Dalton v Gough Cooper & Company Ltd

These are proceedings in which the Claimant, Mrs Dalton, suing as executrix of the estate of her late husband, alleges negligence and/or breach of statutory duty on the part of the Defendant, Gough Cooper & Company Limited (“Gough Cooper”), arising out of Mr Dalton’s (alleged) employment by Gough Cooper in “approximately 1951-1952” and his exposure to asbestos dust and fibres during the course of such employment, specifically during the refurbishment and reconstruction of a chimney in an industrial building, specifically in a boiler house, at Buckland Hill in Maidstone.

Gough Cooper appeals against the decision of Master McCloud on 10 January 2014 (order sealed on 13 February 2014) dismissing Gough Cooper’s application to set aside a judgment obtained on 3 December 2013 (order sealed on 5 December 2013) in default of service of a Defence by Gough Cooper – or, more accurately, since a Defence was actually served on 25 November 2013 (albeit after 5pm), in default of timely service of a Defence.

Permission to appeal was initially refused on paper by Patterson J. However, permission was subsequently granted by Burnett J after an oral hearing on 25 March 2014.

Procedural history

Before coming on to consider the parties’ respective submissions, it is convenient, first, to set out the procedural history of these proceedings.

The first point to note is that Gough Cooper was not originally named as the Defendant. Gough Cooper, in fact, only became a party to the proceedings, by amendment to the Claim Form on 15 October 2013, pursuant to an order made on 3 October 2013 (order sealed on 8 October 2013) by Master Whitaker. Before this, the Defendant was not Gough Cooper but a different company, Clarke & Epps Limited (“Clarke & Epps”).

The reason for the change, which was made with the consent of Clarke & Epps and its solicitors, Plexus Law (unsurprisingly given that a Notice of Discontinuance was filed by the Claimant on 16 October 2013), is that at a Case Management Conference on 17 June 2013, a so-called ‘show cause’ hearing, Clarke & Epps satisfied Master Whitaker that Mr Dalton could not, on the balance of probabilities, have been exposed by Clarke & Epps to asbestos because the kind of work described by the Claimant in the Particulars of Claim was not carried out during the time when Mr Dalton was employed by Clarke & Epps.

Gough Cooper only learned that it had been substituted as the Defendant in these proceedings after the event when the Amended Claim Fo