13 September 2021

SURPRISE! Now, Show Cause!

On 27 July 2021, the Court of Appeal handed down judgment in Ministry of Defence v Sivaji [2021] EWCA Civ 1163 which addresses the procedural rules for “show cause” hearings under CPR PD3D.

Occasionally, judges act unpredictably. This can range from an awkward question to an unexpected costs order. That is all par for the course, and it is part of our jobs as lawyers to deal with these situations. Then, there are extreme examples that leave the advocate scratching their head and asking “what just happened?”. This is one of those cases.

On 19 August 2020, the parties to a mesothelioma case attended a CMC before HHJ Gore QC, expecting to deal with consequential orders arising from an application to amend Particulars of Claim. The Defendant left that hearing with a debarring order made against it which effectively prevented the Defendant from contesting breach of duty.

How did this happen? The answer lies in a misinterpretation of the “show cause” procedure under CPR PD3D.

The Underlying Claim

The Claimant in this case is the executrix of the estate of Mr Bhanu Sivaji, who sadly passed away due to allegedly negligent exposure to asbestos by the Defendant at a naval dockyard in Singapore between 1952 and 1968. The case gave rise to a number of complex issues, including the applicable law, an issue of immunity applying to the Defendant and whether the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 have extraterritorial application.

The Particulars of Claim originally pleaded breaches of English law only. 

The Procedural History

Those practising in asbestos claims will be familiar with the show cause procedure and the asbestos list. The matter originally came before Master Thornett, who ordered that the action was unsuitable for the show cause procedure and would be tried in the Queen’s Bench Division List. The Master ordered the matter to be listed for a preliminary trial to narrow a number of the issues in the case. The Claimant applied to amend her Particulars of Claim to add causes of action under Singaporean law.

This application came before HHJ Gore QC on 8 July 2020, at which time the Claimant was granted permission to amend. It was agreed that there would be a further hearing to address the orders consequential to the application.

The Hearing on 19 August 2020

When the matter came back before HHJ Gore QC, the Judge decided that he would treat the hearing as a “show cause” hearing. He debarred the Defendant from defending the allegations that the Deceased had been exposed to substantial and injurious quantities of asbestos. He ordered that the matter be set down for a single trial, as opposed to the preliminary issue trial previously directed by Master Thornett.

Cue a rather awkward conversation between counsel and their instructing solicitor…

The Appeal in Ministry of Defence v Sivaji [2021] EWCA Civ 1163

Unsurprisingly, the Defendant appealed the order. There was a wide-ranging, and wholly successful, attack on the reasoning of the court below. Of note to those practising in this area are the following points: 

  1. The Court of Appeal held that, absent a material change in circumstances, it was not open to the Judge to vary the Master’s original case management decision.
  2. There were a number of significantly complicated preliminary issues that needed to be addressed before liability was determined.
  3. The Defendant had not effectively been placed on notice of the fact that this was to be a show cause hearing, which rendered the Judge’s criticism of a lack of evidence adduced by the Defendant unfair.
  4. The Claimant argued that the CPR and White Book commentary provided that the show cause requirement could be imposed at successive hearings, and that this was what the Judge did. The Court of Appeal gave this argument short shrift. The court held that the course of action taken by the Judge was “procedurally unfair and unjust”. The show cause requirement had been dispensed with by the Master, and the parties had proceeded accordingly. There was no reason for the Defendant to expect that “the Judge would unilaterally raise it without warning or invitation from counsel.” The procedural rules in CPR PD3D were not followed. The judgment of the court below failed to address how the Claimant had satisfied the burden of proof.

The appeal was therefore allowed. 

Comment

Show cause hearings are supposed to be somewhat rough and ready. That is the nature of the beast. However, they should not be so “rough” that all legal principles relating to procedure and the burden of proof are abandoned. The parties are entitled to notice that the argument will be heard, so that they are “ready” to address the issues.

Had this decision been allowed to stand, it would have required Defendants to be ready to defend a show cause application at any procedural hearing. That cannot be fair and just.

The decision underlines the importance of the procedure in CPR PD3D.

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Philip Godfrey

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Ropewalk Chambers

Ropewalk Chambers has, over many decades, established a market-leading reputation for detailed and specialist expertise in the field of Industrial Disease litigation.

Whether asbestos, noise, dust, vibration, stress or any other insidious process, including those which are newly emerging, its members have consistently appeared in the leading cases, determining the limits of liability, causation and quantum at first instance and appellate level.

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