Council makes a successful application to set aside default judgment in £6 million mesothelioma claim
Last week, the High Court judgment in PXC v AB College & Ors was published. The London Borough of Richmond was granted leave to defend a £6 million mesothelioma claim despite acting with ‘inexcusable delay.’
Background to the application
Mesothelioma is a cancer which develops in the lining of some of the body’s organs – it mainly affects the lining of the lungs and is usually linked to asbestos exposure. The disease has a long latency period and symptoms may first manifest more than 40 years after exposure to asbestos occurred. Sadly, there is no cure. More than 2,700 people are diagnosed with mesothelioma each year in the UK. Most cases are diagnosed in people aged 75 and over and men are affected more commonly than women.
The claim in PXC v AB College & Ors is thought to be one of the highest value mesothelioma claims in UK history. The claimant alleges exposure to asbestos as a schoolboy in the 1980’s whilst working part-time at Richmond Ice Rink and he pursues a claim against the London Borough of Richmond (‘LBR’) on the basis that it owned, operated or controlled the rink. The claimant was diagnosed with mesothelioma aged 48 by which time he was a successful businessman with a wife and young son. He claims damages of over £6 million. An anonymity order has been made in the claim to protect the claimant and his family’s right to private and family life.
In 2021, the claimant obtained a default judgment against LBR on technical grounds as it had failed to acknowledge service of proceedings or file a defence in accordance with timetable set by the Civil Procedure Rules. Ten months later, LBR applied to set aside the default judgment on the basis that it had never owned Richmond Ice Rink nor employed the claimant and sought leave to defend the claim on the basis that it had been wrongly sued.
The outcome of the application
Despite a ‘fundamental lack of promptness’ in making the application which the judge described as ‘inexcusable’, the default judgement was set aside on the basis that LBR had a real prospect of defending the claim on liability as there was a lack of evidence to support the claimant’s assertion that LBR had owned, occupied or controlled Richmond Ice Rink. As a result, LBR is able to defend the claim at the upcoming liability only trial.
Commentary on the decision
It is usually a requirement that an application for relief from sanctions, such as missing a deadline as in this case, must be made swiftly and promptly. The fact that LBR waited 10 months before making the application and was still successful has attracted some criticism. Some practitioners have commented that the decision makes a mockery of the deadlines imposed by the court and appears to provide no incentive to comply with the court imposed deadlines.
The key factor in this decision was the strong argument that LBR had been incorrectly sued. Dexter Dias KC, sitting as a deputy High Court judge, noted that it would be unjust for a defendant with no liability to have to pay substantial damages and not be able to submit a Defence which had ‘real prospects of success.’ He said:
“Not to set aside would, to my mind, equate to ‘punishing’ the defendant for their procedural failures. That would be wrong in principle. However, the local authority does richly deserve rebuke in this case.”
The judgment is a reminder of the importance of responding to served proceedings in timely fashion and of the need to make an immediate application to the court if a court deadline has been breached.
If you would like assistance in relation to a mesothelioma claim or in relation to employer liability claims generally, please contact Donna Makin.