|Where the second defendant had settled the claimant’s claim for damages for exposure to asbestos leading to mesothelioma, the court granted permission for the second defendant to bring an additional claim for contribution against the first defendant, rather than issuing fresh proceedings.|
|The second defendant applied to make an additional claim against the first defendant for contribution after settling a personal injury claim.
The claimant suffered from mesothelioma and claimed personal injury damages against the first and second defendants on the basis that they had exposed him to asbestos. The second defendant had settled the claim a few days before the trial. The first defendant agreed to bear its own costs. Some days before the settlement the second defendant had issued an application to make a claim for contribution against the first defendant. Under CPR r.20.6(2)(b) the second defendant needed the permission of the court to bring its additional claim for contribution. The second defendant accepted that the claim was late but argued that it had only become clear after a joint experts’ report that there were issues of liability and causation between the parties that merited determination.
The first defendant argued that r.20.6 was not designed for the situation where the claimant had settled and dropped out of the proceedings, and that the second defendant should bring its contribution claim in fresh proceedings.
HELD: The claimant claimed to have been exposed to asbestos by the defendants in two separate periods. The issue between them was the extent of that exposure. The first defendant maintained that it had no liability. Rule 20.6 would commonly be used while the claimant was still involved in the action, but its use was not precluded in circumstances where the claim had been settled. The real issue was that of the court’s discretion to permit the additional claim to be brought. The application was late but that did not prevent the exercise of the discretion, and the second defendant had explained why its view had changed on the issues of liability and causation since the joint experts’ report. Any contribution claim by the first defendant would be similarly late. The delay in making the application had not caused any prejudice to the first defendant. In practical terms, application of the overriding objective indicated that all the factors were in favour of permitting the additional claim rather than requiring the issue of fresh proceedings. Fresh proceedings would be more costly and would take longer to come on for trial. It was possible that the second defendant could adopt the claimant’s expert evidence. Although that was not certain, it was clear that a great deal of work had already been done.