In a case that will be of particular interest to the education sector, involving decades-old allegations of asbestos exposure at an independent boarding school, the High Court has held that the test of whether a defendant bears a real prospect of success is a “low bar”. The judgment simultaneously reaffirmed that the “Asbestos Masters” are best placed to apply this rough and ready test, even when furnished with incomplete expert evidence.
In Scarborough College Ltd v Winter  4 WLUK 352, a former pupil, who had attended the school in the late 1960s and early 1970s developed mesothelioma. The claimant had reportedly hung his clothes on asbestos-lagged pipes in the school’s basement boiler room, which were said to have been in a poor state of repair.
To establish breach, the claimant relied on a Department of Education memo dated 1967, warning that inhalation of asbestos dust was known to cause mesothelioma; a seminal 1965 article in the Sunday Times; and a preliminary expert report, which deemed it likely that the lagging contained asbestos.
CPR Practice Direction 3D allows for an expedited system of civil procedure to be applied to claims for asbestos-related diseases and has been in operation for a number of years. Central to PD 3D is “Show Cause Procedure” which, uniquely, requires the defendant to persuade the court that it can raise a defence, so reversing the burden of proof at the outset. A defendant must demonstrate why judgment should not be entered on liability by identifying “the evidence and legal arguments that give the defendant a real prospect of success on any or all issues of liability”. The rationale is to expedite the claims of asbestos-related disease sufferers, who often have short life expectancies.
At first instance, the Master held that the school knew or ought to have known about the condition of the lagging, the risks posed by asbestos exposure, and the presence of pupils in the boiler room. Faced with the 1967 memo and Sunday Times article, it was fanciful for the school to maintain that it was unaware of the dangers of asbestos exposure and, consequently, it should have restricted access to the boiler room. The Master concluded that the school had no realistic prospect of defending liability and breach of duty was incontestable.
Dismissing the appeal, Cavanagh J held that the test was not whether the defendant was likely to succeed at trial but whether it had a prospect of success that was not fanciful. He commented that the test sets a low bar for defendants and the procedure was inevitably rough and ready, often conducted without the benefit of full expert reports. The Master had been entitled to conclude that the school had not cleared that low hurdle and ought to have taken reasonable steps to prevent exposure to the asbestos, given the information available to it at the time. Further, the Master had been right in concluding that the school would have been unable to successfully argue that the harm had not been reasonably foreseeable.
The education sector will be concerned at the minimal threshold for liability being established in asbestos-related disease claims. For lawyers supporting those in the education sector, it emphasises that the prudent course is to expedite their own enquiries and investigations. Whilst the requirement placed on a defendant to show cause is, in theory, a “low bar”, the importance placed by the court on Administrative Memorandum 20/67 will be significant for the education sector on the basis that an elementary foreseeability line has been pencilled in for 1967. The test is clear, and the Asbestos Masters are well-equipped to apply it, even in the absence of comprehensive expert evidence, which in itself does not preclude a finding that a defendant has no real prospect of defending a claim.
The majority of commercial public liability insurance policies exclude liability for all asbestos-related claims. The Risk Protection Arrangement (RPA) available to local authority maintained schools, academy trusts, Church academies and voluntary aided schools, for example, does include cover for death or injury arising out of exposure to asbestos, but as it excludes claims relating to exposure occurring more than five years before the school concerned became a member of the RPA, this would not assist with such historic claims. However, claims from employees under commercial employer’s liability policies, and from those who can get themselves under the terms of that cover, continue, in the main, to respond to historic asbestos claims in the education sector when the exposure occurred many decades ago.
The authors would like to acknowledge the assistance of Paul Revill, paralegal, and Rebecca Shipton, solicitor apprentice (both in CMS Sheffield) in preparing this article.