Matthews v Collins (t/a Herbert Collins & Sons) & Ors

An application to strike out for abuse of process requires seriously improper conduct and a substantial risk that a fair trial cannot take place. The destruction of potentially relevant evidence does not automatically justify strike-out. The court must assess the claimant’s responsibility, the value and likely effect of the missing evidence, the other evidence available, and whether a fair and proportionate trial remains possible. Where the missing evidence might assist but would not necessarily determine causation, and the case can still be fairly tried on lay, engineering and medical evidence, strike-out is inappropriate.

The claimant brought a fatal asbestos claim as widow and executrix of the deceased, alleging that occupational exposure caused asbestosis and lung cancer. The defendants applied under CPR 3.4(2)(b) to strike out the claim as an abuse of process because histological lung-tissue samples had been destroyed after the inquest.

The defendants argued that the claimant and her solicitors were culpable and that the destruction deprived them of important objective evidence concerning asbestosis, asbestos exposure and causation. The claimant maintained that she had acted innocently, that the samples might not have resolved the disputed issues, and that a fair trial remained possible.

1. Application dismissed. The destruction of the lung-tissue samples did not make the claim an abuse of process and did not prevent a fair trial.
2. Under CPR 3.4(2)(b), the threshold for strike-out is high. The relevant conduct is generally seriously improper conduct of a kind that places the fairness of the trial in jeopardy or creates a substantial risk of injustice. The approach in Arrow Nominees Inc v Blackledge [2000] CP Reports 59 and Logicrose v Southend United FC (1988) Times LR 5th March 1988 was applicable.
3. The claimant could not fairly be criticised. She was a lay person, was distressed after her husband’s death, and had no reason to understand the forensic significance of samples held by the Coroner. Her solicitors were not culpable for failing to anticipate that the Coroner’s Office would dispose of the samples without consulting them.
4. The analogy with CPR PD 31B was unhelpful. Documents within a litigant’s possession or control differ materially from histological samples held by a judicial officer. No equivalent CPR provision imposed the suggested duty concerning real evidence.
5. The missing samples might have assisted. Light microscopy could have confirmed the Helsinki criteria if two asbestos bodies per square centimetre had been found. Electron microscopy might have assisted on alleged amosite exposure. Neither result would necessarily have determined the claim, particularly because a low asbestos-body count might reflect poor coating mechanisms and chrysotile evidence could be inconclusive because of clearance.
6. A fair trial remained possible through the competing lay evidence, engineering estimates, medical evidence and evidence concerning the deceased’s clinical history and post-mortem findings. The trial judge could assess credibility, determine exposure, and evaluate causation. Strike-out would therefore be unjust, unnecessary and disproportionate.
7. As a postscript, the judge proposed sending the judgment to the Chief Coroner and observed that solicitors in fatal asbestos claims should advise clients and Coroners’ Offices against disposing of histological samples without appropriate confirmation.

First-instance decision. No appellate history is stated in the judgment.