Non-party disclosure and CPR 31.17 –success for claimants in historic asbestos cases continues

A recent decision of the High Court on appeal, reversing an earlier dismissal of a claimant’s application for non-party disclosure, is another favourable result for claimants in historic asbestos claims.

Background

In Sparkes v London Pension Funds Authority & Leigh Academies Trust [2021] EWHC 1265 (QB), the deceased was reportedly exposed to asbestos whilst employed as a teacher, and it was deemed “almost inevitable” that exposure had occurred during the construction of a new school building in 1973.

The non-party respondent to the disclosure application was the Leigh Academies Trust, who reportedly held “boxes of old documents” relating to building and maintenance works at the school.

Having sought disclosure from the Trust, the claimant’s solicitors were provided with a meagre 46 pages of documentation and considered it likely, based on what they had been told, that the Trust held significantly more potentially relevant documentation. The claimant’s solicitors offered to visit the site to inspect the documents, and to bear the photocopying costs. Nonetheless, the Trust maintained that it had provided all the relevant documents relating to the time period concerned.

The claimant’s solicitors made a further, wider request, for all documents relating to the maintenance, renovation, or demolition works at the school, not limited to the deceased’s period of employment. The Trust failed to respond to the second request, and the claimant applied for non-party disclosure under CPR 31.17.

Application hearing

Master Thornett dismissed the application on the grounds that it was vague, lacked specificity, and imposed a disproportionate burden on a third party.

Appeal

The claimant appealed on the grounds that Master Thornett had failed to apply the proper test and to consider the potential importance of the documents, had considered irrelevant matters, and had failed to consider relevant matters.

Murray J allowed the appeal on all four grounds. He concluded that the Master was wrong in his application of the test under CPR r 31.17(3) to the relevant facts, took into account irrelevant factors, gave insufficient weight to relevant factors, and failed to balance the relevant factors fairly in the scale. He considered that the Master had misunderstood the application and therefore failed to properly exercise his discretion.

The most salient factor was seemingly that the claimant had been informed that further records existed, yet had only been provided with a small sample, despite repeated offers to visit the site and inspect the documents. It was deemed, therefore, that the Trust was not being asked to undertake a disproportionate, onerous, vague, or unfocused search. Further, it was found that the Trust had been wrong to assume that records falling outside the dates of the Claimant’s employment were automatically immaterial. It was considered likely that earlier and later records, particularly those documenting the installation and removal of asbestos, “may well” have been relevant, satisfying the test referred to in Three Rivers (No 4).

Costs

Ordinarily, under CPR 46.1, a non-party is allowed its costs of the application and of complying with the order. However, on this occasion, owing to its failure to comply with the claimant’s reasonable requests, the conventional order was reversed, and the Trust was ordered to pay the claimant’s costs of the application and the appeal. The court’s decision may also have been influenced by the non-attendance of the Trust at the appeal hearing.

Comment

Whilst those in the education sector may not be liable directly for asbestos exposures, they may well hold historic records relevant to such claims. Murray J usefully reinforced the principles of third-party disclosure and reiterated that the threshold test set by CPR r 31.17(3) is that documents “are likely to support the case…” if they “may well” do so. The test is not whether, on the balance of probabilities, the documents are likely to support the case.

Third party disclosure applications can be time-consuming to deal with and be wasteful of costs that might be best spent elsewhere. The decision illustrates the importance of affording non-parties sufficient time to respond to disclosure applications and reducing the burden of compliance by offering to inspect the records and meet the photocopying costs. These factors ensured the success of the claimant’s appeal, with the added bonus of a favourable costs order. From a defendant and third-party perspective, it serves as a warning to conduct a thorough disclosure exercise and give due consideration to claimant requests to inspect documentation. The Trust’s silence and inaction were decisive in their downfall in this case.

The authors would like to acknowledge the assistance of Paul Revill, paralegal at CMS Sheffield, in preparing this article.