalf of the estate or as dependents could no longer obtain employment histories that were needed to be able to identify and sue the correct tortfeasors. Master McCloud listed the issue for hearing and the Association of Personal Injury Lawyers (APIL) joined in as co-respondents due to the widespread significance of the problem. After the application was issued, an amendment was proposed to the Deregulation Bill to deal with this issue but the obstacle would remain until any such bill became effective.
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Rather than arguing the technicalities of the law in the face of the new government proposals, the parties ultimately set aside their differences over legal interpretation and instead asked for an approved interim procedure for handling employment history requests. Master McCloud sets this out new procedure in the First Schedule to her Judgment. It was therefore no longer necessary to address the original issues arising in the Application.

The procedure applies when claimant’s representatives in deceased asbestos claims requests disclosure from HMRC of the employment history of the deceased. Claimants are required to issue at the Royal Courts of Justice against Persons Unknown and to then apply by email for an order for disclosure by HMRC, which must also be served on HMRC. This must be accompanied by a witness statement, draft order and completed disclosure form (as set out in the schedules to the Judgment).

Comment
This Judgment will make for interesting reading to those unfamiliar with the case management of the ‘mesothelioma list’ at the High Court, where fluidity of procedure is required and one of the first considerations is “How long does the claimant have to live?”.
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