The claimants sought damages from the defendant on the ground that they had sustained vibration white finger in the course of their employment with the defendant. The defendant had received more than 170,000 claims, of which 50,000 remained outstanding.
In view of the large number of actions the parties entered into negotiations to draw up a claims handling agreement (the “CHA”) to dispose of the many outstanding claims without each having to go before a court.
Entitlement to an award and its amount were to be assessed in accordance with the detailed terms of the CHA. The court adopted a supervisory role and a pattern had emerged whereby review hearings would be held by the court three times a year to enable the judge to review and supervise the progress of the litigation towards disposal. There were also ad hoc hearings to determine specific issues.
Some of the claims had stalled and in light of this the claimants asked the court to award interest on their claims.
The supervising judge held that he had no jurisdiction to make an order for payment of interest. His powers were limited to the construction and enforcement of the CHA. In essence as the procedure was not group litigation or indeed litigation but the carrying into effect of an agreement the judge held his powers were restricted. He did hold though that the adversely affected claimants’ remedy was breach of contract.
The claimants appealed challenging the source and extent of the supervising judge’s power and the extent of the judge’s powers to deal with claims allegedly stalled and whether they included a power to direct that interest be paid from the date of a claim.
The court held that it did have the power to require a scheme, involving money payments to the claimants in the case of default, with the object of persuading the defendants to deal with claims promptly. To give efficacy to the CHA, a means of ensuring that the defendants did not delay in dealing with claims was necessary.
Because the sanction of striking out the defence was not available, and in the absence of other proposals such encouragement to proceed may include imposing financial consequences for delay. The CHA was to be read in light of the CPR and the overriding objective of CPR 1.1. In this respect, dealing with a case justly, included ensuring so far as practicable that it was dealt with expeditiously and fairly.
Notwithstanding the foregoing, the court held that it would be wrong for the court to make a general order for the payment of interest. Instead the parties should attempt to agree a procedure and the judge may exercise his power in default of agreement.
*Full case details: AB & ORS V DEPARTMENT OF TRADE & INDUSTRY S/A BRITISH COAL CORPORATION & ORS  EWCA Civ 1357 (Pill LJ, Rix LJ, Arden LJ, 19/10/06)
Contact Fenwick Elliott on 020 7421 1986 or NGould@fenwickelliott.co.uk
This is an interesting case where the court essentially held that a supervising judge has the power to make a financial award where there were delays in dealing with claims, even though those claims were not being litigated in court but instead being resolved through a claims handling process between the parties.