Master Whitaker gave judgment in a show cause hearing, a fatal mesothelioma case where the deceased had worked for an employer from 1956 and was exposed to asbestos by the defendant which was a partnership prior to its incorporation in 1973. The company is still in existence but was not insured entirely for the damage.
The defendants denied that there was any exposure to asbestos. The evidence was that, when the company became incorporated in 1973, the employees knew nothing about the change and in those circumstances, in the absence to the evidence to the contrary, the Master said it would be reasonable to assume that the limited company accepted the liabilities with the partnership.
There was no evidence to suggest that the company did not do so. He held that, where a transfer of business had taken place 30 year earlier, there should be a strong evidential inference or presumption that it was the intention of the company or whoever had taken over that they should have the burden of proving that a transfer of liabilities had not taken place. The transaction was carried out for the benefit of the employer not the employees.
He therefore ordered a trial on a preliminary issue to deal with whether exposure materially contributed to the risk of injury, and the matter of public importance of whether the defendant had taken over the liabilities of the previous partnership. He went on to say that this was of particular importance in view of the decision in the House of Lords in Barker, and said that it seemed to him an outrageous application of the decision in Barker if it should permit a company, which had the same directing minds as the partnership, to escape liability.
Latty -v- Robert Kirkland (Blyth) Limited. 15 June 2006.
What happens if the defendant doesn’t turn up at court?
The Court of Appeal recently considered the position in a property case where the claim form had been served by the court at the property which was the usual or last known residence of the defendant. A hearing date was fixed but the defendant failed to attend.
The District Judge made an order forfeiting the lease and requiring the defendant to pay arrears of rent and costs. The defendant applied to set this aside contending that they had moved out of the property some years before the claim form was served, had lived elsewhere since, and had not returned to the property.
The District Judge found that, although the claim form had been properly served, the defendant had not received notice of the proceedings or of the trial date because they were no longer residing at the property. The Judge granted the application. The claimant appealed to a Circuit Judge on the grounds that, although the defendants were unaware of the proceedings and the hearing, nevertheless they did not have “good reason” for not attending the trial. The Circuit Judge held the mere fact that the defendants were not aware of the hearing date did not afford them such “good reason”.
However the Court of Appeal allowed the defendant’s appeal, holding that parties in a continuing legal relationship are not obliged to ensure that they have in place a system for ensuring that, in the event of legal proceedings being evoked, they receive communications relating to them e.g. arrangements for forwarding post.
The mere fact that the defendant did not have such a system in place could not determine the question whether they have “good reason” for not attending the trial. The court had to have the overriding objective in mind when interpreting this.
Estate Acquisitions & Development Limited -v- Wiltshire 2006 EWCA Civ 533, 4 May 2006.