Procedure: Brooks v Boots Co Ltd (23 October 1998) High Court, Queen's Bench Division

This was an action by the administrators of the estates of six persons who had all worked assembling gas masks at Boots Co Ltd's factory at different periods between 1939 and 1945. All of the deceased had been diagnosed with mesothelioma, the earliest diagnosis made in 1967 and the latest in 1991. The administrators claimed that the disease and the subsequent deaths were caused by exposure to asbestos during the course of their employment with Boots Co Ltd. Boots Co Ltd claimed that the actions could not proceed as they were time-barred under Section 11 of the Limitation Act 1980. The court held that in five of the six cases the actions were time barred, with the balance of prejudice falling in favour of Boots Co Ltd. In exercising its discretion under Section 33 of the Limitation Act 1980, an important consideration for the court was the relative strengths and weaknesses of the administrator's case against Boots Co Ltd. The court concluded that a fair trial could not be conducted regarding events which took place some fifty years ago. The evidence which would have to be relied upon by Boots Co Ltd in disproving causation and in showing that it had discharged the relevant duty of care under the Factories Act 1937 would have been much weakened by time. Regard was had to the latent nature of the disease, but this did not explain the substantial delay before the actions were brought. Another factor also taken into account was the fact that all but one of the plaintiffs were legally aided and so the costs in the action would be largely irrecoverable by the Boots Co Ltd. A desire on behalf of the families of the deceased to force the defendant to acknowledge responsibility was not a sufficient reason for bringing the actions. In one action, however, the balance of prejudice fell on the other side. In this case, unlike the other five actions, the latency period of the disease had been much longer with diagnosis only occurring in 1991. This action was therefore allowed to proceed. (New Law Digest, 23 October 1998)