Third-Party Disclosure in Asbestos case

This Judgment concerned an appeal from the Claimant’s unsuccessful Third Party disclosure Application: Sparkes (as personal representative of Pauline Sparkes, deceased) v London Pension Funds Authority and Leigh Academies Trust [2021] EWHC 1265 (QB), per Murray J. Neither Defendants nor the third party appeared at the Appeal hearing.

The Background Facts

The Claimant is the widower of a teacher who had died following contracting mesothelioma.

It is the Claimant’s case that the Deceased was exposed to asbestos at a school in London where she worked. It is said that asbestos was present in the fabric of the building. Specifically this included the floor/ ceiling tiles, wall panels and lagging. She was also exposed to asbestos fibres during a period of construction.

Liability for the period of employment, which was between 1970 – 1975, rests with the Defendants, the London Pension Funds Authority.

However, the premises continues to operate as a school, though now as an academy operated by the Third-Party Trust.

The Disclosure

The Claimant’s solicitor had a conversation with the Premises Manager at the school. The Premises Manager stated that there remained at the school ‘boxes of old documents’ relating to building and maintenance work.

The Claimant’s solicitor contacted the Trust requesting copies of the documents or the opportunity for inspection.

The Trust did disclosure papers relating to seemingly to the period of employment (1970 – 1975), which amounted to about 46 pages.

Initially, the Claimant’s solicitor appeared content with this disclosure. However, having consulted counsel, it became clear that documentation from both before and after the period of employment may provided information as to whether asbestos was present as alleged.

Therefore, the Claiman’s solicitor approached the Trust again (and it should be said on a number of occasions) to request the complete disclosure of all the documents relating to maintenance. The Claimant’s solicitor never received a response. The Claimant made an Application for Third-Party Disclosure.

The Decision at First Instance 

At first instance, the Master dismissed the Application. Firstly, it was said that the Application was very wide. The Master stated that it would necessitate a considerable amount of research and consideration, potentially spanning decades.

Further, the Master considered that the Trust had undertaken a comprehensive disclosure exercise with the result that the 46 pages were disclosed.

The Master considered the Application to be too broad in its scope and considered it ‘hopelessly vague and lacking in specificity’. Although the Master was sympathetic (and therefore aware) how certain documentation might be relevant, he stated he was unable to shape or form an Order that would be intelligible.

Accordingly, the Application at first instance was dismissed. 

The Appeal Court considered the legal framework.

It was noted that this was a case management decision and, therefore, afforded a reasonable range of discretion to the Master.

CPR 31.17 was considered and set out, as was case law specifically in relation to a Third-Party Disclosure. It was noted that this is a potentially intrusive exercise where the court must ensure that it is not used inappropriately; that the Court retained the discussion; and that the discretion for non-party disclosure should be the exception rather than the rule.

The decision

Four Grounds of Appeal were made. Ultimately all four were successful.

The Appeal Judge accepted that the Trust had complied with the initial disclosure request. However, when this had been widened to include documents before/ after employment, the Trust failed to engage. The further request was considered to be a reasonable one.

The Appeal Judge did not consider that the request was particularly onerous or large. It was known that the documents in question were believed to have been contained in a number of boxes still retained at the school.

The Appeal Judge accepted that the ‘may well‘ test in relation to their relevance, was made out.

The Appeal Judge considered that the documents may be decisive of the claim, one way or the other. Therefore, the disclosure was necessary in order to fairly dispose of the claim and to save costs.

The Appeal Judge came to the conclusion that the Master had misunderstood the scope of the Disclosure Application and therefore made a wrong decision.

The Appeal was allowed with costs.


This is another case where the question of how courts deal with historical cases/ evidence is considered.

In this case, there was no witness evidence directly from the Deceased, although there were other witnesses available. Nonetheless, it appears clear that the documentation in relation to maintenance at the school would pass the ‘may well‘ be relevant test. This includes the period both before and after employment.

It has been repeated said in such cases that historical witness evidence needs to be carefully scrutinised against any documentation available. This case seems to reinforce the point yet again, as well as the need to review any relevant documentation.

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