Second bite of the cherry? Bringing a second action against different employers for development of mesothelioma: abuse of process, cause of action estoppel and discretion under s33 Limitation Act 1980 considered

PI_Sabrina_Hartshorn By Sabrina Hartshorn

 John Patrick Dowdall v William Kenyon & Sons Limited & Beca (Engineers) Limited and Greenield & Payne Limited [2014] EWHC 2822 (QB)

Would an action against employers who were unidentifiable at the time of an initial claim against 8 other employers in 2003 succeed where it was argued that such proceedings were an abuse of process of the court,  that there was cause of action estoppel and where the claim was statute barred and required an application under s 33 Limitation Act 1980?

This claim was one for damages arising out of the Claimant’s contraction of pleural mesothelioma. The issue was whether or not a Claimant could maintain an action against 3 companies which had employed him during a long career when he was exposed to asbestos by many employers, having already bought a claim against 8 other employers which settled in 2003.

The first action was commenced in March 2001, the Claimant having been diagnosed in June 1998 with asbestosis and pleural plaques. The claim was for this and included a claim for provisional damages for the risk that he would develop a serious disease or condition – namely a 10% risk of developing malignant mesothelioma of the pleura. The 3 defendants were not initially sued for the following reasons: Defendant 1 was unable to be traced due to a misspelling of its name and no insurers could be identified for Defendants 2 and 3 through the usual channels that existed in the late 90s.

The court considered that the case was not an abuse of process as the current Defendants were not parties to the first action and were therefore not vexed in it, there was no evidence of the Claimant having manipulated the process of the court as the decision not to sue these Defendants was honestly made as the Claimant and his insurers had been unable to discover an insurer liable to meet the claim against them.

There was no cause of action estoppel where the parties were not the same in both actions. However the court considered the effect of the 2003 settlement on the claim and whether or not the claim had been compromised given that the claim in 2003 had included a claim for the risk of mesothelioma. In considering this, the court asked itself whether or not the Claimant had been fully compensated for the damage which he now sues and the answer to this was no. The court’s rather kind view on this was that being compensated for the risk was very different to claiming for the contraction of mesothelioma. The Claimant had only been compensated for the risk not for the development of it.

Looking at the issue of limitation, the Claimant accepted that his injury was significant in June 1998 and that he had the requisite knowledge in respect of Defendant Two and Three for the purposes of 14(1)(b) Limitation Act 1980. The claims against these Defendants were therefore statute barred, subject to the application of s33 Limitation Act 1980. The Claimant relied upon 14(1)(c) Limitation Act 1980 in respect of the First Defendant, not knowing the First Defendant’s true identity. Factually, the Claimant had difficulties maintaining this position as he had not proved that reasonable steps had been taken to identify the First Defendant. The court therefore assessed the date of knowledge in relation to the First Defendant to be 12 months after June 1998 and the claim was also statute barred, subject to an application under s33 Limitation Act 1980.

The court then provided a helpful analysis of the circumstances taken into account when making a decision on s33 and a summary of the case law on this point to date.  The court allowed the claim to continue exercising its discretion under s33. One interesting argument here was whether or not the financial consequences to the Defendants given the Claimant’s decision to bring the claim against them  was relevant hardship for the purposes of s33. The real prejudice that existed for these 3 defendants was a financial one. They were now being asked to meet a claim for mesothelioma where it was going to be difficult/impossible to seek a contribution from the other defendants in the original action given the 2003 settlement. When faced with a Claimant with a serious condition, such an argument was an unattractive one.  The judge quite simply summarised his view on this: the financial consequences of what has occurred do not justify preventing the Claimant from seeking the compensation for the harm which this very serious condition involves.

Sabrina Hartshorn

21st October 2014



  1. […] My colleague Sabrina Hartshorn writes on the Dowdall case, s.33 and action estoppel […]

  2. […] Sabrina Hartshorn on Section 33 and a second action for the same injury in a Second Bite of the Cherry  […]

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