The High Court, in a judgment of 24 April 2026, refused to dismiss a 71-year-old man's mesothelioma damages claim against a dissolved company and its insurer, despite a late change in his case on which school he worked at.
Key facts
- Who: William Walter Howell, a claimant diagnosed with epithelioid malignant mesothelioma, and the defendants, Pile Construction (Southern) Limited (formerly CWL Pile Ltd) and Zurich Insurance Company Limited.
- From: Judgment of 24 April 2026
- Source: William Walter Howell v Pile Construction (Southern) Limited & Anor, [2026] EWHC 949 (KB)
Background
In [2026] EWHC 949 (KB), handed down on 24 April 2026, David O'Mahony, sitting as a Deputy Judge of the High Court in the King's Bench Division, dealt with a claim for damages after a diagnosis of epithelioid malignant mesothelioma.
The claimant is 71. He was diagnosed on 20 February 2024, aged 69. He has worked as a computer programmer or software developer. Before that he had several part-time jobs, four of them labouring. One was with the first defendant, which HMRC records place in the 1972 tax year. He says it was his first summer job on leaving school. The first defendant was dissolved on 5 August 1986.
The second defendant, Zurich Insurance Company Limited, accepts that it is the relevant insurer for the purposes of section 1(2) of the Third Parties (Rights Against Insurers) Act 2010. It accepts that the first defendant does not need to be restored to the register of companies.
The question
The issue was whether the claimant had established that he was exposed to asbestos while employed by the first defendant, in the circumstances pleaded in his Particulars of Claim. It was conceded that if he had, the first defendant was in breach of duty and he was entitled to recover damages for his injury from the second defendant. The parties had agreed the amount of damages, subject to that factual issue.
His case was that he was exposed to asbestos dust while working in and around a school hall at a local school. The case had been investigated on the basis that the school was Great Ballard School in Eartham, West Sussex. No evidence of asbestos has been found in the Great Ballard School hall.
His evidence on the school's identity developed. He had first thought it was Slindon College, but said that the college told him it had no building works completed in the early 1970s. He later named Great Ballard after further thought, online research and inquiries, including speaking to his sister.
The preliminary point
Two days before the hearing, the claimant's skeleton argument said for the first time that Great Ballard was "less likely" to be the relevant school. His counsel said it was not necessary to identify the precise location for the claimant to succeed, provided the rest of his factual case was established. At the hearing, counsel said the court could not be satisfied on the balance of probabilities that it was Great Ballard.
The defendants argued that the case had to be decided on the basis on which it had been investigated, and that it would be unfair to them because they had not had the chance to make alternative investigations. They said the claim must fail. They relied on Al-Medenni v Mars UK Limited [2005] EWCA Civ 1041, where the Court of Appeal said that parties should clearly identify the issues so that each can respond.
The judge was not satisfied that the case fell within the principles in Al-Medenni and refused the defendants' invitation to dismiss the claim on that basis. He said the way the claimant's case evolved was relevant to whether the claimant had proved it, and that he would explain how he had taken it into account in the discussion and conclusions section of the judgment.
What this means for claimants and defendants in asbestos cases
On this preliminary point, the court declined to end the claim because the claimant's case on the school had changed shortly before the hearing. The judge treated the change as relevant to whether the claimant had proved his case, rather than as a reason to dismiss it at the outset.
The evidence before the court on the factual issue included HMRC records and witness statements from the claimant and his sister.
Sources
- William Walter Howell v Pile Construction (Southern) Limited & Anor, [2026] EWHC 949 (KB), High Court (King's Bench Division), 24 April 2026: https://caselaw.nationalarchives.gov.uk/ewhc/kb/2026/949