Foot-Dragging Council Granted Leave to Defend Ice Rink Asbestos Claim


Those who drag their feet in litigation may deserve stern judicial rebuke, but should they be shut out from pursuing or defending a claim? The High Court pondered that issue in the case of a young father who was dying from asbestos-related cancer.

The successful businessman and entrepreneur was in his 40s when he was diagnosed with mesothelioma, a cancer of the lining of the lungs almost invariably associated with asbestos exposure. That was an unusually young age in that the condition takes many years to develop and victims are commonly in their 60s or older. Despite punishing treatment, his death in due course was tragically inevitable.

A personal injury claim was brought against a local authority, asserting that he was exposed to asbestos as a schoolboy whilst doing a holiday job at an ice rink. Back-of-house pipework was said to have been lagged with shabby asbestos coverings. Given his youth and the extent of his wife and child’s financial dependency on him, his claim was valued at over £6 million.

Default judgment was entered in his favour due to the council’s failure to defend, or even acknowledge, the claim within the relevant time limit. Belatedly, however, the council applied to set that judgment aside on the basis that it neither occupied, managed nor controlled the ice rink, which had long since been demolished and was said to have been in private hands.

Ruling on the matter, the Court noted that the council richly deserved rebuke for its serious and inexcusable lack of promptness in both responding to the claim and making the application. An entirely decent family man was dying and any further delay in the proceedings would entail a real risk that he would not survive to see the outcome of his case. His uncertainty as to whether his wife and child would be provided for after his death would be prolonged.

On the other hand, a great deal of public money was at stake and the council’s defence had a real prospect of success. There was a live, evident and non-fanciful chance that it was simply the wrong defendant. With a heavy heart, the Court found that the balance came down in favour of allowing the application and permitting the council to defend the claim.

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