Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group), Court of Appeal - Civil Division, July 31, 2018, [2018] EWCA Civ 1795

Resolution Date:July 31, 2018
Issuing Organization:Civil Division
Actores:Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group)
 
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Neutral Citation Number: [2018] EWCA Civ 1795

Case No: B3/2018/0547, 0547(A) & 0547(B)

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

Master McCloud

[2017] EWHC 3154 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31/07/2018

Before :

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION

(SIR BRIAN LEVESON)

LORD JUSTICE HAMBLEN

and

LORD JUSTICE NEWEY

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Between :

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Jonathan Swift QC, Geraint Webb QC and James Williams (instructed by Freshfields Bruckhaus Deringer LLP) for the Appellant/ Defendant

Robert Weir QC and Jonathan Butters (instructed by Leigh Day solicitors) for the Respondent/ Applicant

Hearing dates : 18 and 19 June 2018

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Judgment ApprovedLord Justice Hamblen :

Introduction

  1. This appeal raises important questions about (i) the powers of the court under the CPR and its inherent jurisdiction to permit access to documents by non-parties; (ii) the way in which the court's discretion should be exercised where an application is within its powers; and (iii) the proper balance to be struck between the application of the principle of open justice and policy considerations concerning the proper and efficient administration of justice.

    Procedural and Factual background

  2. The Appellant, Cape Intermediate Holdings Ltd (``CIH''), was involved in litigation involving two sets of claims brought against it relating to damages paid out to mesothelioma victims, namely the Product Liability Claims (``PL Claims'') and the Cape Distribution Ltd (``CDL'') Claim.

  3. The PL Claims were contribution claims against CIH, brought on a subrogated basis by insurers who had written employee liability policies for certain employers (mostly building firms). Those employers had compromised mesothelioma claims by their former employees and sought a contribution from CIH on the basis that they had allegedly been exposed at work to asbestos from products it manufactured.

  4. The CDL Claim was a subrogated claim by Aviva PLC, acting in the name of its insured, CDL, to whom it had provided employers' liability cover between 1956 and 1966, for a contribution to settled claims for mesothelioma brought by former employees of CDL. The claims concerned contractual indemnity and insurance issues between CDL and its insurers.

  5. These two claims were tried together at a six-week trial in the Queen's Bench Division in January and February 2017 heard by Picken J (``the Judge''). The litigation settled before judgment in March 2017.

  6. A substantial volume of documentation was involved at the trial of the claims. The PL Claims and the CDL Claim each had a separate hard copy ``core bundle'' (known as the PL Bundle C and the CDL Bundle C respectively) which comprised both core disclosure documents and documents obtained by the parties from public sources. The PL Bundle C amounted to over 5,000 pages contained in around 17 lever arch files. In addition, all the disclosed documents in both the PL and CDL Claims were available electronically to the parties and the judge in a joint ``Bundle D'' via the Opus 2 Magnum electronic platform (which included almost 45,000 pages and was not produced in hard copy). Access to Bundle D at the trial was provided for logistical reasons only, so that if counsel wished to refer to a document which had not been included in the hard copy Bundle C, it could be called up on screen immediately from Bundle D without delaying the trial; a copy would subsequently be put in the hard copy Bundle C.

  7. The Respondent, Mr Graham Dring, acts on behalf of the Asbestos Victims Support Groups Forum UK (``the Forum''). The Forum provides help and support to asbestos victims. It is in some respects a pressure group and it is involved in lobbying and promoting asbestos knowledge and safety.

  8. On 6 April 2017, following the settlement of the PL Claims and the dismissal of all further proceedings, the solicitors Leigh Day issued a without notice application in the name of the AVSGF under CPR 5.4C seeking to obtain, in effect, all documents used at or disclosed for the trial of the PL Claims, including the entirety of the PL Bundle C and Bundle D (containing all documents disclosed) (the ``Application''). The Application was heard by Master McCloud on the same day. The Master made a mandatory injunction requiring the (former) parties to the litigation to return all bundles to the court. This included requiring Bundle D to be transferred from the Magnum electronic platform to a hard drive at a cost of some £1,800 (borne by CIH and the insurer parties to the PL Claims), so that the hard drive could be held by the court. The Master also, unusually, later directed the parties that ``any contact concerning this case must be directed to [the Master] and not to Picken J or his clerk''.

  9. At a directions hearing on 26 June 2017 CIH applied for the substantive hearing to be heard by a High Court Judge, and preferably by the Judge given his familiarity with the trial and with the documents. CIH submitted that this would be in the interests of justice and would also be the most efficient use of court resources. This application was refused by the Master in a written interim judgment handed down on 10 August 2017. She listed the matter for a full hearing before herself, robed and in open court. The matter was then heard before her at a hearing on 9, 10 and 12 October 2017 with both sides being represented by leading counsel.

  10. By an email of 29 November 2017 timed at 11.51 the Master stated that no draft judgment would be provided; it would be handed down at 3.30pm on 5 December 2017 and attendance was optional. In this email, the Master also said that she ``would consider permissions to appeal of [her] own motion in any event but parties may attend if they or their clients wish''. Despite the previous indication to the contrary, the Master emailed an embargoed judgment at 20.52 on 4 December 2017 to be handed down the following day. Her cover email asked the parties to ``let me know if attendance is expected'' and stated that she would await a copy of an agreed draft order ``embodying the decision in due course from counsel''.

  11. At 10.50 on 5 December 2017 Leigh Day sent an email to the Master and CIH's solicitors, Freshfields, stating that AVSGF would be in attendance. At 11.49 Leigh Day sent a letter by email attaching a draft order drawn up on behalf of AVSGF. They also commented on paragraphs 189-191 of the draft judgment and the direction made by the Master that, permission to appeal having been refused, any renewed application should be made to the Court of Appeal, pointing out that the application would have to be made to a High Court judge.

  12. At 11.51 the Master emailed the parties' solicitors stating that the judgment would be handed down at 15.30, that she did not intend to circulate a draft for revisions and that: ``Attendance is optional: I shall consider permissions to appeal of my own motion in any event but parties may attend if they or their clients wish''.

  13. At 12.22 the Master emailed a corrected final page of the judgment in light of the points raised by Leigh Day. At 12.38 the Master emailed the parties with a revised version of the draft order and saying that she would ``welcome comments from either side''.

  14. At 13.20 Freshfields emailed the Master stating that:

    ``Given the indication in your email of 29 November (timed at 11.51am) that no draft judgment would be provided, that the judgment would be handed down in Court this afternoon and that attendance is optional, we have not instructed Counsel to attend Court this afternoon.

    We will endeavour to agree a draft Order with the Applicant as you have indicated, with a view to providing you with a copy of the draft in the coming days. We note the contents of the embargoed judgment at paragraphs 190 and 191 in respect of appeal. Instructions will, of course, need to be taken in respect of permission to appeal and the Order will need to make provision for a stay in respect of the provision of any documents to the Applicant pending the outcome of any application for permission to appeal.

    We assume that the documents will not be released pending the making of the Order. If this is incorrect, please let me know as soon as possible, so that we can make inquiries with regard to the availability of counsel to appear this afternoon.''

  15. It appears that this email was not seen by the Master until after the hand down hearing but we were told that AVSGF's counsel, Mr Butters, explained CIH's position to the Master.

  16. Following hand down of the judgment the Master made an order in the following terms (``the Order''):

  17. ``The skeleton arguments, written submissions and transcripts shall for the avoidance of doubt be placed on the court file.

  18. Permission is granted to the applicant to obtain copies of the following documents from the records of the court:

    a. The witness statements including exhibits.

    b. Expert reports.

    c. Transcripts.

    d. Disclosed documents relied on by the original parties at trial contained in the paper bundles only.

    e. Written submissions and skeletons arguments.

    f. Statements of case to include requests for further information and answers if contained in the bundles relied on at trial.

  19. The documents referred to in paragraph 2 above (which have been held to be part of the Court record) shall be made available forthwith to the applicant's solicitor for copying or scanning. Upon return they and all other documents filed as part of the Court record shall be retained in Court and shall not be destroyed in the usual course of administration without an order of the Court.

  20. `Bundle D' shall be impounded and shall not be destroyed without further order of the court.

  21. The applicant is at liberty to apply to the court for a further determination of the status of any...

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