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Dowdall v William Kenyon & Sons Limited [2014] EWHC 2822 (QB) - 12/08/14


The claimant had previously been diagnosed with suffering from asbestosis and pleural plaques following exposure to asbestos whilst employed by a number of employers. In 2003 an action against seven of those employers was settled for £26,000. Since then, the claimant had contracted mesothelioma and brought an action against three former employers who had not been party to the 2003 settlement.

The Defendants contended that they should have been sued in the first action and, if they had been, they would have joined in the 2003 settlement. That would have given them a complete defence of compromise to the present claim. They therefore argued that the claim was an abuse of process. They also argued that the claimant was estopped (by cause of action estoppel) from bringing the new proceedings and that in any event the new claim was barred by the Limitation Act 1980.

It was held that there was no abuse. The defendants were not party to the previous action and therefore had not been 'twice vexed'. The claimant's decision not to sue them was not so that he could 'have his cake and eat it too' but for the genuine reason that his solicitor had been unable to trace an insurer to meet claims against them.

In respect of cause of action estoppel, the settlement went to the risk of contracting mesothelioma and was therefore not an estimate of the full value of his loss had mesothelioma developed. The claimant was therefore not estopped from bringing the instant claim. The judge acknowledged that this might entitle the defendants to bring contribution claims against the seven employers party to the 2003 settlement and that issues may arise in those proceedings.

As to the limitation defence, the claimant had the requisite knowledge as early as 1998 and therefore the Judge considered his discretion under section 33 of the Limitation Act 1980. The Judge did not consider that defendant witnesses who had passed away would be able to support any viable defence to the claim. The Judge considered that the claimant had very good prospects of success and, in balance, that the defendants' evidential prejudice was outweighed by the prejudice the claimant would suffer if he lost the claim.