“Specialist mesothelioma list”: Judge sets out procedure for accessing employment schedules from HMRC

http://www.bailii.org/ew/cases/EWHC/QB/2014/2311.html

The “specialist mesothelioma list” refers to a procedure established by the Royal Courts of Justice whereby two specialist Masters hear all types of asbestos-related disease claims. The Masters apply a “show cause” process, which requires a defendant to identify the evidence and legal arguments that give it a real prospect of success on any or all issues of liability. They also waive most aspects of procedural formality in order to streamline the process as much as possible. 

An issue arose in this case because of a recent change in approach adopted by the HMRC regarding the disclosure of employment schedules to enable potential claimants to identify and sue the correct tortfeasors. The HMRC decided to take the view that they could not lawfully disclose those schedules before court proceedings had been started. That was because, they argued, (1) the Data Protection Act did not apply; (2) third party disclosure under CPR r31.17 requires the existence of an issued claim; and (3) the Norwich Pharmacal jurisdiction could not apply because the mere keeping of employment records did not “facilitate” a wrongdoing in which the HMRC was “mixed up”.

However, since the application here was issued, crossgovernment clearance was obtained to amend the Deregulation Bill (which will become law by the end of 2014) in order to allow HMRC to disclose schedules to potential claimants. Accordingly, Master McCloud set out in this judgment a procedure for dealing with requests for HMRC employment histories in the interim. In short, this will allow the issue of a claim form against “Persons Unknown”, followed by an emailed application to the specialist Masters who will in turn serve the HMRC with a draft order and a schedule of information to assist HMRC to trace the records.