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PI and Civil Litigation

Law - practice - procedure

Anthony Gold Solicitors , 30 OCT 2014

John Patrick Dowdall v (1) William Kenyon & Sons Ltd (2) BECA (Engineers) Ltd (3) Greenield & Payne Ltd [2014] EWCA 2822 (QB)

John Patrick Dowdall v (1) William Kenyon & Sons Ltd (2) BECA (Engineers) Ltd (3) Greenield & Payne Ltd [2014] EWCA 2822 (QB)
Settlement – abuse of process – limitation

High Court, Queen’s Bench Division
Andrew Edis QC (sitting as a Deputy High Court Judge)
12 August 2014

Summary
The court allowed the claimant to bring his claim for mesothelioma against his past employers despite previously settling a claim for asbestos related disease against different employers.

Detail
The claimant had brought proceedings against seven of his past employers in relation asbestosis and pleural plaques which settled in 2003 for a lump sum of £26,000. Although there was a recognised risk the claimant would develop mesothelioma a claim for provisional damages was not pursued. This first set of proceedings did not include the defendants in the current action as the claimant’s solicitors had been unable to identify the insurers of second and third defendants and had not identified the correct name and identity of the first defendant.

Subsequent to the settlement in 2003, the claimant developed mesothelioma. His solicitors identified that the current defendants had not been included in the first proceedings and were now able to identify these defendants’ identity and insurers.

The defendants argued that: (1) it was an abuse of process for the claimant to proceed against them when he had already settled a claim in full and final settlement of his asbestos related condition, (2) the first settlement satisfied and extinguished all of the claimant’s causes of action, and (3) limitation applied and the court’s discretion should not be exercised as the defendants now faced financial hardship in paying damages above the amount they would have paid had they been named in the first proceedings.


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The court held that: (1) it was not an abuse of process for the claimant to proceed, as the defendants were not parties to the first action and the claimant had not deliberately omitted the defendants from the first proceedings but had done so because he and his solicitors had ‘honestly’ been unable to uncover the identity of the insurers at that time, (2) the first settlement did not prevent a further settlement as the first settlement had not been intended to represent the full measure of the claimant’s loss and had deliberately excluded any sum which would follow from the development of mesothelioma, and (3) although the claim against all three defendants was statute barred the court exercised its discretion under s 33 of the Limitation Act 1980 and allowed the claim to proceed on the basis that the defendants’ prospects of defending the claim had not been prejudiced in any great weight by the delay.

Comment
It is now easier than it was to identify insurers for defendants in asbestos cases as the Insurance industry set up a tracing service back in 1999, now known as The Employers’ Liability Tracing Office. Claimants who have settled in the past against only some of their employers without provisional damages and who have subsequently developed Mesothelioma are not necessarily precluded from proceeding against their other employers although they will need to convince the court to exercise its discretion.
Summarised by Joseph Carr, Anthony Gold
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