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Truth beneath the Cape

Posted on 11th December 2017

On 5 December 2017 the High Court ruled in Dring v Cape Distribution and others [2017] EWHC 2103 (QB) that historic documents held by the asbestos company Cape and disclosed during the course of commercial litigation must be preserved and shared with parties not involved in that original action.

Master McCloud ordered that the parties make the material publically available:

  • to promote academic consideration as to the science and history of asbestos and asbestolux exposure and production,
  • to improve the understanding of the genesis and legitimacy of TDN13 and any industry lobbying leading to it in the 1960s and 1970s.
  • to understand the industrial history of Cape and its development of knowledge of asbestos safety
  • to clarify the extent to which Cape is or is not responsible for product safety issues arising from the handling of asbestolux boards
  • to assist court claims and the provision of advice to asbestos disease sufferers.

This order is significant as usually documents disclosed within court proceedings cannot be used outside of that case. In the event that documents are used in open court then they can be available but in this case the settlement between the parties included a term that required that all documents be destroyed.

Disclosure of Cape plc documents

The decision is significant because none of these documents had been disclosed to claimant asbestos lawyers in the past nor the existence of such relevant documents even acknowledged, as they should have been. Cape and their insurers were aware of the relevance of these papers as they undermine defence arguments about the early knowledge of the dangers of asbestos.

Turner & Newall litigation

Many years ago I was involved in litigation which gained access to another asbestos giant, Turner & Newall’s, depository containing millions of pages of documents in a warehouse in Manchester. In numerous court cases spread over decades T&N had denied the existence of any such documentation. We described their conduct at the time as a systematic fraud upon the English legal system.

Access to those historic documents gave an insight into the nature of the methods used by an industry to try and hide the truth to continue the sale of their products. They included details of the pressure they put on government departments and tame MPs to water down any attempt to legislate against the use of asbestos. Their papers showed how not only did their own scientific studies make clear the true danger of the use of the substance but also how they supressed and changed reports to enable them to argue that there was a dispute in the scientific community as to the safety of asbestos.

The use of “scientific” data to mislead the public, courts or governments about the safety of their product is a tactic still used today by the Russian chrysotile asbestos industry.

I am hopeful that a full reading of the Cape documents, so far available, and access to others, no doubt held by Cape, will shed more light on the lengths this industry will go to in order to sell their murderous product.

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