Re Asbestos Insurance Coverage Cases
| Jurisdiction | UK Non-devolved |
| Judge | Lord Fraser of Tullybelton,Lord Wilberforce,Lord Keith of Kinkel,Lord Roskill,Lord Bridge of Harwich |
| Judgment Date | 11 February 1985 |
| Judgment citation (vLex) | [1985] UKHL J0211-1 |
| Date | 11 February 1985 |
| Court | House of Lords |
[1985] UKHL J0211-1
Lord Fraser of Tullybelton
Lord Wilberforce
Lord Keith of Kinkel
Lord Roskill
Lord Bridge of Harwich
House of Lords
My Lords,
These appeals raise two questions under section 2 of the Evidence (Procedure in Other Jurisdictions) Act, 1975. The questions relate to letters rogatory issued out of the Superior Court of California for the City of San Francisco requesting the assistance of the High Court in England, and to orders made by the High Court in response to that request. One question relates to orders for witnesses to attend before an examiner in England for oral examination. The other relates to an order for production of documents.
The respondents are four American corporations, or groups of corporations, who manufacture asbestos. They are engaged in litigation in the United States of America against insurers with whom they had a large number of insurance policies to cover asbestos-related claims. Five actions have been raised in the Superior Court of California in San Francisco and they are collectively referred to a "the co-ordination proceedings." The insurers named in the titles to the five actions are merely a few of the many insurers involved and in each action certain underwriters at Lloyd's of London are also parties. In four of the actions, one or other of the respondents is the plaintiff and the defendants are insurers or, in one case, American insurance brokers. In the fifth action one of the insurers is the plaintiff and one of the respondents is the defendant. But nothing turns on the forms of the particular actions. The appellants are Sedgwick Group Plc., and two of their subsidiary companies (collectively referred to as "Sedgwick"), who together represent, as a result of amalgamations or otherwise, the final brokers through whom all the relevant policies with Lloyd's underwriters in London were arranged, and three individuals who are or were at the material time directors of those brokers.
Each of the respondents is faced with claims from persons who say that they are suffering from asbestos-related injuries, and who seek compensation for these injuries and in some cases for damage to property. In the co-ordination proceedings the respondents seek declarations and damages and in some cases injunctive relief and rectification against the insurers, including Lloyd's underwriters. There are many thousands of claims and their total amount is very large. The respondents allege that the insurers have failed or declined to defend actions brought by the claimants for compensation, or to indemnify the respondents against the claims.
The issues in the co-ordination proceedings include the following: (1) whether certain of the policies which are alleged to exist, dating back as far as 1920, exist at all; (2) the extent of the cover actually placed by the respondents with Sedgwick and in particular whether the insurance cover extends only to claims based on asbestos-related disease which manifested itself during the policy period or is provided only under policies which relate to the period of inhalation or ingestion; (3) the construction of certain of the policies issued by Lloyd's underwriters to the respondents through the agency of Sedgwick, including the level of loss at which liability of "excess" underwriters arises; and (4) whether the respondents failed to disclose to the underwriters the extent of their knowledge of the risk of asbestos-related injury.
The orders now under appeal were made by McNeill J. on 25 July 1984. He ordered the three individual appellants to attend before examiners to give oral testimony. As regards the production of documents, he made an order against Sedgwick giving effect to all the requests in the letters rogatory, except those in two paragraphs and certain others which were not pursued by the pursuant respondents. The Court of Appeal (Eveleigh, O'Connor and Slade L.JJ.) unanimously dismissed the appeals by the three individual appellants against the orders relating to oral testimony, and allowed in part Sedgwick's appeal against the order relating to production of documents. Slade L.J. gave a dissenting judgment in respect of the documents and would have allowed Sedgwick's appeal in relation to all the documents in issue. The appellants have now appealed by leave of this House.
On 11 February 1985 the House allowed the appeal in respect of documents and dismissed the appeal in respect of oral evidence. The reasons for the decision were not stated on that day, owing to the urgency of announcing the decision so that it could be carried into effect before the trial began in California early in March. We intimated that the reasons would be given later, and that we now do.
The Act of 1975 was passed in order, inter alia, to give effect to the principles of the Hague Convention of 1970 on the Taking of Evidence abroad in Civil or Commercial Matters (1977) (Cmnd. 6727) which was ratified by the United Kingdom in 1976. The Act of 1975 was fully considered by this House in In re Westinghouse Electric Corporation Uranium Contract Litigation M.D.L. Docket No. 235 (No. 1 and No. 2) [1978] A.C. 547, where my noble and learned friend, Lord Wilberforce, said, at p. 612:
"I am of opinion that following the spirit of the Act which is to enable judicial assistance to be given to foreign courts, the letters rogatory ought to be given effect to so far as possible: …"
I respectfully agree and I approach the present appeal with that admonition in mind.
Section 1 of the Act of 1975 (reading it short) provides:
"Where an application is made to the High Court … for an order for evidence to be obtained in [England], and the court is satisfied — ( a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal ('the requesting court') exercising jurisdiction … in a country or territory outside the United Kingdom; and ( b) that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated, the High Court … shall have the powers conferred on it by the following provisions of this Act."
Section 2(1) provides that the High Court shall have power by order to make such provision for obtaining evidence in England as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which an application has been made under section 1. Subsection (2) of section 1, so far as relevant, provides that an order under the section may make provision:
"( a) for the examination of witnesses, either orally or in writing; ( b) for the production of documents; …"
Subsection (3) is not material in the present appeal. Subsection (4) is the subsection which is directly in point here and I must quote it in full as follows:
"An order under this section shall not require a person - ( a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or ( b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power."
Two preliminary observations fall to be made on subsection (4). It was evidently passed in order to give effect to the United Kingdom Government's reservation, made in accordance with article 23 of the Convention when it ratified the Convention, declaring that: "the United Kingdom will not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents." While that is the explanation for the presence of subsection (4) in the Act, I do not consider that it assists directly in the construction of the subsection so far as this appeal is concerned. The wide-ranging nature of pre-trial discovery in the United States of America was explained by Lord Wilberforce in Westinghouse, but there is no question of the letters of request which are before the House in this appeal having been issued for the purpose of obtaining pre-trial discovery. The time for such discovery is long past, and the trial is due to begin in California about one month after the date on which we heard the appeal. Secondly, Mr. Phillips drew our attention to what appears to be a drafting error in paragraph ( b) of subsection (4). Paragraph ( b) refers to "particular documents...
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