Paul Sparkes (as personal representative of Pauline Sparkes, deceased) v London Pension Funds Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 14 May 2021 |
| Neutral Citation | [2021] EWHC 1265 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Appeal Ref: QA-2020-000139 |
| Date | 14 May 2021 |
[2021] EWHC 1265 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE ORDER OF
MASTER THORNETT DATED 12 JUNE 2020
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mr Justice Murray
Appeal Ref: QA-2020-000139
Case No: QB-2018-006940
and
Mr Harry Steinberg QC and Ms Aliyah Akram (instructed by Royds Withy King) for the Appellant
The Defendant and the Third Party Respondent did not appear and were not represented.
Hearing date: 1 December 2020
Approved Judgment
I direct that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Murray
On 1 December 2020 I heard this appeal against the order dated 12 June 2020 of Master Thornett (“the Order”) in which he dismissed the application dated 7 May 2020 (“the Disclosure Application”) made by Mr Paul Sparkes, as personal representative of Mrs Pauline Sparkes deceased, for an order for disclosure and inspection of documents from a third party respondent, Leigh Academies Trust (“the Trust”). The Master gave an ex tempore judgment (“the Judgment”), the transcript of which is in the appeal bundle.
I had granted permission to appeal on 15 October 2020 following a review of the papers.
Mr Sparkes appealed on the grounds that the learned judge failed to apply the appropriate test under CPR r 31.17, took into account irrelevant factors and failed to take into account relevant factors, and therefore erred in the exercise of his case management discretion.
Neither the defendant, the London Pension Funds Authority (“LPFA”), nor the respondent, the Trust, attended or were represented at the appeal hearing. The solicitors for the Trust, Stone King LLP (“Stone King”), wrote to the court on 27 November 2020, respectfully apologising on behalf of the Trust for not attending the hearing for costs reasons. Stone King also made various observations, which it asked the court to take into account when determining the appeal, including on the appellant's statement of costs. References below to statements by Stone King are to those made in its letter of 27 November 2020.
At the end of the hearing, I allowed the appeal and indicated that I would provide my reasons for doing so in writing in due course. These are my reasons.
The claim
The claim is for fatal asbestos-related injury.
The appellant is the widower of Mrs Sparkes and the executor of her estate. It is his case that Mrs Sparkes contracted mesothelioma as a result of her occupational exposure to asbestos. She died on 10 March 2015.
The central allegation is that Mrs Sparkes was negligently exposed to asbestos while working as a teacher at Kidbrooke Comprehensive School (“the School”) for the Inner London Education Authority (“ILEA”) between 1970 and 1975. At some stage the LPFA assumed the liabilities of ILEA by operation of statute. The School is now known as the Halley Academy.
The allegations of asbestos exposure are summarised at paragraphs 7 to 9 of the Particulars of Claim (“PoC”). It is alleged that the environment in which Mrs Sparkes worked was contaminated with asbestos, which was incorporated into the fabric of the school buildings. The floor and ceiling tiles contained asbestos. The wall panels and lagging were made of asbestos. It is alleged that Mrs Sparkes would almost inevitably have been exposed to asbestos during the course of construction of a new sixth form block at the School in 1973.
The LPFA has made no admissions as to paragraphs 7 to 9 of the PoC or the allegations of exposure. It puts the appellant to proof that Mrs Sparkes was exposed to material or harmful quantities of asbestos and that such exposure gave rise to foreseeable harm.
The application for disclosure under CPR r 31.17
The appellant applied under CPR r 31.17 for disclosure from a non-party, the Trust, of a collection of documents relating to building and maintenance work carried out at the School.
The background is as follows:
i) As a result of her illness and death, Mrs Sparkes was unable to provide a statement. The principal witness evidence in support of the case is therefore the evidence set out in the witness statements of Mr Robert Hope and Ms Patricia McHugh.
ii) On 12 July 2018, the appellant's solicitors, Royds Withy King (“RWK”), were informed by the Premises Manager of the Halley Academy that the School had retained “boxes of old documents” relating to building and maintenance works. These boxes had been saved from destruction in the 1990s. RWK asked the Premises Manager to copy these documents or to allow inspection on site.
iii) The Premises Manager spoke to his own manager and, by email sent on 16 July 2018, referred RWK to the Royal Borough of Greenwich (“RB Greenwich”) on the basis that RB Greenwich was responsible for “all asbestos issues” prior to the institution of the academy at the School.
iv) The ultimate destination of the historical liabilities of the ILEA was not entirely straightforward. Further investigation by the appellant showed that the LPFA had inherited the relevant contingent liabilities.
v) On 13 March 2019, RWK wrote to the Trust, which is the body now responsible for the School, asking the Trust to produce the documents that had been identified by the Premises Manager. In this letter, RWK made clear that it was seeking historic documents pertaining to the structure of the school and building work that had been undertaken over the years, including any document that might relate to the disturbance and/or addition and/or removal of asbestos containing materials during Mrs Sparkes's period of employment. In that letter, RWK requested disclosure or the opportunity to attend the school to inspect the documents.
vi) The Trust sent a holding response to RWK on 25 March 2019.
vii) Having had no substantive response, RWK sent a chasing letter to the Trust on 27 June 2019. RWK noted that it had previously been told that the documents were held at the School rather than in an archive.
viii) On 2 July 2019, the Trust disclosed papers relating to the 1970s, a full set of which are included in the appeal bundle, amounting to about 46 pages. The letter enclosing the papers was signed on behalf of the Trust by Mr J Taylor, Deputy Business Director.
ix) Having received what it described as a “slim file” of papers disclosed by the Trust, the appellant was of the view that it was unlikely that these were all of the relevant documents, given the reference by the Premises Manager to there being “boxes of old documents” relating to building and maintenance at the School
x) Accordingly, on 4 October 2019 RWK wrote to the Trust, for the attention of Mr Taylor, and explained, in the light of what had been said by the Premises Manager about (a) the contents and (b) the volume of the existing papers, that there may be other relevant documents. RWK confirmed that they were prepared to attend to inspect the documents on site (so as to avoid any cost to the Trust itself) and that no proceedings were being contemplated against the Trust.
xi) In response to the letter, on 14 October 2019 Mr Taylor telephoned Ms Jennifer Seavor, a Senior Associate at RWK, who was the solicitor who had signed the letter to the Trust of 4 October 2019. After the call, she prepared an attendance note, the substantive part of which reads in its entirety as follows:
“JSS taking a call from Jack Taylor at the Leigh Academies Trust. He has received my letter. He said that they have provided all of the documentation relevant to the 1970s.
I explained to him that from the information I have been given there are apparently boxes of historic documents relating to the premises which may be relevant. What I've been sent is only a small bundle. He said that he has spoken to the premises manager who has been there for many years, they have gone through all of the documents and the documents they have sent me are the only ones from the 1970s, which is the period of relevance.
Jack asked if there was anything else I needed at the moment. I said not at present. I'm due to speak to the barrister about this case soon so if we think it would be helpful to see earlier documents etc I will come back to him at that stage.”
xii) On 28 October 2019, having consulted counsel, RWK wrote to the Trust to explain that it required disclosure of additional documents, namely, those regarding building, maintenance, renovation, or demolition works at the School before and after Mrs Sparkes's period of employment. RWK again offered to visit the School to inspect the documents or to pay copying costs.
xiii) The Trust did not acknowledge or reply to this letter despite further chasing letters sent on 23 December 2019, 6 January 2020, and 26 February 2020.
xiv) On 7 May 2020, with the trial date for the claim approaching, the appellant filed the Disclosure Application.
xv) On 21 May 2020, RWK wrote to the Trust, by post (to the Trust's address at Carnation Road, Strood, Rochester, Kent ME2 2SX) and email ( info@latrust.org.uk, which was the email address on the headed notepaper used by the Trust for its letters to RWK of 25 March 2019 and 2 July 2019), notifying the Trust of the telephone hearing of the Disclosure Application listed for 12 June 2020 before Master Thornett and enclosing the application notice, draft order and notice of hearing.
Stone King, on behalf of the Trust, disputed the suggestion that the Trust had failed to assist in relation to the appellant's...
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...in order to determine their potential relevance in order to correctly apply the test under CPR rule 31.17(3)(a); Sparkes v LPFA [2021] EWHC 1265 (QB), per Murray J at 14 In order to determine the bearing that a document or class of documents may have on a party's case, the Court must focus......