Patterson v Smith Dock Ltd & Anor

An appeal may be dismissed with costs where the appellants accept that dismissal is appropriate, even without formally consenting to it. Permission to appeal to the House of Lords is discretionary. The importance of policy issues, the developing nature of the law, anticipated continuing litigation and the possibility of future review do not, without more, justify permission. The decision determines the procedural disposition only and does not resolve the underlying mesothelioma or apportionment issues.

These were two related appeals concerning mesothelioma claims. The Patterson appeal was brought by the son and executor of J Patterson’s estate against Smith Dock Ltd and another. The Murray appeal was brought by the widow and executrix of J L Murray’s estate against Whessoe plc and others. Both appeals arose from decisions of Newcastle upon Tyne County Court, before His Honour Judge Nolan and Mr Recorder Hirst.

After the Court of Appeal handed down and dismissed Barker v Saint Gobain Pipelines Plc [2004] EWCA Civ 545, the defendants sought permission to appeal in one or both of these cases. They accepted that the appeals themselves should be dismissed but argued that the importance and continuing development of the apportionment issue justified a further appeal.

1. Appeals. The appeals in both Patterson and Murray were dismissed with costs.
2. Basis for dismissal. The defendants accepted realistically that the appeals should be dismissed, although they did not formally consent to dismissal. The Court made the dismissal orders and costs orders. No application for interim costs was made.
3. Applications for leave. The defendants relied on the policy character of the issues, the developing state of the law, the possibility that the House of Lords might reconsider the scope and application of Fairchild, and the likelihood of continuing mesothelioma litigation. They also relied on the reducing number of solvent defendants and insurers available to meet claims. The respondents opposed leave. The Court did not grant it.
4. Decision. Lord Justice Kay stated that any reconsideration of the issues was a matter for the House of Lords in light of the Court of Appeal’s judgment. The applications for leave to appeal to the House of Lords were therefore refused. The judgment contains no determination of the underlying apportionment arguments.

• Court of Appeal (Civil Division): appeals from decisions of Newcastle upon Tyne County Court were dismissed with costs. Applications for leave to appeal to the House of Lords were refused.