Dowdall v William Kenyon & Sons Ltd & Ors

A later claim against tortfeasors who were not parties to earlier proceedings is not ordinarily an abuse merely because it could have been brought earlier. The court must adopt a broad, merits-based assessment of all the circumstances, including oppression and prejudice. A settlement covering the risk of a future disease does not necessarily extinguish a later claim for the disease itself where the settlement deliberately excluded compensation following its actual development. Under section 33 of the Limitation Act 1980, financial exposure resulting from the claimant’s delay may be considered in an appropriate case, but it will not ordinarily outweigh a substantial claim where evidential prejudice is limited and the defendant’s prospects of defending liability were never strong.

The claimant developed pleural mesothelioma after settling, in 2003, an earlier action against seven former employers for asbestosis, depression and the risk of developing further asbestos-related conditions. The earlier proceedings included a claim for provisional damages, but that claim was not pursued. The claimant later sued three other employers who had contributed to his asbestos exposure.

The defendants argued that the later proceedings were barred by abuse of process, cause of action estoppel, compromise and limitation. The preliminary issues were whether the proceedings were abusive, whether the claimant was estopped, and whether the claims were barred by the Limitation Act 1980. The central questions were whether the earlier settlement extinguished the mesothelioma claims and whether time should be disapplied under section 33.

1. Abuse of process. The proceedings were not an abuse. The defendants had not been parties to the earlier action and therefore had not been vexed by it. The claimant had honestly omitted them because their identities or insurers had not been identified. Applying the broad, merits-based approach in Johnson v Gore-Wood (No 1) and Dexter Ltd (In Administrative Receivership) v Vlieland-Boddy, the omission did not amount to oppression or misuse of the court’s process.
2. Estoppel and compromise. There was no cause of action estoppel because the parties were different. The settlement did not extinguish the present claims. The earlier action included compensation for the risk of mesothelioma and abandoned a provisional damages claim, but it deliberately excluded compensation consequent upon the actual development of mesothelioma. Applying Jameson v Central Electricity Generating Board and Heaton v AXA Equity & Law Life Assurance Society plc, the claimant had not accepted a sum representing the full measure of his estimated loss.
3. Limitation. The claims against the second and third defendants were prima facie out of time because the claimant knew of his asbestos-related injury and exposure in 1998. The claim against the first defendant was also statute-barred: the claimant should reasonably have identified the employer within 12 months after diagnosis.
4. Section 33 discretion. Relief was granted against all three defendants. The court considered the statutory factors, including the reasons for delay, evidential prejudice, the claimant’s serious injury, the merits, and the likely financial consequences. The defendants’ evidential prejudice was limited and they had no realistic defence on exposure or breach. Their increased financial liability was relevant but did not justify denying compensation for the mesothelioma.