BL-2025-001269 and BL-2024-001337 - [2025] EWHC 2706 (Ch)

The agreement is described as being between “Peter D. Protopapas, in his capacity as the court-appointed South Carolina Receiver for Cape Intermediate Holdings Limited (f/k/a Cape Asbestos Company Limited, hereinafter referred to as “Cape”) (“Third-Party Plaintiff”), for the Receiver itself, its agents, executors, administrators, heirs, successors, assigns, and all who claim derivatively through the Receiver (hereinafter referred to as the “Releasing Party”),” and De Beers and other companies in group.”

It provides for a sum of money to be paid into a “Qualifying Settlement Fund” whose terms have been, or are to be, approved by the court. This is apparently an established technique in group-type actions in the US. The terms of the fund (“the QSF”) have not been disclosed. However, it appears that part of the fund will be used to pay Mr Protopapas, for expenses and otherwise, and part will be used to pay claimants. It is also said, and I accept, that it is likely that part of the fund is likely to be deployed in further claims, including pursuing claims against CIHL and its associated companies. This is a particular concern of CIHL, and as a pure matter of fact that view is in my view justified.

Clause 4 contains “Releases and Discharges”. Under it the Releasing Party releases:

all claims, demands, and causes of action asserted by Third-Party Plaintiff against the Released Parties in the Lawsuit, recognizing the Receiver’s authority is limited to claims asserted in South Carolina; and

all claims, actions, suits, losses, rights, damages, costs, fees, expenses, obligations, liabilities, and causes of action of every character, nature (whether sounding in tort, contract, warranty, or any other theory of law, equity, or workers compensation claims), kind or description whatsoever, known or unknown, past, present, or future, foreseen or unforeseen, and suspected or unsuspected, that the Releasing Party has or may have against the Released Parties, arising out of, or relating to injuries arising from alleged exposure to Cape Asbestos Products or any other asbestos products, including, but not limited to, claims arising by reason of, directly or indirectly, bodily or other personal injury, property damages, wrongful death, survival action, and economic loss. In the interest of clarity, the releases and discharges contained in Section 4(a) are limited to claims brought in South Carolina.”

Although the Releasing Party is descibed as the receiver, it is quite clear that he is purporting to act for, and to bind, CIHL.