Re British Coal Vibration White Finger Group Litigation [2009] EWHC 892 (Comm)

[2009] EWHC 892 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of JusticeDate Wednesday, 8 April 2009
The Strand
London WC2A 2LL
Before
MR JUSTICE MITTING
IN THE MATTER OF BRITISH COAL VIBRATION WHITE FINGER GROUP LITIGATION
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MR D ALLEN QC and MR C CARLING (instructed by various) appeared on behalf of CSG (Claimant)
MR B GRIFFITHS (instructed by BRM) appeared on behalf of UDM (Claimant)
MR R WALKER QC and MS C FOSTER (instructed by Nabarro) appeared on behalf of the DTI (First Defendant)
MR M RAWLINSON QC (instructed by Halliwells) appeared on behalf of UK Coal (Second Defendant)
MR P LIMB QC (instructed by DLA Piper) appeared on behalf of CMC (Third Defendant)
MR T SMITH (instructed by Halliwells) appeared on behalf of AGF/Small Mines (Fourth Defendant)
Judgment
[1]MR JUSTICE MITTING: Thank you. All defendants seek an alteration in the terms of Section 15 of the handling agreement. At present, the agreement between the claimant's solicitors' group and the department provides for a limitation amnesty during the currency of consideration of the claim under the agreement, and for twelve months once the claim has been finally determined under the agreement. There was, however, an amendment to the limitation provision agreed between the claimant's solicitor's group and the department, which provided, in effect, that the claim under the agreement was not to be treated as determined until the disputes procedure, if entered into, had run its course. Other defendants did not subscribe to that amendment. Accordingly, potentially in the case of a claimant who does take advantage of the disputes procedure, there are two different limitation periods, one against the department, the more generous one, and one against other defendants, which ignores the disputes procedure. This is an unsatisfactory state of affairs, likely to produce difficulty and anomaly.[2]Mr Walker for the department, supported by all other defendants, is anxious that the scheme and its aftermath should be wound up as quickly as is reasonably possible. This scheme has now endured for about ten years. It sprang out of litigation starting several years before that. It concerns events and working practices which occurred many years ago. There is every public interest in bringing this litigation and its aftermath to an end as soon as reasonably can be achieved.[3]I am sympathetic to the application made by Mr Walker that the limitation period of twelve months after determination under the agreement should be reduced somewhat. The initial proposal of reducing it to three months is not, in my view, practicable, given the considerations to which I will refer in a moment. There is a realistic claim that it would be practicable and sensible to reduce the limitation period to six months.[4]First of all, I have, however, to consider whether I have the power to make the alteration. Mr Walker relies on the judgment of the Court of Appeal in AB & others vs British Coal Corporation 2006 EWCA Civ 1357, and in particular the citation then, as it happens, relied on on behalf of the claimants from Lord Justice Steyn's judgment in AB & Others vs John Wyatt & Others Limited & Others 1993, Medical Law Reports 1, in which he observed:
"Subject to the duty to act fairly, the judge may and often must improvise. Sometimes that will involve the adaptation of entirely new procedures. The judge's procedural powers in group actions are untrammelled by the distinctive features of the adversarial system. The judge's powers are as wide as may be necessary to control the litigation fairly and efficiently."
[5]What underlies the claim's handling agreement and my supervision of it is the fact that but for it, there would have been tens of thousands of individual VWF claims.[6]The agreement, including Section 15, provides a method of dealing with those claims in a fair and orderly manner. I am satisfied that my powers under the agreement, applying Lord Justice Steyn's observations, include power to control the litigation as a whole, including the time at which any subsequent individual claim should be brought, once the agreement has run its course in the case of the particular individual. I am satisfied that I can, if I think it right, reduce the period within which a claim must be brought by litigation from twelve months to six.[7]I turn therefore to the practical considerations that determine whether or not I should do so. Mr Allen, at my invitation, has itemised the difficulties that may face a claimant who seeks to bring a claim by litigation. First of all, his current representative may not be willing to continue to act for him. Secondly, it would be necessary to obtain detailed witness statements from a claimant and, where appropriate, from his witnesses. Thirdly, these claims are likely to be so-called group 3 cases, those giving rise to the most difficulty under the scheme. Fourthly, most claims will be brought, if possible, with the assistance of costs insurance. It will take the insurers time to reach a decision on whether or not to offer such insurance. Fifthly, the medical report which is ordinarily required to be served with the claim form may not, unless defendants agree, be the MAP already obtained. Sixthly, it may be necessary in some cases to obtain engineering evidence from the limited number of experts in the field.[8]I acknowledge that in the unlikely event that an individual claimant came across most or all of these difficulties, that a six month time limit might create difficulties for him, but in my view it is highly unlikely that that would be so. Accepting that it is likely to be the group 3 type cases which are likely to be litigated, there will already have been prepared, and so be in existence, materials necessary to establish tortious exposure. I cannot conceive that a viable group 3 type case pursued by litigation would not already have in place the basic factual materials necessary to advance a claim of common law liability.[9]As far as the difficulty in relying on the MAP is concerned, I would expect that it would be rapidly established in the three court centres where these claims maybe litigated, that if defendants routinely objected to the service of an MAP as medical evidence, that claimants would routinely receive an appropriate extension of time, if needed, to permit to obtain other medical evidence.[10]As far as the obtaining of engineering evidence is concerned, I do not know enough about individual cases to be able to express a considered view, but given the background to the agreement, and the fact that liability has been established in the leading case that gave rise to the agreement, I find it difficult to conceive that in many cases engineering evidence would be required.[11]As far as the remaining difficulties are concerned, I would be surprised if, in the case of a potentially meritorious claim, there were to be any difficulty in obtaining advice from a qualified firm or an insurance decision from experienced insurers. Mr Allen told me that the likely period required by insurers was to be counted in weeks not months. It seems to me that that is not a difficulty that is going to cause any significant delay to any individual claimant.[12]As far as the obtaining of witness statements is concerned, although that task may well be necessary, the claimants themselves will already have completed a questionnaire, and will have surely well in mind what it is that they allege, so to be able to produce rapidly a sufficient witness statement. As far as witnesses go, it is likely, in my view, that the witnesses from whom statements may be required will already have been identified, and may indeed already have provided information in some form capable of being converted rapidly into a witness statement.[13]Accordingly, I cannot conceive that in the ordinary case, more than six months is going to be required between final determination of the claim under the agreement, and the issuing of a properly particularised claim form supported by appropriate medical evidence. Nothing, therefore, in the circumstances likely to confront individual claimants outweighs the public interest in having these claims finally resolved in the shortest reasonable and practicable time.[14]Further, the claimants will gain an advantage if, as all defendants now concede, a uniform time limit of six months is imposed, which takes into account the disputes procedure. All defendants have indicated that they will subscribe to an order that their position will be the same as that of the department. There is, therefore, some advantage to claimants in having a uniform provision. I am all for simplicity, it is likely to cause less difficulty than the existing patchwork of provisions.[15]Accordingly, and for the reasons which I have given, I order that the limitation period provided for in Section 15 is reduced from twelve to six months.