Asbestos Victims’ Supreme Court Victory a Triumph for Open Justice
A judgment handed down by the Supreme Court on July 29, 2019 is being hailed as a landmark in the British fight for “transparency of the legal process”1; while the civil case initiated by Graham Dring in 2017 on behalf of the Asbestos Victims Support Groups Forum UK (the Forum) sought disclosure of documentation to a non-party to asbestos litigation, the precedent it set could almost certainly be used by concerned citizens or journalists to access court documents in other cases. The unanimous verdict of Lady Hale (President), Lord Briggs, Lady Arden, Lord Kitchin and Lord Sales in Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK)2 upheld the principle of public access based on the constitutional principle of open justice. Dismissing objections by Cape’s legal team, Lady Hale wrote:
“Cape argues that the Court of Appeal did not have jurisdiction to make the order that it did, not that if it did have jurisdiction the order was wrong in principle… The Court of Appeal not only had jurisdiction to make the order that it did, but also had jurisdiction to make a wider order if it were right so to do.” 3
Mr. Dring is due to receive all the documents which include witness statements, experts’ reports and pleadings as originally ordered by the Court of Appeal within a matter of weeks. For the remaining documents Mr. Dring will make an Application to the Royal Courts of Justice where Judge Picken, the trial judge in 2017 – or another High Court Judge if Picken is unavailable – will consider whether to order wider disclosure than the Court of Appeal.4 Lady Hale has made it clear that the Supreme Court expected the High Court to:
“decide it [the case] on the basis of the principles enunciated by this court… [and] to determine whether the [High] court should require the appellant to provide a copy of any other document placed before the judge and referred to in the course of the trial to the respondent (at the respondent’s expense) in accordance with the principles laid down by this court.”5
Considering that the Supreme Court expressed its view that the default position should be that Mr. Dring be granted access “not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing,” it is likely that a very large number of documents will be disclosed; as many of them detail historic knowledge held by Cape Intermediate Holdings Ltd (“Cape”) – a subsidiary of one of the UK’s former asbestos giants – about the asbestos hazard, the importance of these documents to asbestos victims and their quest for compensation and clarity could not be greater.
Commenting on the case, Graham Dring told colleagues:
“It has taken over 2 years but was worth it… Cape, as you know, was one of the two asbestos giants in the UK, along with Turner & Newall. Unlike T&N, they are still an active company. Their operations, and their products, have been responsible for the deaths of many people, not just in the UK but in other countries too, including miners in southern Africa. They produced Asbestolux, which many joiners and carpenters used and which still remains, in a deteriorating condition, in our schools, homes and workplaces. 6
These documents will reveal how much they really knew about the dangers, how much they kept hidden and why they were allowed to get away with it. They are not just responsible for the deaths of their own workers. They caused the deaths of workers who used their products, sub-contractors doing work in their factories, wives who washed their husbands’ work clothes and people living near to their factories. It is past time to shine a light on their behaviour.”
The legal team which represented the Forum pro bono included barristers Robert Weir QC, Jonathan Butters and Harry Sheehan who can be seen detailing the case at hearings held on February 18 and 19, 2019 at the Supreme Court.7 In April, 2017 Harminder Bains, Partner from Leigh, Day & Co., the instructing solicitor, had taken out an injunction to prevent corporate documents belonging to Cape being destroyed at the conclusion of a case between the company and its insurers.8 Over the next two years, the case proceeded through the High Court via the Court of Appeal to the Supreme Court. Ms. Bains certainly deserved to savour this important victory; welcoming the judgment she said:
“Having fought on Graham and the Forum’s behalf for over two years to secure access to these hugely important documents I am delighted that the Supreme Court has ruled in our favour. This is a landmark decision for access to documents to non-parties and a victory for open justice. I hope it will help shed a light on all manner of issues, including the deadly asbestos industry. Cape has fought tooth and nail throughout; we have had to deal with numerous novel and complex issues. I am delighted to see the judgment reflects this.”9
August 2, 2019
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1 Judgment: Cape Intermediate Holdings Ltd (Appellant/Cross-Respondent) v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) (Respondent/Cross-Appellant). July 29, 2019. [Paragraph 2].
https://www.supremecourt.uk/cases/docs/uksc-2018-0184-judgment.pdf
2 Ibid
Press Summary. Cape Intermediate Holdings Ltd (Appellant/Cross-Respondent) v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) (Respondent/Cross-Appellant).
https://www.supremecourt.uk/cases/docs/uksc-2018-0184-press-summary.pdf
3 Judgment: Cape Intermediate Holdings Ltd (Appellant/Cross-Respondent) v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) (Respondent/Cross-Appellant). July 29, 2019. [Paragraph 49].
https://www.supremecourt.uk/cases/docs/uksc-2018-0184-judgment.pdf
4 Supreme Court rules in favour of asbestos support group in landmark disclosure battle. July 29, 2019.
https://www.leighday.co.uk/News/2019/July-2019/Supreme-Court-rules-in-favour-of-asbestos-support
5 Judgment: Cape Intermediate Holdings Ltd (Appellant/Cross-Respondent) v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) (Respondent/Cross-Appellant). July 29, 2019. [Paragraph 50].
https://www.supremecourt.uk/cases/docs/uksc-2018-0184-judgment.pdf
6 Email from Graham Dring. July 31, 2019.
7 Videos of February 18, 2019 hearing:
morning: https://www.supremecourt.uk/watch/uksc-2018-0184/180219-am.html
afternoon: https://www.supremecourt.uk/watch/uksc-2018-0184/180219-pm.html
Video of February 19, 2019 morning hearing:
https://www.supremecourt.uk/watch/uksc-2018-0184/190219-am.html
8 Judgment by Master Victoria McCloud. August 10, 2017.
https://www.leighday.co.uk/LeighDay/media/LeighDay/documents/Asbestos/Dring-v-Cape-Ors_QBD_-2017-EWHC-2103_10-8-17.pdf
9 Supreme Court rules in favour of asbestos support group in landmark disclosure battle. July 29, 2019 [Subscription only].
https://www.lexology.com/library/detail.aspx?g=8b6d97a8-cc6f-49b5-9ba5-6edcce2fba57
