After settlement of a claim for asbestos-related disease against two employers, is it an abuse of process to bring a claim for mesothelioma against a third employer two and a half years later?

 By Vilma Vodanovic

The High Court decision in Lloyd v Humphreys and Glasgow Ltd [2015] EWHC 525 (QB) handed down on 20.3.2015 considers if there was abuse of process in those circumstances. It is also a useful example of the Court’s willingness to exercise its discretion under section 33 of the Limitation Act 1980.

Background facts

Mr Lloyd was a welder who was exposed to asbestos fibres during his employment with various employers in the 1950s, 1960s and 1970s. Humphreys and Glasgow Ltd (HG) were one of those employers.

Mr Lloyd’s x-rays had shown that he had pleural plaques from as early as 1983; from 1993 he had some respiratory disability which, with hindsight, was thought to have been from asbestosis but he was not diagnosed with anything specific. In 2004, he looked to make a disablement benefit application through his then solicitors Corries. This was refused though.

There were then some attempts at intimating a claim in 2005 and 2006 against two defendants not including HG, but at this stage Mr Lloyd’s diagnosis was not definite. He had some difficulties with breathing; pleural plaques were present as was pleural thickening but it was not clear if these were responsible for the breathing difficulties. The claim was presented on the basis of rare symptomatic pleural plaques. The prospects of claim were then revised by Corries and there was an agreement with these two other defendants for a standstill, essentially to see if Mr Lloyd’s condition would develop further.

There had been some deterioration in Mr Lloyd’s condition after 2005 and Corries tried again to intimate claims in 2008 against the same two other defendants and this time HG too because insurers for them had by now been identified. The claim was again to be put on the basis of a rare example of ‘symptomatic pleural plaques/pleural thickening’ but the medical evidence was still not suggestive of any asbestosis until late 2008/early 2009.

The insurers for HG were however at the time involved in the Trigger test litigation and refused to indemnify any absestos-related disease other than mesothelioma; they also said they thought the claim was weak. They had therefore indicated that they were awaiting the outcome of that test litigation.

The other two defendants were not in the same position. Medical evidence was obtained on both sides and there was conflict between the experts. Mr Lloyd’s case at best was still being put as this being a case of symptomatic pleural plaques, pleural thickening and very mild asbestosis.

Ultimately a settlement was reached by these other defendants on a full and final basis in November 2011. Just prior to settlement being reached, proceedings were issued in September 2011 against those two defendants but not against HG.

By this stage Mr Lloyd’s condition had deteriorated significantly and he was reluctant to settle but on advice he accepted the offer. Mesothelioma had been suspected by this stage but no formal diagnosis had been made, until March 2012. In April 2012, he instructed his then solicitors to issue a claim for mesothelioma against HG.

Mr Lloyd’s condition rapidly deteriorated in 2012 and he passed away in May 2012. A letter of claim was sent to HG in June 2012 claiming damages for mesothelioma on behalf of his estate but this particular claim was not pursued further on advice from Counsel.

New solicitors were instructed on behalf of the estate and a further letter of claim was sent to HG in November 2013 with the claim being issued in January 2014.

It was argued by HG that this was an abuse of process as the claim could and should have been issued in 2011 when the other two defendants were sued. It was further argued that the primary limitation period having expired in October 2011, there should be no exercise of discretion under section 33 of the Limitation Act 1980.

Decision of Mrs Justice Laing on abuse of process

 

HG’s insurers were particularly unhappy about this case because they were now facing a very different claim for mesothelioma rather than asbestos-related disease which would have been the case had they been included as defendants to the proceedings issued in 2011.

This was not an abuse of process however for one particular reason: HG knew about the potential for a claim as far back as 2008; they decided to rely on the arguments they were raising in the Trigger test litigation and wanted to await the outcome of that litigation before making any admissions. For there to be abuse of process, a claimant’s conduct in litigation has to be oppressive or harassing to a defendant and that is not the case here.

HG took a calculated risk in not even wanting to entertain the claim as it was presented in 2008 or indeed in 2011 by the time it had been issued. The gamble did not come off and now they were facing a much bigger claim. Mr Lloyd’s solicitors were right in settling claims against those employers who wanted to play ball, and not wasting time pursuing those who did not.

Decision on exercise of discretion under section 33 Limitation Act 1980

 

Mr Lloyd’s date of knowledge was October 2008 because of the findings of a CT scan carried out then and the reference to asbestosis. He may well have had symptomatic asbestosis prior to that date but his actual date of knowledge was determined as a result of the findings on that scan. Primary limitation expired in October 2011.

The delay in issuing proceedings against HG that was considered by Mrs Justice Laing was between October 2008 and January 2014.

It was found that the majority of the delay in not issuing against HG was brought on by HG’s aggressive stance to the litigation on the basis of the pending outcome of the Trigger litigation and their unwillingness to entertain the claim. This was also a relevant factor to be considered in relation to HG’s overall conduct.

Even if Mr Lloyd himself had issued the claim in April 2012 shortly before his death, the likelihood is that HG’s unhelpful attitude would have prevailed and they would not have been in a position to test his evidence in that short space of time between April and his death in May 2012. The problems they now faced with defending this litigation would have been exactly the same as they were in 2011 or indeed in April 2012, and were largely borne out by the latency periods and the passage of time since they employed Mr Lloyd.

Mr Lloyd was found to have taken all legal and medical advice that it was reasonable for him to take.

In considering all the circumstances of the case, it was argued that Mr Lloyd’s estate would now have a claim against Corries solicitors because they had essentially forgotten that insurers for HG had been identified in 2011 at the time that they issued proceedings against the other two defendants. Whilst that may well have been the case, it was found that HG’s insurers’ aggressive stance would not have made any difference even if the claim had been issued against HG in September 2011: they are unlikely to have consented to judgment being entered against them and unlikely to have agreed a limitation amnesty.

The claim was allowed to proceed.