Establishing liability

It’s showdown time at Devereux Chambers, with two of the set’s leading silks about to find out which of them has been successful in the employers liability (EL) trigger litigation.

Last November, Colin Wynter QC went head to head with Colin Edelman QC in the Court of Appeal in a case that will decide whether thousands of people suffering from asbestos-related cancer mesothelioma can claim compensation.

The case has it roots in an earlier case concerning public liability: Bolton v MMI (2006). In that case it was held that for insurance purposes a person with mesothelioma suffered an injury for the first time when their tumour started to develop. From the medical evidence used in the case that would be 10 years before the symptoms began to manifest themselves. As such, the court ruled, the relevant public liability policy would be the one that was in place a decade before the tumour became symptomatic.

When the insurers involved in that case heard the outcome, they opted to apply the same reasoning to employers’ liability mesothelioma claims and declined cover, leaving their policyholder clients facing a massive bill for potential claims going back decades.

Inevitably this gave way to a High Court battle over causations brought by those policyholders against the insurers that refused compensation.

Six lead cases were chosen with claimant firms such as Irwin Mitchell, Thompsons, Reed Smith and Burd Ward instructing Wynter to represent the claimants.

DLA Piper and Plexus Law instructed Edleman to act for the defendants’ insurers, which included Independent Insurance (in provisional liquidation), BAI (Run Off), and Excess Insurance Company.

The core issue was whether the EL policy should be indemnified at the point of exposure or when the illness manifests itself.

Mr Justice Burton found in favour of the claimants, holding that the insurers’ interpretation of the terms ’sustained/suffered/contracted’ in their policy wordings had been used interchangeably in the past. The cases had always been dealt with on a causation basis and that should continue.

At the appellate court Lord Justices Rix, Smith and Burnton must decide whether to overturn that ruling. According to those close to the case if the appeal were upheld policyholders who thought they had purchased complete EL cover could find that they have no cover at all. 

One claimant lawyer commented: “Many businesses will be affected and left effectively uninsured to pay these claims; some may even become insolvent. The public sector could also suffer, with a great hole being made in the Government’s budgets to compensate victims without other recourse and, at a time when this can be least afforded, with a potential knock-on effect on public services.”

If the decision goes the other way it will mean the reinstatement of EL policy wordings as they stand and all those claimant cases that have been stayed pending the outcome will be put into action.

Counsel:

Lead Case 1

Durham v BAI (Run off)  (In scheme of arrangement)

Devereux Chambers’ Colin Wynter QC and Outer Temple’s Alison McCormick instructed by Irwin Mitchell partner Helen Ashton for the claimant.

4 New Square’s Roger Stewart QC and 3-4 South Square’s Stephen Robins instructed by DLA Piper for the defendant.

Lead Case 2

Fleming & Eddleston v Independent Insurance Company (In provisional liquidation)

Devereux Chambers’ Colin Wynter QC instructed by John Pickering & Partners partner Carolann Hepworth for the claimant.

4 New Square’s Roger Stewart QC and 3-4 South Square’s Stephen Robins instructed by DLA Piper for the defendant.

Lead Case 3

Edwards v Excess Insurance Company Limited

Devereux Chambers’ Colin Wynter QC & Andrew Burns instructed by Thompsons partner Joanne Candlish for the claimant.

Devereux Chambers’ Colin Edelman QC and Crown Office Chambers’ David Platt and Peter Houghton instructed by Plexus Law partner Stephen Phillips for the defendant.

Lead case 4

Thomas Bates & Son Limited v BAI (Run off) (In scheme of arrangement)

Exchange Chambers’ Edward Bartley Jones QC and Dr Digby Jess instructed by Burd Ward for the claimant.

4 New Square’s Roger Stewart QC and 3-4 South Square’s Stephen Robins instructed by DLA Piper for the defendant.

Lead Case 5

Akzo Nobel UK Limited & Amec v Excess Insurance Company Limited

Devereux Chambers’ Colin Wynter QC and Richard Harrison instructed by Reed Smith and Berrymans Lace Mawer for the claimant.

Devereux Chambers’ Colin Edelman QC, David Platt and Peter Houghton instructed by Plexus Law for the defendant.

Lead Case 6

Municipal Mutual Insurance v Zurich Insurance Company & Others

Two Temple Gardens’ Howard Palmer QC, Andrew Miller and Sonia Nolten instructed by Watmores for the claimant.

4 New Square’s Jeremy Stuart-Smith QC, Leigh-Ann Mulcahy and Clare Dixon instructed by Buller Jeffries for the defendant.