Mark Edwards & Ors v 2 Sisters Food Group Limited

Summary judgment in a disease claim should be reserved for cases where the requirements of CPR 24.2 can readily be established. The court must not conduct a mini-trial or assume that potential evidence cannot materially alter the case. A claimant need not show that the existing evidence already establishes an arguable case if the further evidence may add to or alter the evidential picture. In a Covid-19 workplace claim, the possibility of proving causation on the ordinary “but for” test cannot be rejected merely because the virus was prevalent in the community. Whether workplace exposure caused the illness may depend on evidence about community prevalence, working conditions, the employer’s response and the claimant’s activities outside work.

The appellants, former food-processing operatives, claimed that they contracted Covid-19 at the respondent’s Anglesey factory because of breaches of statutory duty, contract and negligence. They relied particularly on the Control of Substances Hazardous to Health Regulations 2002 and the Personal Protective Equipment at Work Regulations 1992.

HHJ Owens granted summary judgment for the respondent on the basis that the appellants had no real prospect of proving causation and that there was no compelling reason for a trial. Permission to appeal was granted on issues concerning the absence of disclosure and witness evidence, the importance of further causation evidence, and proportionality. The central issue was whether summary judgment could properly be granted before the evidential picture concerning causation had been developed.

1. Appeal allowed. The judge erred in concluding that the appellants had no real prospect of succeeding under CPR 24.2(a)(i).
2. The summary judgment process is draconian and must be used cautiously. The court must avoid conducting a mini-trial, particularly where conflicts of fact or reasonable grounds exist for believing that fuller investigation may add to or alter the evidence. The existing evidence need not itself establish an arguable case if the potential evidence may materially affect that assessment. The reasons why evidence has not yet been obtained, and the applicable procedural framework, are relevant.
3. The appellants’ primary causation case was that the ordinary “but for” test might be satisfied. That possibility was distinct from seeking an extension of the Fairchild exception. Evidence concerning Covid-19 prevalence, the appellants’ exposure outside work, working conditions and the reasons for the factory’s closure could potentially show that illness would not have occurred but for the respondent’s breach.
4. The judge impermissibly assumed that community prevalence made application of the “but for” test impossible. That conclusion required evidential assessment and could not properly be reached on summary judgment. The appellants faced an uphill task, but that was not the test.
5. It was not procedurally inappropriate to await disclosure before instructing an expert. The analogy with clinical negligence was inapt, and the costs of obtaining an expert report before the factual picture was available could be disproportionate.
6. The court did not need finally to determine CPR 24.2(b). If the appellants could succeed only by establishing a new exception to Fairchild, there would have been no compelling reason for a trial. That premise, however, did not apply to the appellants’ ordinary causation case.

• Caernarfon County Court: HHJ Owens granted summary judgment for the respondent on 18 July 2024.
• High Court (King's Bench Division): The appeal was allowed. The court held that the requirements of CPR 24.2(a)(i) had not been established.