Davies and Others v Department of Trade and Industry and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Maurice Kay |
| Judgment Date | 20 October 2006 |
| Neutral Citation | [2006] EWCA Civ 1360 |
| Docket Number | Case No: B3/2006/1656 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 October 2006 |
[2006] EWCA Civ 1360
Lord Justice Waller
Lord Justice Longmore and
Lord Justice Maurice Kay
Case No: B3/2006/1656
6LS90101
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Leeds County Court
His Honour Judge Grenfell
Royal Courts of Justice
Strand, London, WC2A 2LL
David Allen QC and Ivan Bowley (instructed by Hugh James & Co) for the Respondent Davies and Ors
Robert Jay QC and Simon Antrobus (instructed by Nabarro Nathanson) for the Respondent DTI
Richard Maxwell QC and Patrick Limb (instructed by DLA Piper, Solicitors) for the Appellants
Waller LJ:
On 26 th June 2006 (subject to the approval of the Head of Civil Justice) , HH Judge Grenfell made a Group Litigation Order covering ten common or related issues of fact or law the first two of which will provide a context for considering the points raised on this appeal.:-
"(i) the liability of the British Coal Corporation (BCC) /their successors the Department for Trade and Industry (DTI) for chronic knee injury suffered by their employees as a result of underground work in mines between 1949 and 1994, where chronic knee injury means disabling symptoms of the knee joint(s) resulting from damage to the menisci and/or osteoarthritis, but does not include bursitis. In particular the following common issues arise.
(ii) Does underground mine work cause chronic knee injury and, if so, what work/activities/working conditions cause or contribute to such injury?"
As issue (i) makes clear the DTI is the successor to the liabilities of the British Coal Corporation and the National Coal Board to whom I shall refer for convenience as "British Coal". The application for such an order was made by solicitors acting for 5 miners, all members of NACODS (South Wales) . Those 5 had yet to bring proceedings, but it was common ground that proceedings alleging liability on the DTI for chronic knee injury would be commenced by those 5 against the DTI alone. It was further common ground between those acting for the applicants and the DTI that when, as would be likely, many other miners brought proceedings and sought to place the same on the register envisaged by the GLO, those proceedings would also be against the DTI alone.
The fact that the proceedings are likely to be against the DTI alone gives rise to the issue on this appeal. During the relevant period over which it will be asserted by miners that they contracted chronic knee injury, British Coal employed contractors to fulfil many tasks in the mines. The contractors, who have formed a group known as the Coalmining Contractor Companies (CMC) , themselves employed individual miners and many miners were during the relevant period employed both by British Coal and such contractors. The claimant miners according to those representing the present 5, do not intend to join any of those contractors as defendants in proceedings, and their primary reason for not seeking to do so is because their advisers take the view that they have a case against British Coal whether British Coal was employer or not, and because of the increased costs and the risk as to costs, which will be incurred if such contractors are joined.
Miners have in the past brought proceedings in relation to industrial injuries which have been the subject of GLOs – proceedings concerned with vibration white finger (VWF) and chronic obstructive pulmonary disease (COPD) . In those instances the contractors have not been joined in the main proceedings, but they have been faced with contribution claims by the DTI where the DTI has been found liable or accepted liability. For example in the COPD litigation involving many millions of pounds, where the DTI lost certain test cases, the DTI entered into a claims handling agreement with those representing the miners, which was devised for the purposes of establishing the legitimacy of claims and their quantum. It was an agreement applied by the DTI in relation to many thousands of miners, many of whom had not originally brought proceedings. The DTI sought contribution from the CMC contractors. In the contribution proceedings CMC accepted the findings made in the judgment in the test actions against the DTI; I do not know whether they ever considered doing otherwise, but albeit they were not parties to the test cases, those cases having lasted some 12 months and been the subject of a lengthy and detailed judgment by Turner J, their choice was perhaps limited and obviously a sensible one.
The contribution proceedings still involved a number of complex issues and lasted from 17 th June 2003 to 13 th February 2004. Sir Michael Turner (as by then he had become) , in a judgment over 150 pages in length, found that CMC were liable to contribute on the grounds they were in breach of duty, and on the grounds that pursuant to the contracts with the DTI to a certain "extent" they were bound to indemnify the DTI. Most critically he found that CMC were bound by the Claims Handling Agreement.
CMC feel they were disadvantaged by not being involved in the VWF and the COPD litigation at the main trial stage. In relation to the chronic knee injury litigation CMC wish to be involved in the litigation from the outset. Thus before HH Judge Grenfell representations were made on behalf of CMC that the issues identified as being those the subject of the GLO should be broadened so that CMC could be involved from the outset. In the skeleton argument of Mr Maxwell QC and Mr Patrick Limb before us it is put this way:-
9. The correct approach to group litigation and the making of a GLO requires the court to consider whether there are " … claims which give rise to common or related issues of fact or law (the "GLO issues") " – see CPR Rule 19.10.
10. The GLO issue formulated by the claimants and cited by the learned judge a paragraph 12 of his judgment includes:-
"(ii) Does underground mine work cause chronic knee injury and, if so, what work/activities/working conditions cause or contribute to such injury?"
11. CMC and their insurers plainly have an interest in that issue. Their men did the same work, mainly development work, as comparable BCC employees.
12. In formulating the GLO issue in such a manner claims concerning contractors ought to be included. Exclusion of such claims creates an artificial line of demarcation.
13. At the stage of setting up the GLO, it is imperative that claims which give rise to common or related issues of fact or law are within the scope of the GLO. The exclusion of contractors is therefore inappropriate.
7. The claimants resisted any broadening of the issues and resisted any idea that CMC should be entitled to be involved in any trial establishing the liability of the DTI. That resistance was based on a fear as to the way in which a trial would escalate (a) if CMC or any member company sought to argue points on employer liability which were being fought by the DTI in any event, or (b) if the DTI and CMC or any member company were to fight in the main trial issues relating to the extent to which one or other of them had responsibility as employer or occupier of the mines or (c) the complex contribution or indemnity issues which arose in the COPD Part 20 proceedings. The resistance was also based on the increased risk as to liability for costs if CMC or any member company were joined as a defendant in addition to the DTI.
The DTI's attitude was also to resist the joinder of CMC or the broadening of the issues on essentially the same grounds as those representing the claimants. But in addition the DTI argued before the judge and before us through Mr Jay QC (and it is fair to say Mr Allen QC for the claimants adopted this argument before us without expanding on it) that there was no power under the CPR at this stage to allow CMC or any CMC to become a party. The argument was that the DTI had not yet joined any CMC member as a Part 20 party and unless it did so there was no power in the court to allow any CMC member to become a party to a GLO. He relied on the language of CPR 19.10 and 19.11 which he said were in terms which precluded the court from making any GLO which would allow issues to be broadened so as to include "potential" part 20 defendants. The language of CPR 19.10 and 19.11(it is right to say) does not appear to contemplate a GLO covering Part 20 issues. He did accept however that if a CMC member were to be joined in proceedings later either as a co-defendant by a claimant or as a Part 20 defendant by the DTI, there would be power to make a GLO which included issues involving that CMC member. This he found difficult to justify on the language of Part 19. 10 or 19.11 on their own, but, he submitted, it was a matter of common sense. However his submission was that since neither the claimants nor the DTI intended to join any CMC member prior to the trial in which the DTI's liability would be considered, the court had no power to make a...
To continue reading
Request your trial
-
Howden Joinery Ltd v Martin Brain
... ... , in particular Phillips v Symes and others [2008] UKHL1 and Integral Petroleum SA v ... grant permission to an applicant to join another party as a part 20 defendant save and except ... did under order 19.2 was the fact that in Davies v DTI [2006] EWCA Civ , which was a case which ... ...
-
Teva Pharma BV and Another v Amgen, Inc. and Another
...that the court can resolve the matters in dispute in the proceedings." 27 It is common ground that, as Waller LJ stated in Davies v Department of Trade & Industry [2006] EWCA Civ 1360, [2007] 1 WLR 3232 at [12], rule 19.2 confers "a very wide power to enable parties who may be affected by ......
-
Jade Pawley v Whitecross Dental Care Ltd
...authorities in support of the decision of the courts below. The first in time is Davies and ors. v Department of Trade and Industry [2006] EWCA Civ 1360, [2007] 1 WLR 3232. The context for that decision was extensive multi-party litigation brought by coal miners claiming damages for chron......
-
Ronald Gittens t/a Almond Bay Caterers v The Management Commission of Parliament
...to that paragraph namely, RSC, ord. 15, rr.4 and 2(b)…. The Court of Appeal confirmed in Davies v Department of Trade & Industry [2006] EWCA Civ 1360, [2007] 1 All ER 518, that the court has a very wide discretion to consider joinder under CPR, r. 19.2(2).” 1 48 The matter of the court's ......