Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK): SC 29 Jul 2019

The court was asked as to the making public of papers filed by the parties during litigation.
Held: The appeal failed, and the cross-appeal succeeded. the Court of Appeal had jurisdiction under CPR r 5.4C(2) to make the order which it had made. There remained also an inherent jurisdiction to make order going beyond the Rules. Since that Court had underestimated its jurisdiction and the applicable principles, the matter was referred back to he High Court judge to decide, in accordance with the stated principles, whether the claimant should have access to any other documents.
Lady Hale said this: ‘The circumstances in which this important issue comes before the court are unusual, to say the least. Cape Intermediate Holdings Ltd (‘Cape’) is a company that was involved in the manufacture and supply of asbestos. In January and February 2017, it was the defendant in a six-week trial in the Queen’s Bench Division before Picken J. The trial involved two sets of proceedings, known as the ‘PL claims’ and the ‘CDL claim’, but only the PL claims are relevant to this appeal. In essence, these were claims brought against Cape by insurers who had written employers’ liability policies for employers. The employers had paid damages to former employees who had contracted mesothelioma in the course of their employment. The employers, through their insurers, then claimed a contribution from Cape on the basis that the employees had been exposed at work to asbestos from products manufactured by Cape. It was alleged that Cape had been negligent in the production of asbestos insulation boards; that it knew of the risks of asbestos and had failed to take steps to make those risks clear; indeed, that it obscured, understated and unfairly qualified the information that it had, thus providing false and misleading reassurance to employers and others. Cape denied all this and alleged that the employers were solely responsible to their employees, that it did publish relevant warnings and advice, and that any knowledge which it had of the risks should also have been known to the employers.’
and: ‘Voluminous documentation was produced for the trial. Each set of proceedings had its own hard copy ‘core bundle’, known as Bundle C, which contained the core documents obtained on disclosure and some documents obtained from public sources. The PL core bundle amounted to over 5,000 pages in around 17 lever arch files. In addition, there was a joint Bundle D, only available on an electronic platform, which contained all the disclosed documents in each set of proceedings. If it was needed to refer to a document in Bundle D which was not in Bundle C, it could immediately be viewed on screen, and would then be included in hard copy in Bundle C. The intention was that Bundle C would contain all the documents referred to for the purpose of the trial, whether in the parties’ written and oral opening and closing submissions, or in submissions or evidence during the trial.’


Baroness Hale of Richmond P, Lord Briggs, Lady Arden, Lord Kitchin, Lord Sales JJSC


[2019] UKSC 38, [2019] WLR(D) 462, [2019] 3 WLR 429, [2019] HRLR 15, [2019] EMLR 24, [2019] 4 All ER 1071, [2020] AC 629, [2020] 1 All ER (Comm) 95, [2019] WLR(D) 462


Bailii, Bailii Summary,


England and Wales

Cited by:

CitedCherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
CitedGallagher v Gallagher (No 1) (Reporting Restrictions) FC 13-Jun-2022
H sought an order restricting reporting of the divorce financial remedy proceedings, or an anonymity order.
Held: The application was refused save as to identification of the children, and certain tax matters. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 16 June 2022; Ref: scu.640086