Hutson & Ors v Tata Steel UK Ltd

Variation of a Group Litigation Order should be refused where the claim proposed for removal raises common or closely related issues with claims remaining in the group, and the asserted adverse costs consequences are modest and speculative. The discretion to vary an earlier order under CPR r 3.1(7) is ordinarily subject to principled constraints, including material change of circumstances, material misstatement of the original facts, or manifest mistake. Those constraints do not prevent refusal where the application would fail even on an unfettered discretion.

The claimants sought to vary a Group Litigation Order under CPR Part 19 by removing bladder cancer from the listed pathologies. The defendant opposed the application, relying on common issues concerning workplace exposure, respiratory protection and related matters, and on the desirability of managing any bladder cancer claims within the group.

The claimants relied on the limited number of such claims and potential adverse costs consequences for claimants with respiratory diseases. The central issues were whether the order should be varied under CPR r 3.1(7), and whether the advantages of retaining bladder cancer claims outweighed the asserted costs concerns.

1. Application refused. The court refused to remove bladder cancer from the scope of the Group Litigation Order.
2. The bladder cancer claim gave rise to several issues common or closely related to those arising in respiratory disease claims, including matters concerning exposure and respiratory protective equipment. Keeping the claims within the GLO therefore offered clear case-management advantages.
3. The potential adverse costs consequences for the other claimants were too modest and speculative to outweigh those advantages. The absence of further bladder cancer claimants and the rigorous screening process made it possible, and perhaps likely, that no additional claim would be registered.
4. Under CPR r 3.1(7), the discretion to vary an earlier order is ordinarily constrained by the interests of finality, the avoidance of two bites at the cherry and the need not to undermine the appeal process. The circumstances normally justifying variation include a material change of circumstances, material misstatement of the facts on which the original decision was based, or manifest judicial mistake: Tibbles v SIG plc [2012] 1 WLR 2591.
5. The judge added that he would have refused the application even if the discretion had been unfettered. Further directions were anticipated, but no final conclusion was reached on any variation of the timetable for master pleadings. The defendant was awarded its costs, subject to the claimants’ seven-day opportunity to challenge the assessment.