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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Sparkes v London Pension Funds Authority & Anor [2021] EWHC 1265 (QB) (14 May 2021) URL: https://www.bailii.org/ew/cases/EWHC/QB/2021/1265.html Cite as: [2021] EWHC 1265 (QB) |
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Case No: QB-2018-006940 |
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE ORDER OF
MASTER THORNETT DATED 12 JUNE 2020
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
____________________
PAUL SPARKES |
Claimant/ |
|
| (as personal representative of PAULINE SPARKES, deceased) |
Appellant |
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| - and - |
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| LONDON PENSION FUNDS AUTHORITY |
Defendant |
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| - and - |
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| LEIGH ACADEMIES TRUST |
Third Party Respondent |
____________________
The Defendant and the Third Party Respondent did not appear and were not represented.
Hearing date: 1 December 2020
____________________
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down are deemed to be 10:30 am on 14 May 2021.
Mr Justice Murray :
Sparkes,
as personal representative of Mrs Pauline
Sparkes
deceased, for an order for disclosure and inspection of documents from a third party respondent, Leigh Academies Trust ("the Trust"). The Master gave an ex tempore judgment ("the Judgment"), the transcript of which is in the appeal bundle.
Sparkes
appealed on the grounds that the learned judge failed to apply the appropriate test under CPR r 31.17, took into account irrelevant factors and failed to take into account relevant factors, and therefore erred in the exercise of his case management discretion.
The claim
Sparkes
and the executor of her estate. It is his case that Mrs
Sparkes
contracted mesothelioma as a result of her occupational exposure to asbestos. She died on 10 March 2015.
Sparkes
was negligently exposed to asbestos while working as a teacher at Kidbrooke Comprehensive School ("the School") for the Inner London Education Authority ("ILEA") between 1970 and 1975. At some stage the LPFA assumed the liabilities of ILEA by operation of statute. The School is now known as the Halley Academy.
Sparkes
worked was contaminated with asbestos, which was incorporated into the fabric of the school buildings. The floor and ceiling tiles contained asbestos. The wall panels and lagging were made of asbestos. It is alleged that Mrs
Sparkes
would almost inevitably have been exposed to asbestos during the course of construction of a new sixth form block at the School in 1973.
Sparkes
was exposed to material or harmful quantities of asbestos and that such exposure gave rise to foreseeable harm.
The application for disclosure under CPR r 31.17
i) As a result of her illness and death, Mrs
Sparkes
was unable to provide a statement. The principal witness evidence in support of the case is therefore the evidence set out in the witness statements of Mr Robert Hope and Ms Patricia McHugh.
ii) On 12 July 2018, the appellant's solicitors, Royds Withy King ("RWK"), were informed by the Premises Manager of the Halley Academy that the School had retained "boxes of old documents" relating to building and maintenance works. These boxes had been saved from destruction in the 1990s. RWK asked the Premises Manager to copy these documents or to allow inspection on site.
iii) The Premises Manager spoke to his own manager and, by email sent on 16 July 2018, referred RWK to the Royal Borough of Greenwich ("RB Greenwich") on the basis that RB Greenwich was responsible for "all asbestos issues" prior to the institution of the academy at the School.
iv) The ultimate destination of the historical liabilities of the ILEA was not entirely straightforward. Further investigation by the appellant showed that the LPFA had inherited the relevant contingent liabilities.
v) On 13 March 2019, RWK wrote to the Trust, which is the body now responsible for the School, asking the Trust to produce the documents that had been identified by the Premises Manager. In this letter, RWK made clear that it was seeking historic documents pertaining to the structure of the school and building work that had been undertaken over the years, including any document that might relate to the disturbance and/or addition and/or removal of asbestos containing materials during Mrs
Sparkes's
period of employment. In that letter, RWK requested disclosure or the opportunity to attend the school to inspect the documents.
vi) The Trust sent a holding response to RWK on 25 March 2019.
vii) Having had no substantive response, RWK sent a chasing letter to the Trust on 27 June 2019. RWK noted that it had previously been told that the documents were held at the School rather than in an archive.
viii) On 2 July 2019, the Trust disclosed papers relating to the 1970s, a full set of which are included in the appeal bundle, amounting to about 46 pages. The letter enclosing the papers was signed on behalf of the Trust by Mr J Taylor, Deputy Business Director.
ix) Having received what it described as a "slim file" of papers disclosed by the Trust, the appellant was of the view that it was unlikely that these were all of the relevant documents, given the reference by the Premises Manager to there being "boxes of old documents" relating to building and maintenance at the School
x) Accordingly, on 4 October 2019 RWK wrote to the Trust, for the attention of Mr Taylor, and explained, in the light of what had been said by the Premises Manager about (a) the contents and (b) the volume of the existing papers, that there may be other relevant documents. RWK confirmed that they were prepared to attend to inspect the documents on site (so as to avoid any cost to the Trust itself) and that no proceedings were being contemplated against the Trust.
xi) In response to the letter, on 14 October 2019 Mr Taylor telephoned Ms Jennifer Seavor, a Senior Associate at RWK, who was the solicitor who had signed the letter to the Trust of 4 October 2019. After the call, she prepared an attendance note, the substantive part of which reads in its entirety as follows:
"JSS taking a call from Jack Taylor at the Leigh Academies Trust. He has received my letter. He said that they have provided all of the documentation relevant to the 1970s.
I explained to him that from the information I have been given there are apparently boxes of historic documents relating to the premises which may be relevant. What I've been sent is only a small bundle. He said that he has spoken to the premises manager who has been there for many years, they have gone through all of the documents and the documents they have sent me are the only ones from the 1970s, which is the period of relevance.
Jack asked if there was anything else I needed at the moment. I said not at present. I'm due to speak to the barrister about this case soon so if we think it would be helpful to see earlier documents etc I will come back to him at that stage."
xii) On 28 October 2019, having consulted counsel, RWK wrote to the Trust to explain that it required disclosure of additional documents, namely, those regarding building, maintenance, renovation, or demolition works at the School before and after Mrs
Sparkes's
period of employment. RWK again offered to visit the School to inspect the documents or to pay copying costs.
xiii) The Trust did not acknowledge or reply to this letter despite further chasing letters sent on 23 December 2019, 6 January 2020, and 26 February 2020.
xiv) On 7 May 2020, with the trial date for the claim approaching, the appellant filed the Disclosure Application.
xv) On 21 May 2020, RWK wrote to the Trust, by post (to the Trust's address at Carnation Road, Strood, Rochester, Kent ME2 2SX) and email (info@latrust.org.uk, which was the email address on the headed notepaper used by the Trust for its letters to RWK of 25 March 2019 and 2 July 2019), notifying the Trust of the telephone hearing of the Disclosure Application listed for 12 June 2020 before Master Thornett and enclosing the application notice, draft order and notice of hearing.
The decision of Master Thornett on 12 June 2020
"On the face of this draft [order], it would seem to be a very wide request that would necessitate a considerable amount of research and consideration spanning potentially decades."
i) the passage of time between the first invitation by the appellant to the Trust to produce documentation to the first specific approach by the appellant to the Trust; and
ii) the fact that the Trust did produce some documentation in response to the appellant's request.
"… any forensic process acknowledging the efforts taken by [the Trust] … [and] then comparing and contrasting with it what further [documents] might be expected to exist".
"… would have expected a much more specific description and forensic analysis to have been identified to Mr Taylor as to what might be expected still to be located and provided. And from this, in the event of no further assistance, identification as to what reasonably might still be available."
"At no stage it seems to me, other than in the early generic references to 'disclosure or inspection' in the formulaic way in which lawyers might refer to it, at no stage have the claimant's solicitors … sought to take the obvious and reasonable step of breaking the impasse and asking to arrange for a specific physical inspection so that they could see for themselves what more existed or might exist. At no stage did they appear to have invited through threat of Application to the court a specific inspection."
"… this application is hopelessly vague and lacking in specificity. It is unworkable from a Respondent's viewpoint and it is disproportionate to expect a third party to try to respond to it. … I cannot, sympathetic as I am to the principle as to how certain documentation could be relevant, today grant this application as it stands. Neither am I able to identify a shape or form of an order that could be intelligible."
The legal framework
"Before the court can interfere it must be shown that the judge has either erred in principle in his approach or has left out of account, or has taken into account, some feature that he should, or should not, have considered, or that his decision was wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale."
"The court may make an order under this rule only where— "
(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
(b) disclosure is necessary in order to dispose fairly of the claim or to save costs."
i) the jurisdiction is potentially intrusive and therefore the court must ensure that it is not used inappropriately, even where the application is not opposed: Flood at [29];
ii) the court retains a discretion even where the relevant criteria are met: Frankson v Home Office [2003] EWCA Civ 655, [2003] 1 WLR 1952 at [13];
iii) ordering disclosure against a non-party is the exception rather than the rule: Frankson at [10]; and the jurisdiction should be exercised with caution: Re Howglen Ltd [2001] 1 All ER 376 (ChD) at 382h;
iv) where a party seeks a class of documents, the relevant test must be satisfied for each document in the relevant class; the burden cannot be put on the respondent to identify those documents within the class that do, and those that do not, meet the necessary condition of relevance: Three Rivers District Council v Governor and Company of the Bank of England (No 4) [2002] EWCA Civ 1182; [2003] 1 WLR 210 (Chadwick LJ) at [36];
v) for the purposes of CPR r 31.17(3), documents "are likely to support the case…" if they "may well" do so as opposed to it being "more probable than not" that they will do so, this being a higher test than the "real prospect" test applied, for example, under CPR r 24.2 or CPR r 52.6: Three Rivers DC (No 4) at [32]-[33].
Grounds of appeal
i) Ground 1: the judge failed to apply the appropriate test under CPR r 31.17;
ii) Ground 2: the judge failed to consider the potential importance of the objective documentary evidence;
iii) Ground 3: the judge considered irrelevant matters and failed to consider relevant matters; and
iv) Ground 4: the judge erred in the exercise of his discretion.
Submissions
Sparkes's
period of employment (1970-1975) could be relevant.
Sparkes
was not able to provide a statement as a result of her illness and death. The case therefore rested on the evidence of others. In that context, relevant contemporaneous or quasi-contemporaneous documents, if available, were particularly important. It was the appellant's case that Mrs
Sparkes
was exposed to asbestos during the course of her employment at the School. The best evidence in support of that case was likely to be documents generated during the course of the building works.
Sparkes
would have been exposed to asbestos during the course of her work or, conversely, that the School had no significant asbestos legacy and/or took proper precautions. Either way, the documents would clearly be relevant and necessary for the just disposal of the case.
i) The Master placed inappropriate weight on there having been a significant lapse of time before making the Disclosure Application. Having regard to the appellant's statement in support of the Disclosure Application, it was difficult to see why the Master did so. The appellant had naturally attempted to resolve the matter without making an application.
ii) The Master was wrong to find that there was nothing in the Disclosure Application to suggest that there were further relevant documents. The potential relevance of the documents sought was explained in the statement supporting the Disclosure Application.
iii) The Master was wrong to say that the appellant had not taken any steps to arrange a physical inspection. RWK had repeatedly offered to pay the copying charges or inspect the documents on site. It was difficult to see what more RWK could have done on the appellant's behalf to facilitate this.
iv) The Master was wrong to find that there was no evidence as to the "practicality" of disclosure by the Trust, and his conclusion that he could not make the order sought by the Disclosure Application "intelligible" was difficult to understand. Given that the relevant documents were retained at the School in a number of boxes, it was difficult to see what was impractical or unintelligible about the appellant's proposed order.
Discussion and analysis
Sparkes's
employment in the 1970s. The Trust was responsive to this, providing the roughly 46 pages of documents, copies of which were sent to RWK on 2 July 2019. Given what it had been told by the Premises Manager about there being boxes of materials held at the School, RWK was understandably sceptical that all relevant material had been located, leading to further correspondence and the telephone conversation between Ms Seavor of RWK and Mr Taylor of the Trust on 14 October 2019.
Sparkes's
employment, which might be relevant to the question of Mrs
Sparkes's
possible exposure to asbestos. RWK again offered to visit the School to inspect the documents or to pay copying costs. In effect, from this point onwards, the Trust failed to engage with the appellant's broader, but still reasonable, disclosure request.
Sparkes's
period of employment, were potentially relevant, satisfying the "may well" test referred to in Three Rivers (No 4). Properly understood, the Disclosure Application did not seek to require the Trust to undertake a disproportionate, onerous, vague, or unfocused search. All the potentially relevant documents were in boxes at the School's premises, and RWK was offering to pay copying costs or to attend and physically inspect the boxes themselves.
Conclusion
Costs
Sparkes), and the work necessary to prepare the Disclosure Application, attend the hearing before Master Thornett, prepare the appeal and attend the appeal hearing before me.