Hutson v Tata Steel UK Ltd  EWHC 1608 (QB)
The High Court has refused an application by Tata Steel to have limitation tried as a preliminary issue in respect of a group action alleging historic exposure to dust and fumes at work.
On 2 February 2017, the High Court approved an application for a Group Litigation Order (GLO) submitted by a number of former British Steel workers and family members of deceased workers. It is alleged that the workers were exposed to dust and fumes at work and have subsequently developed occupational diseases.
This action has already been subject to several applications on various issues:
- An application to add a firm of solicitors as a lead firm was rejected in 2017. Mr Justice Turner finding that adding another firm of solicitors would increase the aggregate costs bill and lead to a duplication of effort.
- An application was granted earlier this year adding additional Claimants into the group litigation order (GLO), two months after the previously extended deadline for registration had passed. This "indulgence" was granted after the Claimants persuade the court that adding the additional parties would not increase disclosure obligations significantly. Furthermore any efforts to proceed outside the GLO would be very difficult.
Tata Steel ("Tata"), as the successor in title to British Steel, has filed a Generic Defence in which they argued that at least some of the claims are statute barred under the Limitation Act 1980.
In order to address this, Tata applied to have limitation tried as a preliminary issue on lead cases.
The Court has the power to direct that a preliminary issue be heard under CPR 3.1(2)(i) and (j). Tata asked for the Court to use that discretion to consider the issue of limitation on the lead cases.
The time limit in which a claim for personal injury can be brought is 3 years, whether from the date of injury or the date of knowledge as defined in section 14 of the Limitation Act. However, this may be disapplied (per section 33) at the discretion of the Court.
The leading case considering the general principles of when limitation can be disapplied is Carroll v Chief Constable of Greater Manchester Police. Tata argued that applying the principles from Carroll demonstrated that they had a strong case on limitation in a significant proportion of the claims. Tata contended that a preliminary hearing would save costs and would minimise automatic prejudice to them by requiring them to deal with the "limitation point and substantive issues simultaneously".
In response, the Claimants argued that:
- As only half of the claims were subject to limitation challenge, a preliminary issue on any lead cases would serve no purpose in respect of unaffected cases.
- Those lead cases subject to limitation dispute that progressed past the preliminary hearing would arguably still be subject to causation arguments.
- Making a determination on limitation in the lead cases would not be determinative of those outstanding cases where limitation was disputed, or give guidance on the strength of the limitation disputes in those cases. There are in excess of 20 locations where Claimants suffered the alleged injuries and the availability of documentation varied in many cases.
The application was refused. Acknowledging the arguments advanced by Tata, Mr Justice Turner nonetheless found that the overriding objective in the group litigation "would not be best served by determining limitation defences by way of the hearing of any preliminary issue".
He stated "the costs of hearing preliminary limitation issues are likely to be out of proportion to the perceived benefits" and that the likelihood of delay would be a further consequence.
Tata's argument that it was automatically prejudiced by having to argue two tactical issues simultaneously (limitation issue and substantive defence) was also dismissed. Mr Justice Turner stated that "so long as the court rigorously follows the proper sequence of analysis, the result will be fair to both sides."
What can we learn?
- The Court made clear that arguing the likely low value of the claim versus the likely greater costs of allowing the claims to proceed without a preliminary determination on liability was insufficient. Referring the 1996 report on the purpose of a GLO, it stated the purpose "is to provide access to justice where large numbers of people have been affected… but individual loss is so small that it makes an individual action economically unviable."
- The fact that the limitation defence may have been successful in a number of cases could not be "determinative of the merits of the application", and had to be considered in the overall context of the GLO and the overriding objective.
- The judgment also made clear that reliance on precedent by Tata had resulted "in a superfluity of reference to authority". If anything, the authorities referred to provided markedly differing views on preliminary hearings. As Mr Justice Turner succinctly put it, "paradoxically, if one overarching conclusion can be drawn from [the cases], it is that no overarching conclusion can be drawn from them." On a general basis, legal representatives should be cautious about the inferences that can be drawn from authorities relied upon.