Employers’ liability claim and destruction of tissue samples
The claimant’s husband contracted asbestosis which, it is alleged, was caused by exposure to asbestos dust during his employment. Following his death from lung cancer, a post mortem examination was carried out and samples of lung tissue were analysed. The claimant instructed solicitors in 2009 and after a long attempt to trace the deceased’s former employers and their insurers, a letter of claim was sent in December 2010. However, a month earlier, the claimant had been contacted by the coroner’s office and asked if she would agree to the destruction of the tissue samples. When she called the coroner’s office she was told that it was normal to destroy samples and so she agreed to this, without consulting her lawyers.
The defendants subsequently applied to strike out the claimant’s statement of case as an abuse of process (pursuant to CPR r3.4(2)(b)). They argued that destruction of the samples had been an abuse of process and relied on earlier caselaw to this effect. They also referred to a solicitor’s duty to advise a client of the need to preserve documents as soon as litigation is contemplated (PD 31B) and argued that real evidence relevant to a contemplated claim is analogous to disclosable documents and gives rise to a similar duty on the part of a solicitor.
The judge rejected those arguments. The claimant’s solicitors had not represented her at the inquest and so would not have been in a position to explain matters to her. There was no reason to believe that the claimant would have connected preservation of the samples with her claim and she could not be criticised for agreeing to the destruction/not consulting her solicitors. Nor was it unreasonable for the solicitors to assume that the coroner’s office would not dispose of the samples without their prior agreement. Furthermore, there is no equivalent provision to PD 31B relating to real evidence and “in any event, there is a wealth of difference between documents relating to issues being litigated which are in the possession or control of a litigant and histological samples which are being held by a judicial officer”. Furthermore, it was still perfectly possible for a fair trial of the claim to take place.
(The judge did however advise that a copy of the judgment should be sent to the Chief Coroner with a request that he consider advising all coroners that, where industrial disease has been found to be a contributory cause of death, any communication about disposing of samples should advise the deceased’s family to consult their solicitors first. It would also be good practice for “solicitors instructed by claimants in fatal asbestos claims to advise both their clients and the relevant Coroner’s Office that disposal of histological samples should not be undertaken without confirmation from those solicitors that the samples are not required for the purposes of the claim”).