13 December 2017Print This Post

Asbestos documents must be disclosed to pressure group, High Court rules

Master McCloud: “default position” in favour of open justice

A huge collection of documents, including “those relating to the history and development of knowledge in the 20th century about the risks of asbestos”, must be disclosed to the public, the High Court has ruled.

Master Victoria McCloud ruled that Graham Dring, who made the application on behalf of an asbestos victims’ support group, had a “legitimate interest” in the documents.

Master McCloud said parties to proceedings did not have “full sovereignty” to determine by private agreement the extent to which the public may be made aware of any aspect of the case.

“There is an inherent and foreseeable possibility that material deployed in court by the parties, or filed upon the records of the court as part of its process, will form part of the corpus of material which may be deployed in other cases, used for the purposes of legal advice, being academically or journalistically discussed, or considered by Parliament.”

Master McCloud said CPR 5.4C was the “primary means” by which the courts controlled public access to documents from the court record, but common law was “the master and not the servant” of the rules.

“Documents filed on the record of the court and which are read or treated as read in court are subject to a default position in favour of the principle of open justice if the applicant has a legitimate interest.

“Where the applicant has a legitimate interest then the court must still carry out a balancing exercise in relation to any harm to other parties legitimate interests when deciding whether to allow access.”

Master McCloud went on: “A legitimate interest can include academic interest, use by a pressure group or use in some journalistic form and indeed any number of other uses which are ulterior (in the proper sense of that word) without being illegitimate.

“Mr Dring acts for a group which provides help and support to asbestos victims. In some respects it is also a pressure group and is involved in lobbying and in promoting asbestos knowledge and safety. Those are legitimate activities and provide legitimate interest.”

Delivering judgment in Dring v Cape Distribution and Another [2017] EWHC 3154 (QB), Master McCloud said the documents in question were in court for a “lengthy trial” conducted by Mr Justice Picken of claims by insurers that Cape group companies had failed to give adequate warnings of the risks of asbestos exposure.

Master McCloud said that unusually, and possibly “uniquely” in the history of asbestos litigation, the disclosure exercise involved the “putting together of extensive quantities of historic material and records relating to asbestos safety and regulation in a way which one can safely take it would have been disproportionate in a run-of-the-mill asbestos claim”.

She said that among Mr Dring’s intended uses of the documents were to make them publicly available, “understand the industrial history of Cape and its development of knowledge of asbestos safety”, and “assist court claims and the provision of advice to asbestos disease sufferers”.

The master said she was satisfied that the documents were likely to be “of academic and scientific interest”, likely to be “considered by advisers advising parties to asbestos litigation”, would be relevant to the “product safety of asbestos” as it was understood by manufacturers, and relevant to the “extent to which employer defendants could have expected to appreciate the risks”.

Master McCloud said: “Partial access to the documents could lead to ‘cherry picking’ in terms of the publishing of negative material especially if access was only given to material which paints asbestos, and perhaps Cape, in a bad light.

“There is a risk, but a much-reduced risk, of cherry picking if access is given less selectively and more rather than less widely.”

She said she was not presented by Cape with “substantial evidence or argument” as to the harm it would suffer from disclosure, and did not regard the post hoc concerns raised by the company about privacy as a “credible or weighty” ground for refusing disclosure.

Master McCloud ruled that all the witness statements, expert reports, transcripts, written submissions and skeletons, statements of case and disclosed documents relied on by the parties at trial should be disclosed.

She said the contents of an online collection of documents served but not deployed at trial, should not be disclosed, to avoid non-parties to the case being placed in a better place than the parties.

Master McCloud added that in her judgement there was “no real prospect of a successful appeal and no other good reason for an appeal” and refused permission.

By Nick Hilborne

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