A local authority has been allowed to defend one of the biggest mesothelioma claims in UK history despite acting with what the court described as an ‘inexcusable’ delay.
Default judgment had been given against the London Borough of Richmond after failing to acknowledge service of the claim and failing to initially enter a defence.
The local authority was the third defendant in a claim from a man who sued over alleged exposure to asbestos fibres when he worked as a teenager in the 1980s at the Richmond Ice Rink.
The claim was worth at least £6m because the claimant, whose condition was terminal, was aged just 48 at the time of last May’s hearing (the resulting judgment was published this week). It was widely accepted this was one of the largest recent claims for mesothelioma.
Dexter Dias KC, sitting as a deputy High Court judge in PXC v AB College & Ors, stressed the importance of promptness and said that the local authority had to justify setting the default judgment aside.
But against the delay in responding, the court heard ‘very clear and consistent’ indications that the council had a viable and realistic defence concerning the ownership of the ice rink.
‘If so, put simply, Richmond is just the wrong defendant,’ added the judge. ‘How can the court weigh these against one other, especially when an entirely decent man is dying and will leave behind a devoted wife and a nine–year-old son? The court must not become desensitised to human suffering, but must not be led astray by it, harsh though that sounds.’
He said it would be unjust for a defendant with no liability to have to pay substantial damages, and that shutting down a defence with real prospects of success would not inspire public confidence in the legal system, particularly when taxpayers’ money would be required to pay the damages.
‘Not to set aside would, to my mind, equate to “punishing” the defendant for their procedural failures,’ the judge added. ‘That would be wrong in principle. However, the local authority does richly deserve rebuke in this case.’
The default judgment was set aside and the case will now proceed to trial on liability. The judge admitted that the claimant may have died by the time the case comes to a final hearing, and he made the decision on setting aside default judgment ‘with a heavy heart’.
