Smith v Secretary of State for Energy and Climate Change [Court of Apeal]
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Floyd,Lord Justice Longmore |
| Judgment Date | 05 December 2013 |
| Neutral Citation | [2013] EWCA Civ 1585 |
| Docket Number | Case No: B2/2013/0054 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 December 2013 |
[2013] EWCA Civ 1585
Lord Justice Longmore
Lord Justice Underhill
and
Lord Justice Floyd
Case No: B2/2013/0054
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Leeds County Court
HHJ Langan QC
2LS50469
Royal Courts of Justice
Strand, London, WC2A 2LL
Theo Huckle QC and Cathrine Grubb (instructed by Messrs RH Solicitors) for the Appellant
Andrew Kinnier (instructed by Messrs Nabarro) for the Respondent
Hearing date: 11th October 2013
Approved Judgment
INTRODUCTION
The Appellant is aged 65. From 1964 to 1994 he was employed by the National Coal Board (latterly the British Coal Corporation). Until 1979 he worked underground, for one year at Markham colliery and thereafter at Rossington. From 1979 to 1984 he had a job which involved him going underground regularly. He believes that the Board did not take adequate steps to protect him from the damaging effects of the noisy environment underground. In particular, he says that he was never provided with any hearing protection. He says that he has suffered hearing loss as a result. (He acknowledges that a man of his age is likely to suffer some hearing loss in any event, but he believes that his loss is worse than would otherwise be expected: I use the phrase "hearing loss" in that sense.)
On 2 September 2011 solicitors acting for the Appellant on a CFA basis wrote a letter of claim, in accordance with the Pre-Action Protocol for Disease and Illness Claims. The letter was addressed to the Respondent, the Secretary of State for Energy and Climate Change, who is the statutory successor to the relevant liabilities of the Board and the Corporation. The letter of claim included a request for disclosure of the Appellant's work medical records and personnel records, for which provision is expressly made at para. 4 of the Protocol; and these were duly provided. However, it also made a much more extensive request for disclosure of documents which might help to establish the levels of noise experienced in the various pits at which the Appellant had worked underground and his employers' knowledge of those levels and the consequent risks. That request was refused.
On 8 February 2012 the Appellant applied to the Leeds County Court for an order for pre-action disclosure in accordance with section 52 of the County Courts Act 1984 and CPR rule 31.16. On 1 June District Judge Buchan ordered disclosure of several, though not all, of the categories of documents sought in the letter of claim. The formal order as issued is defective since it says simply that the "parties [should] lodge documents agreed". It is, however, common ground that the parties had agreed on the categories of document to be disclosed if the issue of principle was decided in the Appellant's favour. The categories were as follows:
"(i) Documentation relating to noise tests carried out on behalf of the employers including documents, reports and memoranda prepared in consideration of the need for tests and the reports that were prepared subsequently as a result.
(ii) Memoranda and other documentation which has come into existence as a result of the defendant's consideration of the problems caused by noise and their decision to supply ear muffs, ear plugs and other similar ear protection, including copies of all order forms, requisition slips and documents relating to the supply and use of ear protection to the claimant.
(ii) Copies of all posters, warning notices and instructions issued by the employers to the claimant with regard to the hazard of noise.
(iv) Copies of all safety committee meeting minutes, safety officers reports and any notes relating to complaints having been made or steps being taken with regard to their preventing their employees being exposed to noise."
Those documents were to cover only the period during which the Appellant worked at Markham and Rossington — that is, from 1964 to 1979.
The Respondent appealed. The appeal was heard by His Honour Judge Langan QC in the Leeds County Court on 15 November 2012. By a reserved judgment dated 30 November he allowed the appeal and dismissed the application. In doing so he relied on the decision of Flaux J in ( [2010] CLTC 233Kneale v Barclays Bank [2010] EWHC 1900 (Comm)): I will have to say more about that decision in due course.
Lewison LJ gave permission to appeal to this Court. He found that the criteria for a second appeal were satisfied because:
"… there is some confusion on the authorities what is the correct threshold test for the claimant to satisfy before the court will consider making an order for pre-action disclosure. In substance the appeal is an appeal against the decision of Flaux J in Kneale v Barclays Bank. I am satisfied that it raises an important point of principle."
Before us the Appellant has been represented by Mr Theo Huckle QC, leading Ms Cathrine Grubb. The Respondent has been represented by Mr Andrew Kinnier. None of the counsel who appeared before us had appeared below.
THE STATUTE AND THE RULES
Section 52 (2) of the 1984 Act (as amended) reads as follows:
"On the application, in accordance with rules of court, of a person who appears to a county court to be likely to be a party to subsequent proceedings in that court the county court shall, in such circumstances as may be prescribed, have power to order a person who appears to the court to be likely to be a party to the proceedings and to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising or likely to arise out of that claim—
(a) to disclose whether those documents are in his possession, custody or power; and
(b) to produce such of those documents as are in his possession, custody or power to the applicant or on such conditions as may be specified in the order,—
(i) to the applicant's legal advisers; or
(ii) to the applicant's legal advisers and any medical or other professional adviser of the applicant; or
(iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant."
Section 33 (2) of the Senior Courts Act 1981 (as amended) makes substantially identical provision for proceedings in the High Court.
As originally enacted, both section 52 (2) of the 1984 Act and section 33 (2) of the 1981 Act (and their predecessor provisions in the County Courts Act 1959 and the Administration of Justice Act 1981) were differently worded, in that after the phrase "likely to be a party to subsequent proceedings" there appeared the words "in which a claim in respect of personal injuries to a person or in respect of a person's death is likely to be made". Those words were removed by amendments introduced in 1998 at the same time as the introduction of the CPR regime.
The relevant rule is CPR 31.16, which reads (so far as material) as follows:
"(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.
(2) The application must be supported by evidence.
(3) The court may make an order under this rule only where-
(a) the respondent is likely to be a party to subsequent proceedings;
(b) the applicant is also likely to be a party to those proceedings;
(c) if proceedings had started, the respondent's duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and
(d) disclosure before proceedings have started is desirable in order to —
(i) dispose fairly of the anticipated proceedings;
(ii) assist the dispute to be resolved without proceedings; or
(iii) save costs.
(4)-(5) …"
That rule of course reflects the provisions of the two statutes. In particular, heads (a) and (b) under para. (3) directly reproduce the statutory language.
THE AUTHORITIES: BLACK v SUMITOMO AND KNEALE v BARCLAYS BANK
Authoritative guidance on the meaning and effect of CPR 31.16 is to be found in the judgment of Rix LJ in this Court in ( [2002] 1 WLR 1562Black v Sumitomo Corporation [2001] EWCA Civ 1819) — though, as will appear, it has been argued that he leaves an important question unanswered. The relevant parts of Rix LJ's judgment for present purposes can be summarised as follows:
(1) He starts his general discussion by summarising, at paras. 49–50 of his judgment, the recommendations of Lord Woolf's "Access to Justice" report which lie behind CPR 31.16. Paras. 51–58 are concerned with a question which is irrelevant to the issue before us.
(2) At paras. 59–68 he reviews the authorities on the provisions as they stood prior to 1998 (see para. 8 above). Most of this passage is immaterial for present purposes, but I should set out para. 68, which reads:
"What … these authorities on the unamended section in my judgment reveal, and usefully so, is as follows. First, that at any rate in its origin the power to grant pre-trial disclosure was not intended to assist only those who could already plead a cause of action to improve their pleadings, but also those who needed disclosure as a vital step in deciding whether to litigate at all or as a vital ingredient in the pleading of their case. Secondly, however, that (as what I would call a matter of discretion) it was highly relevant in those cases that the injury was clear and called for examination of the documents in question, the disclosure requested was narrowly focused and bore directly on the injury complained of and responsibility for it, and the documents would be decisive on the conduct or even...
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