Cape Intermediate Holdings v Dring: Mining for asbestos litigation documents in the Court of Appeal

01 Aug 2018


Decision

The Court of Appeal yesterday held in Cape Intermediate Holdings Limited v Graham Dring [2018] EWCA Civ 1795 that Graham Dring, on behalf of the Asbestos Victims Support Groups Forum UK ("AVSGF”), was entitled to documents which originated from separate litigation concerning Cape Intermediate Holdings Ltd (“Cape”), within the following categories:

  • Statements of case 
  • Witness statements (although not documents referred to therein/exhibits)
  • Expert evidence (although not documents referred to therein/exhibits)
  • Documents (i) which have been read out in open court; (ii) which the judge is invited to read in open court; (iii) which the judge is specifically invited to read outside court, or (iv) which it is clear or stated that the judge has read
  • Skeleton arguments/written submissions read by the Court (provided there is an effective hearing)
  • Any document which it is necessary for a non-party to inspect in order to meet the principle of open justice.

The Court of Appeal considered the two distinct routes for obtaining documents from the Court, namely CPR5.4C concerning documents from the Court record and the rules of disclosure under CPR 31.

Hamblen LJ indicated that (i) Trial bundles; (ii) trial witness statements; (iii) trial expert reports (iv) The trial skeleton arguments or opening or closing notes or submissions; and (v) Court transcript were not “records of the Court” for the purposes of CPR 5.4C(2). However, disclosure of these documents may fall within the ambit of the Court’s powers under CPR 31 (as above). Statements of case fell within CPR 5.4C(2).

It was also made clear that filing documents with the court is not synonymous with becoming a court record.

Leveson P criticised the practices adopted by the Master in relation to the management of these disclosure applications. At para 147 of his Judgment Leveson P states:

Whether by Practice Direction or Practice Note, steps should be taken to ensure that allocation between Master and judge is appropriate and that `own motion' decisions are not made in this way.

Background

The present case arose out of separate litigation concerning asbestos product liability (PL) and contribution claims against Cape. The two claims were tried together in the Queen's Bench Division in January and February 2017 heard by Picken J ("the Judge"). In March 2017, after the trial but before the judgment the PL case was settled and all further proceedings were dismissed.

On 6 April 2017, the AVSGF made an application under CPR 5.4C to obtain all documents used at or disclosed in the trial of the PL Claims, including the entirety of the PL Bundle.

The Master reserved this issue to herself and ordered extensive disclosure including trial bundles and allowed AVSGF to take away six boxes of the Court’s records without any notice given to Cape. Cape appealed arguing:

  1. The Master failed to identify which documents the court had the power to permit a non-party to copy and had no jurisdiction under CPR 5.4C. to make the order
  2. The Master applied the wrong discretionary test as to jurisdiction
  3. The Master should have found that the AVSGF failed to meet the requisite test, whether it be "strong grounds in the interests of justice" or merely a "legitimate interest'
  4. The order was incorrect in principle and failed to address the volume of material to which it applied.

Next Steps

The Court of Appeal allowed CIH’s appeal on ground 1 and set aside the Master’s original order. The Court left the parties to draw up the terms of a revised order in respect of the categories of documents prescribed by the Court of Appeal in their Judgment.

Implications

The Court of Appeal’s ruling will allow AVSGF access to some, but by no means all of the material it had sought to mine from the Cape litigation.

On a wider basis, the decision will circumscribe the scope of what may otherwise have become commonplace applications by claimant firms to inspect documents in compromised litigation (held on the Court file).

However, Dring does not affect the ability of claimants to seek disclosure of documents from a non-party which they consider relevant and will assist their case. Such an application can still be made in accordance with CPR 31.17.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Nick Pargeter

Nick Pargeter

Partner and head of occupational disease practice group,
London


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