In a crowded court room of the High Court on Friday 2 May, the pre-trial review for six lead test cases in the employers’ liability trigger litigation was heard by Mr Justice Burton. The trial date has been set for 3 June 2008 and the trial is scheduled to end by the beginning of August.

Mr Justice Burton will consider how employers’ liability policies should respond to mesothelioma claims. Historically, the EL policies that  have responded (are “triggered”) are those on risk during the period of asbestos exposure irrespective of whether the policy wording refers to ‘injury caused’ or ‘injury occurring’. The Court of Appeal in Bolton Metropolitan Council v Municipal Mutual and Commercial Union [2006] EWCA Civ 50 considered two public liability policies and determined that the point when injury occurred in respect of mesothelioma was not when the claimant inhaled the asbestos fibre because at that point he had suffered no injury. Bolton did not specifically rule on when injury occurred but the Court of Appeal and the High Court at first instance did lean towards the onset of malignancy being when the injury occurred. Mr Justice Burton directed in the pre-trial review that each party should briefly outline their position in relation to Bolton.

The test cases are Fern v Thorpe Campbell Holdings Limited and BAI (Run off) Limited (In scheme of arrangement) (Action 1); Fleming v Norwich Union Insurance Company Limited and Independent (Action 2); Edwards v Excess Insurance Company Limited (Action 3); Thomas Bates & Son Limited v BAI (Run Off) Limited (In scheme of arrangement) (Action 4); (1) Akzo Nobel UK Ltd (2) AMEC PLC v Excess Insurance Company Limited (Action 5) and Municipal Mutual Insurance Limited v Zurich Insurance Company (Action 6). The largest claims are Action 5 and Action 6, which are deemed to be the most complex of the six actions. The order of the trial will be Action 1 through to Action 6, with a mini-opening to Actions 5 and 6 as both raise arguments which Actions 1- 4 do not.

The trial should see another packed courtroom as, with the exclusion of Bolton, this issue has yet to be considered by the English courts and unsurprisingly the market is keenly awaiting the results of these test cases.

For more information please see our Briefing Note ‘Liability policies and asbestos – Trigger Happy?’