AB and Others v British Coal Corporation and Another
| Jurisdiction | England & Wales |
| Judge | Sir Michael Turner |
| Judgment Date | 18 June 2004 |
| Neutral Citation | [2004] EWHC 1372 (QB) |
| Docket Number | Case No: C960013 |
| Court | Queen's Bench Division |
| Date | 18 June 2004 |
[2004] EWHC 1372 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Sir Michael Turner
Case No: C960013
In the Matter of the Coal Mining Contractors Contribution Litigation
Michael Spencer QC, John Cooper, Robert Evans and Simon Antrobus (instructed by Nabarro Nathanson) for the Defendant
Richard Maxwell QC, Robert Owen QC and Patrick Limb (instructed by DLA and Eversheds) for the Third Party
Hearing dates: 17 June 2003 to 13 February 2004
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Chapter 1 —COAL MINING CONTRACTORS
Preliminary
The judgment in Griffiths and Others v British Coal Corporation delivered on 28 January 1998 forms the essential context of the present proceedings. It will be necessary to refer to a number of its findings for the purposes of the judgment in these proceedings. It has been accepted by the parties to these proceedings that they are bound by those findings and, with one immaterial exception, its conclusions of law.
General Introduction
In the circumstances set out below, the Department of Trade and Industry (DTI) seek to recover contribution, under the provisions of the Civil Liability Act 1978, or indemnity, in contract, in respect of some of the liability which they inherited by statutory subrogation from the former British Coal Corporation (British Coal). From the late 1950's/early 1960's, British Coal (National Coal Board, as it was then constituted) started to employ contractors to execute work connected with major developments in their underground mines. Over the period up to 1994, between five and six thousand men may have been so employed at any one time. The main purpose of such work was to enable new production faces to be opened up, an essential feature of any systematic mining of coal. The nature of the work was essentially tunnelling, which is an everyday part of civil engineering construction. In addition to underground work executed in existing mines, shaft sinking and the opening up of new mines were also included in the work which was contracted out. The practice of using contractors in this way was spread across coalfields, although some areas were more reluctant than others to make use of their services. The decision whether or not to employ contractors for any particular project was determined by policy which emanated from the Mining and Projects Department of British Coal. The terms of contractors' employment were then determined by the Purchasing and Supplies Department as supplemented by instructions issued by Area organisations into instructions issued by colliery managers. As Dr Jones, who became the last Head of Mining for the former British Coal, was to say:
The regime imposed to deal with contractors was quite rigid. … The contract documentation would set out who was responsible for what in terms of delivering the contract and in providing health and safety equipment, instruction (and so on).
As will shortly become clear, the exact role of the contractor in terms of his responsibilities under the contract and towards his own men was a major area of dispute in this litigation.
The current litigation
The liabilities of the former British Coal were transferred to the Department of Trade and Industry under the provisions of the Coal Industry Act 1997. In the case of Griffiths and Others v British Coal Corporation, judgment in which ("the original judgment" [bundle P]) was delivered on 27 January 1998, British Coal was found liable to compensate a selection of miners and former miners in respect of damage caused to their respiratory systems following work underground in the course of their employment. The medical conditions in respect of which compensation was held to be recoverable were identified as chronic bronchitis, emphysema, small airways disease and temporary exacerbation of asthma (but not its initial causation). These conditions have been described collectively as chronic obstructive airways disease, allowing the acronym COAD or chronic obstructive pulmonary disease and the acronym COPD. It is the latter which will be used throughout this judgment.
Since judgment was delivered as above, the numbers of claimants have swelled dramatically, such that claims numbering in excess of 550,000 have been made. In financial terms, this has led to a potential liability amounting to something in excess of £3.5 billions. In these proceedings, the DTI seek to recover contribution and or alternatively indemnity from the independent contractors in respect of the compensation which they have paid to men who at some stage in their lives worked for contractors and also for British Coal. The broad grounds asserted are that the Contractors were in a number of particular respects also at fault, so far as those men were concerned, and that such fault contributed, at the least, to some of the injury of which complaint is made. It is implicit in the nature of these proceedings that British Coal was itself, as the DTI accepts, concurrently in breach of its duty of care to those same workmen. British Coal does not, nor could they, seek to challenge in these proceedings any of the relevant findings in the original judgment. The basis of this necessary precondition to the DTI's right to proceed against the contractors is to be found fully set out in that judgment. Throughout the proceedings and this judgment, the Contractors are referred to as the Third Party – modern nomenclature (part 20 defendant) does not readily lend itself to a clear understanding of the true characteristic of a conventional third party.
Following the original judgment, and realising the possible extent of the claims which would be forthcoming, the DTI entered into a scheme with the Claimants' solicitors, the intention being to enable the vast majority of those claims to be disposed of administratively, and without further reference to the Court, save for the purposes of review of the operation of that scheme. This scheme, the Claims Handling Agreement (CHA)), was subsequently approved as a reasonable basis for settlement of the claims by the Court in its role as manager of the Group Litigation, of which the original claims and the present claims were and are both a part. The Agreement was the product of much careful, detailed and technical negotiation by the original parties to the litigation and their legal and professional advisers including, as will be seen, a team of medical advisers. As has appeared in practice, some parts of the scheme have been found not to be meeting the intentions of the parties as they would have wished, the consequence has been that it has been amended from time to time to reflect those needs, and has been further approved by the Court. In all essential respects, however, the scheme has met, and is still meeting its objectives, although from the point of view of many claimants it has appeared that the active participants, namely the DTI and the Claimants' solicitors, have introduced unnecessary delays in the process. This is a separate issue, which is one of those reviewed by the Court on a regular basis and need be of no more concern in these proceedings.
Basis of present claim
The claim by the DTI is that the Contractors were as much in breach of the relevant duty of care towards their workmen, also in many of the same respects, as British Coal had been found to be towards its workmen in the proceedings which led to the original judgment and thus it makes its claims. These are founded both in contract and also for contribution under the provisions of the Civil Liability (Contribution) Act 1978. The claim in contract is also founded on two bases. First, there are alleged breaches of the express terms of the specifications within the contracts under which the contractors performed their works. Secondly, the Defendants, rely on express indemnity clauses to be found in the relevant general conditions of contract as they were from time to time. The Contractors' answers to these claims have been to deny they were in breach of contract and that, if they were at fault at all, it was of so limited and infrequent occurrence that it is not a case where it would be just or equitable that they should be ordered to make either contribution or afford indemnity. The Contractors also contend that, in acting as they did, they did no less than the contracts, when properly construed, required of them. Insofar as the claim for indemnity is concerned, it is they the Contractors, not the Defendants, who are entitled to claim indemnity by relying upon the indemnity clauses in their favour contained in those same conditions of contract. The Contractors also raise other arguments of substance.
In particular, the Contractors rely on the existence of the detailed and elaborate statutory scheme which was at all material times embodied in the Mines and Quarries Act 1954 and subordinate legislation which makes meticulous and detailed provision for management of coal mines, as well as every aspect of safety of any individual who goes underground for the purposes of his work. It was within such a regime that the Contractors were required to operate. Apart from this, the Contractors were under contractual obligations to British Coal which were largely uniform, albeit the specifications of individual contracts would of necessity differ as to detail according to the work which was the subject of the contract. It was said that the terms of the contracts left little, if any, scope to the Contractors to perform their work in any other...
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