Council gets default ruling set aside in £6m mesothelioma case despite "inexcusable" delay

In PXC v AB College & Ors [2022] EWHC 3571 Dexter Dias KC, sitting as a Deputy High Court Judge made the decision despite the council acting with what was described as an “inexcusable” delay.

The judgment was handed down in May 2022 but published on Bailii this week.

Outlining the background to the case, Judge Dias said that the claimant, PXC, is a husband and father, suffering from mesothelioma.

PXC is suing the London Borough of Richmond for exposing him to asbestos fibres. In the 1980s, he worked at the weekends and in holidays at Richmond Ice Rink.

The Deputy High Court Judge said the claimant’s case rests on two chief claims, namely that:

the rink was owned, operated or controlled by the council when he worked there;
he was exposed to asbestos at the rink.

The default judgement of Master Thornett on 9 July 2021 had been made after Richmond failed to acknowledge service of the claim and failed to initially enter a defence.

Outlining the stances of the parties, Dexter Dias KC said: “The applicant [Richmond] accepts that in this case the delay is ‘not ideal’, but the strength of evidence indicates that Richmond has a viable defence, certainly satisfying the Rule 13.3 set aside test.”

He added that the council submits there is a “real prospect” of successfully defending the claim, as the allegedly culpable venue, Richmond Ice Rink, was “not owned by the local authority; it was not occupied by it; it had no management or control of it”.

David Platt KC, on behalf of the council, submitted that the documents filed by the council “clearly indicate” that Richmond did not own, control or manage in any respect “this renowned facility”.

Patrick Kerr, on behalf of PXC, submitted otherwise. Judge Dias said: “He makes three essential points. First, that the applicant’s evidence does not disclose a real prospect of successfully defending this claim. Second, there has been an abject and inexcusable delay. Third, if the court finds that it does have a discretion, it should unhesitatingly exercise that in favour of PXC.”

Turning to the issue of ‘promptness’, Judge Dias said there has been a “fundamental lack of promptness”, adding that he found it was “inexcusable”.

He set out the consequences of delay, noting that “It may be, and this is decidedly not exaggeration or hyperbole, that PXC will have died by the time that this matter comes to trial if judgment is set aside. I say that with great respect and profound regret.”

Considering the submissions from both parties, Dexter Dias KC said: “Here there has been a serious and inexcusable lack of promptness. Against that are very clear and consistent indications that the Third Defendant [Richmond] has a viable and realistic defence.

“It is often difficult to prove a negative - that Richmond did not own, control or operate the ice rink. But the evidence before me strongly suggests that other entities, corporate and private individuals, did.”

He added: “If so, put simply, Richmond is just the wrong defendant.”

The Deputy High Court Judge noted that although promptitude requires “mandatory and important consideration”, failure to act promptly is “not in itself necessarily depositive.” [sic]

He concluded that the London borough had satisfied the court that the judgment should be set aside and that “the factors in favour of that disposal clearly outweigh those on the other side”.

Dexter Dias KC added that it was not in the present application for the claimant to prove his case, however “projecting forward to a possible trial”, he considered the lack of evidence pointing to Richmond’s ownership, occupation or control as “significant in assessing the local authority’s prospects of success”.

The Deputy High Court judge said. “I do not take the setting aside of judgment lightly. I make plain that my decision does not extinguish the chance of recovery from the local authority. It merely grants the local authority the chance to defend the action, as Nugee J said, ‘in the usual way to decide claims’. Further, not to set aside would, to my mind, equate to ‘punishing’ the defendant for their procedural failures. That would be wrong in principle. However, the local authority does richly deserve rebuke in this case."

The judge said he would not decide Richmond’s application to adjourn the quantum trial as this was rendered redundant by his setting aside of Master Thornsett’s default judgment – “an adjournment is inescapable”.

He added: “May I end by saying this: if it is ever permissible for a judge in this court to say so, I reach the overall conclusion in this case with a heavy heart.”

Lottie Winson