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	England and Wales High Court (King's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Edwards & Ors v 2 Sisters Food Group Ltd (Rev1) [2025] EWHC 1312 (KB) (28 May 2025) URL: https://www.bailii.org/ew/cases/EWHC/KB/2025/1312.html Cite as: [2025] EWHC 1312 (KB)

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IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
HIGH COURT APPEAL CENTRE, CARDIFF
ON APPEAL FROM CAERNARFON COUNTY COURT
HHJ OWENS

		Cardiff Civil Justice Centre
		28 May 2025

Crown Copyright ©

This judgment was handed down remotely at 10:30am on 28 May 2025 by circulation to the parties or their representatives by e-mail and by release to The national Archive

Sir Peter Lane:

1. The appellants (formerly the claimants) appeal against the order of HHJ Owen dated 18 July 2024, by which she gave summary judgment in favour of the respondent (formerly the defendant), pursuant to CPR 24.2. Under that rule, the court may give summary judgment against a claimant or a defendant, if the court considers that the party concerned has no real prospect of succeeding on the claim; and there is no other compelling reason why the case or issue should be disposed of at a trial.

BACKGROUND

2. In 2020, the appellants were employed by the respondent as food processing operatives. They worked on the processing line at the respondent's factory on Anglesey. The appellants say they worked in close proximity to each other; indeed, "shoulder to shoulder". In June 2020, there was an outbreak of Covid-19 at the factory. On 18 June 2020, their case is that the factory was closed at the direction of Public Health Wales. The purpose of the closure is alleged to have been for deep cleaning of the premises and to effect an improvement in working conditions. As far as the appellants are currently aware, 217 of the 560 staff at the factory contracted Covid-19 during the course of the outbreak. The appellants say that each of them contracted the virus during this time.
3. The first appellant fell ill around 6 June 2020 and tested positive for Covid-19 on 23 June. The second appellant fell ill around 12 June 2020 and tested positive for Covid-19 on 15 June. The third appellant also fell ill around 12 June and tested positive for Covid-19 on 19 June. The fourth appellant fell ill around 15 June and the medical evidence is such that he contends his illness was caused by Covid-19.
4. The appellants' claim is that they contracted Covid-19 as a result of breach of statutory duty, breach of contract and negligence on the part of the respondent. They particularly rely on alleged breaches of the Control of Substances Hazardous to Health Regulations 2002 and the Personal Protective Equipment at Work Regulations 1992.
5. The respondent admits it employed the appellants and that they worked in close proximity with each other, but denies they were "shoulder to shoulder". The respondent avers it implemented enhanced hygiene measures at the factory. Although the respondent admits the factory was closed on 18 June 2024, it contends that this was not at the direction of Public Health Wales but as a result of an agreement with that body. The level of illness at the factory is not admitted by the respondent. Breach of duty is denied, as is the applicability of the 2002 Regulations.

THE APPLICATION AND HEARING

6. On 18 January 2024, the respondent applied for the claims to be struck out or alternatively, that there should be summary judgment in the respondent's favour. The rationale for the application was said to be that the appellants had not proved they contracted Covid-19 at all and/or that they could not establish causation. At the hearing before HHJ Owens, the first aspect was not pursued.
7. At the hearing, the respondent's case on causation was that contracting Covid-19 is in the nature of an "indivisible injury", meaning that, even if the appellants could establish a breach of duty on the part of the respondent, the appellants would be unable to establish that the breach caused or materially contributed to the injury. For their part, the appellants' case was that they would obtain evidence on causation from an expert in occupational hygiene, permission for which had been sought in the Directions Questionnaire, following disclosure and exchange of witness statements in what was said to be the usual way. The appellants submitted that obtaining such a report prior to the respondent discharging its disclosure obligations would have been premature and wasteful of costs. A further such report would have had to be obtained once the respondent's evidence had been made available.

THE JUDGMENT

8. In her judgment, the Judge said at paragraph 8 that she took issue with the proposal to obtain a report from an occupational hygienist in connection with proving causation. She asked rhetorically: "Surely that would be a matter for a medical specialist in Covid-19 to advise upon?"
9. At paragraph 10, the Judge accepted that "it may be possible to draft the allegations of breach of duty section of the particulars of claim by reference to information provided by the Cs in the first instance...". Nevertheless, she could not understand "how it is possible to plead a causal link between any such breach and the development of Covid-19 without any medical causation evidence."
10. At paragraph 14, she noted Ms Adams KC's submission that the appellants "cannot succeed on causation grounds, that covid is, as far as we are currently aware, an indivisible "injury" and that, as a result, even if the Cs were to establish a breach of duty on the part of D, Cs would be unable to establish that any such breach caused or materially contributed to the injury. Covid-19 is a virus over which it has no control. She has taken me through a line of authorities, many of which relate to industrial disease claims, in support of this argument."
11. At paragraph 15, the Judge noted the response of Mr Gray, counsel on behalf of the appellants, that the claims should be allowed to go to trial. Investigations were said to be at an early stage. There had been no disclosure at that point. The appellants needed to see the results of disclosure before they could instruct an occupational hygienist to advise and investigate causation.
12. At paragraph 16, the Judge recorded that counsel for the appellants raised "a potential scenario where one of the Cs may have lived alone, travelled to work alone and not gone out at all. He submits that in such circumstances, such a C would be able to prove that his sole exposure to the virus was in the workplace and that the claim should be allowed to proceed on that basis alone".
13. In paragraphs 17 to 24 of the judgment, HHJ Owens considered the authorities referred to in paragraph 14. The thrust of the respondent's submissions on causation was that the appellants could establish causation in the case of Covid-19 illness only if they could show that any breach of duty on the part of the respondent increased their risk of contracting that illness. That, however, would "need an extension of Fairchild v Glenhaven Funeral Services Ltd (2002) UKHL 22. Such an extension has not been given in any case outside the asbestos arena".
14. As the Judge observed at paragraph 18, Fairchild was a case of multiple employers, each of whose breaches of duty caused the claimant to be exposed to asbestos. As a result, the claimant developed mesothelioma. Owing to the nature of the disease, which at that time was medically understood to be capable of arising by exposure to a single fibre of asbestos, the claimant could not prove a causal link between the disease and any one of the employers, by relying on the normal test of causation in tort; namely, that but for the breach of duty of the employer, her illness would not have arisen (for a description of the "but for" test, see Charlesworth & Percy on Negligence 15^th Ed 5-04). In order to surmount this difficulty, the House of Lords held that, in a case of this particular kind, an exception to the "but for" test needed to be made. Thus, the House of Lords concluded that, where multiple employers had breached their duty to the claimant, she could succeed where a breach had increased the risk of contracting mesothelioma.
15. At paragraph 20 of her judgment, the Judge held that the case with which she was concerned was "very different" from Fairchild. "Covid-19 is a virus over which an employer would not be able to exercise control in the way an employer would be able to prevent mesothelioma by ensuring that they did not come into contact with asbestos". By contrast, Covid-19 was "a virus to which the public at large are exposed. No doubt safety measures at the chicken processing were or should have been introduced to minimise the risk of the virus spreading but ultimately, this workforce was exposed to covid everywhere, not just at the chicken processing plant."
16. At paragraph 21, the judge referenced Wilsher v Essex Area Health Authority [1988] AC 1074. In that case, a premature baby suffered blindness after a series of discrete clinical breaches of duty on the part of a hospital. The House of Lords held that the claimant had failed to show that it was the administration of excess oxygen, rather than one of the other factors, that caused the blindness. HHJ Owens accepted that Wilsher was supportive of the respondent's application for summary judgment: "That must be right where covid 19 is prevalent in the community at large as well as in the D's processing plant."
17. At paragraph 22, the Judge quoted the cautionary words of Lord Scott in paragraph 64 of the judgments in Barker v Corus UK Ltd [2006] 2 AC 572, where he made plain that Fairchild did not establish any overarching principle. On the contrary, it was narrowly confined. The Judge held "that this is directly applicable to this scenario where there are various strains of covid-19 and Cs would not be able to establish whether they contracted that strain in the community or the workplace".
18. At paragraph 23, the Judge considered that the appellants fell within the scenario posited by Lady Hale at paragraph 128 of Barker, where she held that "one way of explaining Fairchild is that all were in breach of duty and one of them must be guilty ... That rationale does not apply, or certainly with the same force, if there are other, non tortious causers in the frame".
19. At paragraph 25, the Judge found that "the Cs are going to face a nigh on impossible task in establishing a causal link between any breach of duty on the part of D and their contracting Covid-19. It would require significant development of the law for any claim to succeed and such developments by courts have been strongly discouraged by the most senior courts in the land..."
20. At paragraph 30, the Judge criticised the position of the appellants regarding the state of their evidence. If it was the position that one or more of them had not been anywhere that might lead to exposure to the virus, other than the factory, she agreed with Ms Adams KC that one would have expected that to have been pleaded. This led the Judge to categorise the appellants' stance was in effect to ask the wrong question. In Okpabi v Royal Dutch Shell PLC [2021] UKSC 3, Lord Hamblen held that the question to be answered on an application for summary judgment was not whether there is a clear prospect that new material will become available that is likely to give the appellants a real prospect of success but, rather, whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has a real prospect of success (paragraphs 127-128).
21. At paragraph 31, the Judge held that the appellants were, in effect, merely hoping "that something may turn up. With respect, something should have turned up before proceedings were issued."
22. Having so held, the Judge said at paragraph 31 that, even if causation had been investigated "I am satisfied based on my consideration of the caselaw referred to above that the Cs have no real prospect of succeeding on the claim." As to the second limb of CPR 24.2, the Judge held at paragraph 33 that the "higher courts have made it clear that the courts are not the venue to try to develop cases in non asbestos related cases and open up a field of litigation as happened in relation to mesothelioma cases". Although she did not say so, the Judge was plainly referring to Parliament as the appropriate place for formulating any further exceptions to the "but for" test of causation.
23. In the light of these findings, HHJ Owens recorded at paragraph 34, that she had considered the overriding objective in CPR 1.1 of enabling the court to deal with cases justly and at proportionate cost. By giving summary judgment and so preventing the claims from going to trial, she was dealing with them "justly and at proportionate cost", given their "relatively low value ...".

THE APPEAL

24. Permission to appeal was granted by Pepperall J, following a hearing on 19 December 2024. The grant was limited to the appellants' grounds (2), (3) and (4).
25. Ground (2) argues that the Judge failed to take into account fully or at all the fact that the respondent had not provided disclosure or witness evidence and that it was accordingly premature for the appellants to obtain expert evidence, which would be reliant on such documentary and witness evidence.
26. Ground (3) submits the judge failed to appreciate or have regard to the importance of such documentary, witness or expert evidence as to causation.
27. Ground (4) complains that the Judge referred to the need to deal with claims at proportionate cost but also criticised the appellants for not making an application for pre-action disclosure and for not instructing an expert to opine without having the benefit of sufficient evidence to allow the expert to do so. This, it is said, renders the Judge's decision unjust.

DISCUSSION

28. It is a trite but nonetheless important point that the summary judgment process is somewhat draconian in nature and should be reserved for those cases where it can readily be ascertained that the requirements of CPR 24.2 are met. Any application for summary judgment is bound to involve some degree of forensic analysis; but the courts have repeatedly warned against conducting what has come to be described as a "mini trial" of the case: Swain v Hillman [2001] 1 All ER 91. In paragraph 5 of the judgments in Doncaster Pharmaceuticals Group Ltd v The Bolton Pharmaceutical Company 100 Ltd [2006] EWCA Civ 661, Mummery LJ said that, in his experience, "there can be more difficulties in applying the 'no real prospect of success' test on an application for summary judgment ... than in trying the case in its entirety ... The decision-maker at trial will usually have a better grasp of the case as a whole, because of the added benefits of hearing the evidence tested, of receiving more developed submissions and of having more time to digest and reflect on the materials." At paragraph 6, he went on to say that the "outcome of a summary judgment application is more predictable than a trial." One reason was that the outcome of the application can be influenced more than at a trial "by the degree of professional skill with which it is presented to the court and by the instinctive reaction of the tribunal to the pressured circumstances in which such applications are made." At paragraphs 10 and 11, Mummery LJ urged courts to be alert, both to a defendant making its case against summary judgment look more complicated than it really is; and to a claimant seeking summary judgment presenting "the legal and factual issues as simpler and easier than they really are and urges the court to be 'efficient' ie produce a rapid result in the claimant's favour."
29. Mummery LJ reiterated that caution should be employed in resorting to summary judgment "where there are conflicts of fact on relevant issues, which have to be resolved before judgment can be given" (paragraph 17). But he also urged hesitation before making a final decision without a trial "where, even though there is no obvious conflict of fact at the time of the application, reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case." (paragraph 18).
30. The exhortation in paragraph 18 of Doncaster Pharmaceuticals is of particular significance in the present case. We have seen that, as well as finding that the appellants could not, as a matter of law, establish causation, even assuming a breach of duty on the part of the respondent, the Judge found that the appellants had failed to adduce the evidence going to causation she would have expected to have been filed by this stage. The Judge cited Lord Hamblen in Okpabi: see paragraph 20 above.
31. In practice, when addressing the approach mandated by Okpabi, it may be difficult to draw the line between cases where potential evidence is prayed in aid merely in the hope that it will provide a real prospect of success and those where such evidence is likely to add to or alter evidence which, seen in its own terms as at the date of the application for summary judgment, has the ability to found or at least point towards an arguable case. It cannot be a requirement that the existing evidence has itself to show an arguable case, since that would make it unnecessary to consider the impact of the potential evidence (unless it could realistically undermine what would otherwise have been an arguable case). In deciding on which side of the line the potential evidence falls, it may be helpful to examine the reasons why the potential evidence has not yet been adduced, bearing in mind any relevant procedural framework for the case under consideration. I shall return to this issue later.
32. In her skeleton argument (which was also before Pepperall J) and in her oral submissions, Ms Prager KC submitted that the Judge erred because she did not appreciate the nature of the causation case being advanced by the appellants. Their primary position was that there was at least a realistic possibility that causation could be established on the "but for" test. There would, accordingly, be no need to argue for any extension of the Fairchild principle.
33. Ms Adams submitted that this approach was not covered by the grounds of appeal on which permission to appeal had been granted. I do not accept this submission.
34. Read together, grounds (2) and (3) are concerned with whether the Judge was right to reach a decision on causation in the absence of disclosure and witness evidence. The nature of that evidence would go to whether the appellants were more likely to have contracted Covid-19 as a result of exposure at the factory, as opposed to anywhere else. Ms Adams pointed to page 17 of the transcript of the hearing, where she is recorded as saying in her closing submissions that Mr Gray, counsel for the appellants before the Judge, "doesn't take issue with my interpretation of it"; namely, Fairchild and the situations in which the law will permit an exception to the "but for" test. It may well be right that Mr Gray did not take exception to Ms Adams' interpretation, which finds expression in paragraphs 17 to 24 of the judgment. Indeed, it is difficult to see how he could have done otherwise. But this serves only to strengthen the fact that the Judge misunderstood the important point that was being made by the appellants on causation.
35. At page 15 of the transcript, Mr Gray accepted that where the present case fitted within the Fairchild authorities "will depend on what evidence comes out, both lay and expert..." He then raised the prospect of the evidence showing that an appellant showing that their exposure to the community was so limited that the court could "act on the but for causation". It is true that shortly after he is recorded as using the word "concession" but the transcript is incomplete at this point, owing to inaudibility. On any reasonable view, Mr Gray was not making a concession that the respondent's view of causation was the only view that the court might take at a trial. Otherwise, his previous utterance would have been superfluous.
36. In rejecting Ms Adams' pleading submission, I observe that, at paragraph 24 of his judgment on permission, Pepperall J referred expressly to the issue of causation. His conclusion at paragraph 25, that the Judge was arguably setting herself up as the expert on causation cannot be reconciled with the contention that the appellants' case on causation is not covered by the grounds on which permission to appeal was granted.
37. The causation issue stands front and centre of this case. At paragraph 16 of the judgment, the Judge recorded the appellants' submission that, on the scenario in which an appellant lived alone, travelled to work alone and had not gone out at all, he or she could prove that their sole exposure to the virus was the workplace. Although the Judge did not say so, such a scenario would permit the appellants to succeed on the "but for" test. In paragraphs 21 to 26, however, the Judge merely looked at matters by reference to the Fairchild authorities. Ms Adams submits that this was the only correct way of looking at the causation issue. I do not accept that submission. The scenario posited by the appellants was not a fanciful one. The appellants had asserted that a very large number of employees at the factory caught Covid-19 over a short period in mid 2020; that they were required to work in very close proximity, shoulder to shoulder with each other, and that the factory was closed shortly thereafter as a result of the intervention of Public Health Wales. For the purpose of the summary judgment application, those matters had to be accepted.
38. Of course, the appellants' case might founder on the application of the "but for" test because of the nature of the Covid-19 virus. But the Judge fell into error in effectively conducting a "mini trial" without the benefit of the evidence that would have been available had the case been allowed to proceed to trial in the normal way. Thus, at paragraph 20 she found that "this workforce was exposed to covid everywhere, not just in the chicken processing plant." At paragraph 21, she found that "covid 19 is prevalent in the community at large as well as in the D's chicken processing plant."
39. These findings have a superficial attraction. The broad contours of the Covid-19 pandemic are generally known. What is potentially relevant to the present claims is, however, the prevalence of Covid-19, certainly in the area containing the factory and perhaps further afield, depending on the places of residence of the appellants. The Judge's apparent conclusion that the "but for" test could not apply because of the pandemic was one that could not properly be reached within the confines of an application for summary judgment. In saying what she did, she was, in substance, making herself the expert, as Pepperall J suggested at paragraph 25 of the permission judgment.
40. If the evidence were to show, for instance, a relatively low level of Covid-19 on Anglesey in June 2020 and an appellant or appellants whose pattern of behaviour outside work was such as to suggest limited exposure to the virus; and if the reason for closing the factory (whether in agreement with Public Health Wales or not) was because of serious failings to control the spread of the virus at the factory, then it is plainly not fanciful for the appellants to be able to show on the balance of probabilities that their illness would not have been sustained but for the respondent's breach of duty.
41. I therefore turn to the Judge's criticism of the appellants for not adducing evidence on causation. I refer to what I said at paragraph 31 above. The Judge was concerned that an expert in causation had not been instructed to give an opinion, as well as the area of expertise considered by the appellants' solicitors to be appropriate for this purpose.
42. Ms Adams said that in clinical negligence cases, evidence on medical causation must be obtained and the issue pleaded at the outset. Ms Prager countered that the present case is not one of clinical negligence; nor is it a case involving multiple employers. The present case was more akin to a claim based on contracting norovirus, where expert evidence as to causation would not be expected at such an early stage.
43. I agree with Ms Prager that the analogy with clinical negligence cases is inapt. The present case cannot be fitted neatly into any particular category. There was nothing inherently problematic in procedural terms in the approach adopted by those acting for the appellants, so far as expert evidence was concerned. The appellants pleaded that they "contracted the virus as a result of breach of statutory duty, breach of contract and negligence" on the part of the respondent" (paragraph 9 of the Particulars of Claim). Regardless of the particular discipline of the proposed expert, it was appropriate to await the outcome of the disclosure stage before instructing the expert because aspects of that disclosure would be relevant to the expert's report. Although the Judge was sceptical that the area of expertise of the proposed expert was problematic, for the purpose of proving causation, her decision on the application for summary judgment did not rest on that concern. That is understandable. I do not regard this issue as having any material bearing on the application. It would have been premature for the court to have formed a view on the ability of an as yet unknown expert to assist the court in resolving the causation issue, particularly when the nature of the evidence was not fully known.
44. At the hearing before me, Ms Adams informed me that considerable disclosure had, in fact, taken place in late 2023, before the summary judgment/strike out application was heard by the Judge. This included disclosure regarding the measures taken at the factory with regard to Covid-19. I do not question that this is so. It does not, however, feature in the judgment as a reason for the Judge's decision on summary judgment. As far as I understand, there is still evidence to be adduced concerning the reasons for the involvement of Public Health Wales in the decision to close the factory. This would potentially be able to shed light on matters relevant to any link between the factory and the appellants' contracting Covid-19.
45. I agree with the appellants that there is a contradiction between the Judge's categorisation of the claims as "of a relatively low value" and her criticism of the appellants for not commissioning an expert report before the emergence of the full picture upon which the expert would need to opine. In a claim where the costs of an expert are likely to be significant, when set against the likely monetary value of the claims, it is plainly proportionate to proceed as the appellants did.
46. Ms Adams submitted that evidence concerning the prevalence of Covid-19 in the area at the relevant time could be obtained by the appellants, otherwise than by seeking disclosure from the respondent. I accept that is so. It did not, however, feature in the Judge's reasoning. On the contrary, as I have shown, the Judge accepted as fact that the prevalence would have been such that the appellants were not going to be able to show establish causation otherwise than by seeking a new extension to Fairchild. In any event, this submission invites the court to engage in a degree of procedural scrutiny that is at odds with the the rationale for CPR 24.3.
47. At paragraph 30 of the judgment, the Judge criticised the failure of the appellants to adduce evidence about their behaviour, outside the factory. The point I have made at the end of paragraph 46 applies here also. The pleaded case was that the appellants contracted Covid-19 at the factory because of the respondent's breaches of duty. There was evidence that they had caught Covid-19 and when they had done so. There was evidence from them about the extent to which the workforce contracted the virus at that time. There was evidence as to what, on its face, appeared to be problematic working conditions. In these circumstances, the potential evidence about the appellants falls into the second category identified by Lord Hamblen in Okpabi: it is evidence that may materially add to or alter the evidence relevant to whether the claims have a real prospect of success. The potential evidence is also of the kinds described by Mummery LJ at paragraphs 17 and 18 of Doncaster Pharmaceuticals.
48. If witness statements on all issues were required to be adduced for the purposes of an application for summary judgment, when in the normal course they would not be required at this point before the anticipated trial, this would encourage the use of summary judgment to conduct the very sort of mini-trial, which the higher courts consistently deprecate.
49. I therefore find that the Judge erred in concluding that the requirements of CPR 24.2(a)(i) were satisfied. The Judge could not be satisfied that the appellants had no real prospect of succeeding on the claims. Like Pepperall J, I consider they face an uphill task. But that is not the test.
50. If there had not been such a real prospect, I would have accepted that the Judge did not err in finding that the appellants could not have surmounted CPR 24.2(b), which requires there to be no other compelling reason why the case should not be disposed of at a trial. If, at the application for summary judgment, it could have been shown that the appellants could succeed only by persuading the court to identify a new exception to Fairchild, there would be no real prospect of their doing so at trial and, as the Judge held at paragraph 33 of the judgment, there would have been no other compelling reason to allow the case to go to trial.
51. The appeal is allowed.