James Anthony Power v Bernard Hastie & Company Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 22 July 2022 |
| Neutral Citation | [2022] EWHC 1927 (QB) |
| Docket Number | Case No: QB-2021-002158 |
| Court | Queen's Bench Division |
| Year | 2022 |
[2022] EWHC 1927 (QB)
Mr Justice Johnson
Case No: QB-2021-002158
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ASBESTOS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Ivan Bowley (instructed by Simpsons Solicitors) for the Applicant
A John Williams (instructed by DAC Beachcroft Claims Ltd) for the Defendants
Hearing date: 15 July 2022
Approved Judgment
This application raises the question whether the estate of a deceased claimant can take advantage of that claimant's right, under a provisional damages order (“PDO”), to ask the court to award further damages on the ground that he developed a condition or disease that was specified in the order.
The applicant is the nephew and executor of the estate of the claimant (“Mr Hammacott”). He says that he should be substituted as the claimant in these proceedings in the place of his deceased uncle, so as to be able to pursue an application under a PDO made in these proceedings. The defendants say that the right to pursue such an application does not survive Mr Hammacott's death.
The factual background
Mr Hammacott was born in 1940. He worked for each of the defendants during periods between 1956 and 1977. He claimed that he was exposed to asbestos and asbestos dust in the course of his employment. He developed asymptomatic pleural plaques and early asbestosis. In 1991 he issued proceedings against the defendants in the Cardiff District Registry of the High Court. Liability was admitted by the defendants. Mr Hammacott sought an award of provisional damages under Order 37 Rule 10 of the Rules of the Supreme Court (“RSC”). The application was heard by Kay J on 19 October 1993.
Kay J made an order that the defendants pay damages of £5,000 with interest of £233 on the assumption that Mr Hammacott would not (as a result of the acts and omissions giving rise to his claim against the defendants) develop certain identified conditions. Those included a serious deterioration of his asbestosis or asbestos related benign pleural effusion or asbestos related pleural thickening, in each case resulting in his inability to continue in any form of employment.
The order included the following paragraphs:
“3. The Plaintiff do have leave to apply (without time limit) for further damages pursuant to Order 37 Rule 10 if he does develop the aforesaid conditions or diseases or any of them.
4. The documents referred to in the schedule to this Judgment shall be produced to the Court by the Plaintiff's solicitors so that those documents maybe preserved as material for any further assessment and the said documents will comprise the case file.”
The documents identified in the schedule to the order included an agreed statement of facts. That statement (which forms part of the same document as the order itself) included the following:
“3. It is agreed between the parties that the Plaintiff will be at liberty to apply for further damages pursuant to Order 37 Rule 10 of the Rules of the Supreme Court in the event of him developing [the conditions that are specified in the order].
4. It is also agreed between the parties that the Plaintiff can apply for further damages at any time during his life.”
Mr Hammacott died on 3 October 2017. The applicant says that he died from asbestosis and/or disabling asbestos related pleural effusions and/or disabling asbestos related diffuse pleural thickening.
Probate was granted on 7 June 2018. Mr Power is Mr Hammacott's nephew, and the executor of his estate. He applied at the Cardiff Civil Justice Centre for an order that he be substituted as the claimant, and that the claim be transferred to the Royal Courts of Justice (“RCJ”) Asbestos List, and that it be listed for directions.
On 3 February 2021 His Honour Judge Harrison, sitting at Cardiff, made an order transferring this claim to the RCJ Asbestos List for further directions, including the application for the substitution of the claimant. There was a delay in the file being transferred from Cardiff to the RCJ. A new claim number was allocated to the case. There was then some further delay while the parties sought to identify the areas of dispute. At the court's request, on 23 June 2022, Mr Power made a further application to be substituted as the claimant, in his capacity as the executor of the estate.
Legal framework
Substitution of party
Part 19 of the Civil Procedure Rules (“CPR”) makes provision for the substitution of parties.
CPR 19.5 applies to the substitution of a claimant after the end of a statutory limitation period. In such a case, the court may substitute a claimant if the relevant limitation period was current when the underlying proceedings were started, and the claimant has died and his interest has passed to the new party.
Where CPR 19.5 does not apply, CPR 19.2(4) enables the court to substitute a claimant if the existing claimant's interest has passed to the new party, and it is desirable to add the new party so that the court can resolve the matters in dispute in the proceedings.
Provisional damages order
Section 32A Senior Courts Act 1981 states:
“32A Orders for provisional damages for personal injuries
(1) This section applies to an action for damages for personal injuries in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.
(2) Subject to subsection (4) below, as regards any action for damages to which this section applies in which a judgment is given in the High Court, provision may be made by rules of court for enabling the court, in such circumstances as may be prescribed, to award the injured person—
(a) damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition; and
(b) further damages at a future date if he develops the disease or suffers the deterioration.
…”
At the time the order in the present case was made, the relevant rules of court for the purposes of section 32A(2) were contained in RSC Order 37. Order 37 rule 8(2) and (3) stated:
“(2) An order for an award of provisional damages shall specify the disease or type of deterioration in respect of which an application may be made at a future date, and shall also, unless the Court otherwise determines, specify the period within which such application may be made.
(3) The Court may, on the application of the plaintiff made within the period, if any, specified in paragraph (2), by order extend that period if it thinks it just to do so, and the plaintiff may make more than one such application.”
Order 37 rule 10 provided that no application for further damages may be made after the expiration of a period specified under rule 8(2) (or such period as extended under rule 8(3)).
The CPR came into force on 26 April 1999. By rule 51, and paragraph 2(b) of practice direction 51A (“PD51A”), the general scheme from that date is to apply the CPR to defended cases so far as is practicable. Paragraph 11 of PD51A states that where a new step is to be taken in any existing proceedings on or after 26 April 1999, it is to be taken under the CPR. Paragraph 15(2) states that the general presumption will be that the CPR will apply to the proceedings from the first time that the case comes before a judge on or after 26 April 1999, unless the judge directs or the practice direction provides otherwise.
Part 41 of the CPR makes provision in respect of damages. CPR 41.1(2)(c) defines “award of provisional damages” to mean:
“an award of damages for personal injuries under which—
(i) damages are assessed on the assumption referred to in [section 32A of the 1981 Act] that the injured person will not develop the disease or suffer the deterioration; and
(ii) the injured person is entitled to apply for further damages at a future date if he develops the disease or suffers the deterioration.”
CPR 41.2(2)(b) provides that an award of provisional damages must specify the period within which such an application may be made. Paragraph 2.3 of the Practice Direction to Part 41 (“PD41A”) states that the period “may be expressed as being for the duration of the life of the claimant.” CPR 41.2(3) provides that the claimant may make more than one application to extend the period. It does not require that any such applications must be made before the expiry of the period set by the PDO (or any such period as extended). CPR 41.3(1) provides that the claimant may not make an application for further damages after the end of the period specified under rule 41.2(2), or such further period as extended by the court.
Effect of death on causes of action
Section 1(1) Law Reform (Miscellaneous Provisions) Act 1934 states:
“(1) Subject to the provisions of this section, on the death of any person… all causes of action… vested in him shall survive… for the benefit of… his estate. Provided that this subsection shall not apply to causes of action for defamation.
(1A) The right of a person to claim under section 1A of the Fatal Accidents Act 1976 (bereavement) shall not survive for the benefit of his estate on his death.
(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person—
(a) shall not include—
(i) any exemplary damages;
(ii) any damages for loss of income in respect of any period after that person's...
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...claims. Life after Death: Provisional Damages Orders Live On after the Claimant's Death In Power v Bernard Hastie & Company Ltd & Ors [2022] EWHC 1927 (QB) the court confirmed that the entitlement to claim further damages under a provisional damages order ("PDO") passes to the claimant's es......
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...v Bernard Hastie & Company Ltd & Ors [2022] EWHC 1927 (QB), the High Court has clarified that a beneficiary's right to apply for further damages under a PDO passes, on death, to their estate, and may be advanced by their The background facts Mr Hammacott (Deceased) was born in 1940. He work......