Case No: QB/2015/0296
Neutral Citation Number: [2015] EWHC 3387 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24/11/2015

Before :

MR JUSTICE FOSKETT
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Between:

	Bernard Atkinson
	Claimant	
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	Geoffrey Robinson Limited
	Defendant	

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Christopher Makey (instructed by Irwin Mitchell LLP) for the Claimant/Respondent
William Evans (instructed by Weightmans LLP) for the Defendant/Appellant

Hearing date: 18 November 2015
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Judgment
Mr Justice Foskett: 
1.	This is an appeal from an order of Master Gidden given on 3 June 2015.  The appeal is brought by permission of Green J given on 30 September 2015.
2.	It arises from a decision made by Master Gidden under the ‘Show Cause’ procedure relating to mesothelioma claims provided for in part 6 of Practice Direction 3D.  The note at 3DPD.6.1 states this of the ‘Show Cause’ procedure:
“This is defined as a requirement by the court, of its own initiative and usually on a costs in the case basis, for the defendant to identify the evidence and legal arguments that give the defendant a real prospect of success. Applying the test for summary judgment, the burden of showing that the defendant has no real prospect of success remains on the claimant. Further, at a show cause hearing it is for the claimant to adduce credible evidence in support of their case, and it is only if they do so that the defendant becomes subject to an evidential burden to show cause: Silcock v H M Revenue and Customs [2009] EWHC 3025 (QB). The justification for the court imposing this filter rather that requiring a full blown application under Pt 24 to be initiated by the claimant, is the fact that the RCJ experience has shown that in about 95 per cent of claims there is no such defence and a summary judgment application simply duplicates work and increases costs unnecessarily. The requirement to show cause may be imposed at any stage of the interlocutory process and may be imposed on successive occasions, for example, at the first CMC and then at a later show cause hearing if the defendant is able to persuade the court to allow more time. The courts order is to show cause not only as to liability but also as to why the usual standard interim payment should not be made.” 
3.	In the Silcock case Sweeney J recorded at [9] what was common ground between the parties:
“… at a show cause hearing it is for the Claimant to adduce credible evidence in support of his case, and it is only if he does so that the Defendant becomes subject to an evidential burden to show cause. It is further agreed that the correct test is not whether the Defendant’s case is likely to succeed at trial, but only whether it has some chance of success, and that the prospects are not fanciful.”
4.	The overall “case” that a claimant has to establish in this context in order to secure compensation against an employer is that he was exposed to asbestos during the course of his employment in breach of duty.  Any such employer is liable for the whole of the damage caused irrespective of whether wrongfully exposed to asbestos by others: see section 3, Compensation Act 2006.
5.	The hearing before the Master was, as is usual, conducted by telephone (with 1 hour allowed) with Mr William Evans making submissions on behalf of the Defendant and Mr Christopher Makey making submissions on behalf of the Claimant.  Mr Makey had put in an up-dated Skeleton Argument shortly before the hearing and the Defendant had submitted written representations prior thereto.  Mr Evans and Mr Makey have both appeared before me and I am grateful for their helpful submissions.
6.	I am told that the Master had not had an opportunity to read the evidence before the hearing, but it is quite plain that he did read it from the decision he gave (see paragraph 17 below) and that he reflected upon its implications. He concluded on the evidence deployed before him that the Defendant, a company of mechanical building engineers, did not have a realistic prospect of success in its defence and that, accordingly, he should enter judgment on the issues of liability and causation in favour of the Claimant and ordered the Defendant to make the usual payment on account of damages and costs, namely, £50,000 and £5000 respectively.
7.	The Defendant contends that the Master should not have so concluded.  It is argued that the evidence presented by the Defendant, if accepted, amounts to a full defence to the Claimant’s claim and that it was wrong of the Master to enter judgment on the basis that the Claimant’s evidence proves his case at this stage.  It would only be possible to reach such a conclusion, it is said, by considering the competing evidence and rejecting the Defendant’s evidence.  Mr Evans submits that a trial should take place at which the witnesses for both parties should be heard and tested.  Mr Makey says that the Master was entitled to reach the conclusion he did on the material before him.
8.	The appeal is a review, not a re-hearing, although inevitably a substantial part of such a review involves an appraisal of the evidence considered by the Master.  In Austin v Plumb Furniture Systems Ltd, HHJ Mackenna, sitting as a High Court Judge, on an appeal heard in July 2013 from the then Senior Master, Master Whittaker, against a ‘Show Cause’ decision in a mesothelioma case, said this of the parameters at the appellate stage:
“6.	There is no issue between the parties as to the applicable legal principles in this case. An appeal will be allowed where the decision of the lower court was wrong and wrong for these purposes means either because the learned senior master erred in law or erred in the exercise of his discretion. I have been referred to the well known decision in Tanfern v Cameron-McDonald as to what constitutes a sufficient error in the exercise of discretion to warrant an interference by the  Appeal Court, where Brooke LJ suggested that guidance might be gained from the speech of Lord Fraser in G v G where Lord Fraser said: "...the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible."
7.		In addition, I have also been referred to the alternative formulation of Lord Woolf in Phonographic Performance Ltd v AEl Redifussion Music Ltd [1999] I WLR 1507 at 1523:
"Before the court can interfere it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that his decision is wholly wrong because the Court is forced to the conclusion that he has not balanced the various factors fairly in the scale."”
9.	It is, perhaps, more accurate to say that the decision which is the subject of an appeal in this context is an appeal from an exercise of judgment (rather than discretion) on the part of the Master, but the principles at the appellate stage are unchanged.  It is not open to the judge at the appellate stage to set aside the Master’s decision simply because he or she might have reached a different judgment on the available material.  The decision under appeal must be shown to have been wrong in the sense that it has gone beyond the generous limits of reasonable disagreement.
10.	The Claimant was born on 28 August 1930 and is thus 85 years of age.  He was diagnosed as suffering from epithelioid malignant mesothelioma in July 2014.  His life expectancy was assessed by Dr H.W. Clague, the Consultant Physician instructed by his solicitors, in September 2014 to be between 9 and 15 months.  Happily, he still survives at the moment, but undoubtedly is seriously ill.
11.	Shortly after the diagnosis to which I have referred the Claimant gave his solicitors a lengthy witness statement concerning his work history since 1944 when he was 14, a statement he appears to have repeated in substance with some additions in another statement dated 5 February 2015.  He was essentially a plumber and heating engineer throughout his working life, starting as an apprentice plumber in 1944 and retiring as a heating engineer in 1995 having spent the last 14 years of his working life with the Defendant.
12.	The statements to which I have referred indicate that he had been exposed to asbestos dust to varying degrees of intensity throughout his working life with different employers.  I will mention salient aspects below (see paragraph 20).
13.	After receiving a synopsis of the witness evidence to be deployed at the ‘Show Cause’ hearing by the Defendant, he prepared a further statement dated 18 May 2015 commenting on the synopsis, though not directly on the witness statements themselves which he had not then seen.
14.	His account of the history is supported in relevant respects by witness statements from two others who had worked for the Defendant at the same time as him, Mr David Reeve and Mr Andrew Prior.  Mr Reeve’s statement was dated 12 May 2015 and Mr Prior’s was dated 20 May 2015.  I will refer to those statements below.
15.	In relation to the evidence advanced by the Defendant, Mr Geoffrey Robinson, its proprietor, prepared a witness statement dated 7 May 2015 which challenged a good deal of what the Claimant had said in his earlier statements.  At that stage there were other statements prepared on behalf of the Defendant: one from Mr Walter Dinsdale dated 17 April 2015, another of the same date from Mr Tony Heywood and again two others of that date from Mr Brian Stephenson and Mr Mick Cross.  I will refer to those statements below.
16.	That was the evidential material available to Master Gidden together with the expert medical report of Dr Clague dated 27 September 2014.  He had, of course, the advantage of the competing submissions of Mr Makey and Mr Evans.
17.	The Master’s decision was briefly expressed as follows:
“1.	This is the case of a man who worked as a heating engineer employed by the Defendant in the period 1981-1995.  It is a case where liability is not admitted and I have been referred to a significant body of evidence that has been prepared and served in this case; two statements from the Claimant supported by further evidence on behalf of the Claimant from Mr Reeve and Mr Prior; and then a further five witnesses whose statements are served on behalf of the Defendant.  I have been referred to various passages in a number – not all – of these statements.  The Claimant describes his work with the Defendant.  He describes being exposed to asbestos dust in work which involved repairs to boilers, replacing them, replacing pipework, and removing asbestos lagging, and indeed in installing new pipework and new boilers.  He describes removing old asbestos lagging from boilers and a practice of simply smashing the lagging off and then indeed re-lagging boilers using a paste that was mixed up by tipping asbestos dust and fibres from a bag and into a bucket, obviously causing a good deal of dust.  He describes being exposed to asbestos dust during his employment and indeed no precautions to that exposure being taken.  That is supported by evidence from Mr Atkinson (sic).  He also describes smashing off asbestos lagging in work at Catterick and indeed there is evidence from Mr Reeve, who describes working with the Claimant stripping out boiler houses and the job involved tidying up old asbestos lagging.  These descriptions are vivid and graphic and in my estimation not inconsistent, and not unfamiliar in cases like this in this court.  These statements on behalf of and from the Claimant describe substantial and prolonged exposure to asbestos on any basis.
2.		The medical evidence is also present in the bundle before me and provides the diagnosis that the Claimant is suffering from malignant mesothelioma, a diagnosis that it appears to me is uncontroversial, which has been confirmed as described in the report, a diagnosis which it seems to me there is little prospect of it being challenged and as far as I understand that is not envisaged as matters stand.
3.		On balance I am not persuaded that the Defendant has a realistic prospect of success in this case.  I am satisfied that the Claimant has adduced sufficient credible evidence of significant exposure and breach of duty on the part of the Defendant.  The Claimant in addressing the Defendant’s evidence points out that there are instances in which the witnesses in question are unable to state that they knew the Claimant particularly well or that they had worked on particular contracts with the Claimant.  They do state however – and this in fact is the evidence I believe from the [witness Mick Cross] who accepts that employees could be exposed to asbestos accidentally.  Another, Mr Haywood, accepts that in the period 1981-1995 it is possible that he might have come across asbestos.  On balance it seems to me that the Claimant is in a position to prove material exposure whilst employed with this Defendant and indeed a level of exposure of which the Defendant should have taken steps to protect the Claimant having regard to the standards and practices at the time ….”
18.	It was, of course, an ex tempore ruling given at the conclusion of a telephone hearing.  As will appear below (see paragraph 35), Mr Evans subjected some aspects of it to a close textual and contextual analysis in his criticisms of its conclusions.  I do not, with respect, think it fair or appropriate to do so.  There has been no opportunity to refine it and the Master was simply doing his best in not ideal circumstances to give the gist of his reasoning that led to his decision.  He was doing so, however, to an audience that was very experienced in this field, as doubtless was the Master himself.  There are many cases of this nature passing before certain QB Masters (including Master Gidden) on a very regular basis.
19.	I will turn to the evidence and to Mr Evans’ submissions about it.
20.	As I have indicated, the Claimant’s first witness statement sets out his working history which, on his account, had resulted in fairly consistent exposure to asbestos over the years.  Prior to his period with the Defendant, he had worked for about 22 years with one company in Darlington during the course of which he says he was significantly exposed to asbestos dust and fibres, much of the work involving contact with asbestos lagging when working at various sites of clients of the company.  It involved both the removal of old lagging by smashing it off with chisels or hammers and its replacement by the preparation of an asbestos paste made by tipping asbestos dust and fibres from a bag into a bucket and mixing it with water.  He worked for another firm for about seven years between 1968 and 1975 when there was similar asbestos exposure.  In the five years before he joined the Defendant he worked for an electrical and mechanical engineering firm on behalf of which he would carry out plumbing work which again involved exposure to asbestos, mostly as a result of similar work on lagging to that which he had been involved previously.
21.	During his time with the Defendant the Claimant says that “on nearly every job [for the Defendant] I was exposed to asbestos dust”.  He said that the work involved carrying out work to boilers with a considerable amount of removal of asbestos lagging and then its replacement following the production of the type of paste to which I have already referred.  When the paste was prepared it was sometimes prepared by him and his colleagues and sometimes by contractors.  When done by the latter, he was again exposed to asbestos dust when it was tipped out of the bag before being converted into a paste.  He also described work that he performed on calorifiers at various defined places.  He mentions specific locations where work that brought him into contact with asbestos took place, a number of which (e.g. Albemarle Barracks, RAF Catterick and Latermarne Barracks) were government-run military institutions. 
22.	He indicated that there did come a time during his employment by the Defendant when there was what he described as a “national acknowledgement with regards to asbestos and the dangers of it” and that by the end of his employment the Defendants were using an asbestos alternative to lag the pipes.  In his statement of 5 April 2015 he said this:
“I am told that Geoffrey Robinson have denied that I was exposed to asbestos dust during the course of my employment with them.  Whilst I understand they accept that the work that I did for them would have brought me into contact with insulation, they dispute that it would have contained asbestos and maintain that the insulation that I encountered during my employment with them would have been predominately calcium silicate and Rockwool based.  This is incorrect.  I was exposed to asbestos dust during my employment with them, as I have indicated above.  It was only after I had been employed by the firm for a number of years that we became more aware of the dangers of working with asbestos and alternatives to asbestos based insulation were introduced.  In the years during my employment with Geoffrey Robinson, before we became aware of the risks associated with asbestos dust I frequently worked on jobs which involved the stripping and removal of lagging that had been in place for many years and would certainly have contained asbestos.  No precaution was taken.”
23.	Mr Reeve’s statement indicates that he worked with the Defendant as a pipe fitter/welder from about 1981 to 1992 and that he worked closely on many jobs with the Claimant.  Putting it shortly, he largely corroborated the Claimant’s account of the kind of work undertaken (including the work involving the lagging) and the sites that the Claimant had identified.  He recalled the boiler suit that was issued by the company which was, he said, always covered in dust and fibres by the end of the day.  He said that during the early years at the company they were not aware of the dangers of asbestos, but that there came a time when there was greater awareness and the sub-contractors who re-lagged the pipes at that stage used glass fibre rather than asbestos dust and fibres to make the paste.  
24.	Mr Prior, who is considerably younger than the Claimant, worked for the Defendant from about 1985 to 1988 and he and the Claimant worked regularly together during that period.  He also identified places where they worked together including those mentioned by the Claimant.  He describes breaking up old asbestos lagging as had the Claimant.  He also described being in the vicinity of specialist contractors who used asbestos fibres to re-lag the pipe work.  
25.	Mr Evans concedes that if one stopped at that point and that evidence was accepted, the Claimant would have established his case against the Defendant.  However, he says that the evidence submitted by the Defendant puts a different perspective on that evidence and is sufficient to require further investigation at trial.  I will turn to that evidence.
26.	Mr Robinson’s witness statement describes how he started the business in 1971 and states that its clients during the time the Claimant worked for it were the Government’s then Property Services Agency, local authorities, British Gas, ICI and British Steel.  He says that the company’s clients were aware of the risks posed by asbestos and “even in the 1970s” carried out asbestos surveys and, accordingly, were often aware of its presence before his employees arrived at a job and had often removed it.  However, he says that in November 1981 he set up another business called Industrial and Commercial Insulation Limited which carried on business until January 1993 removing asbestos insulation.  In the period before the formation of that “asbestos removal company” he said that the instructions to employees (“as confirmed in our health and safety manual”) were that if they came across anything they suspected was asbestos they should not disturb it and report it to “the relevant person”.  If the suspicious items were found to be asbestos, either the client would have it removed or he (Mr Robinson) would subcontract removal to a specialist contractor, which might be his own company after it was set up.  He said the Claimant was wrong to say he mixed wet asbestos paste since the Defendant never used any form of wet material.  He also made observations about certain specific places identified by the Claimant as places where he was exposed to asbestos.
27.	I will endeavour to summarise what the other witness statements advanced on behalf of the Defendant say.  Mr Dinsdale has worked for (and, it seems, continues to work for) the Defendants since 1989 as a pipe fitter and heating engineer.  During the first six years of his employment he says that his work involve insulation of heating pipes and taking out redundant pipe work – in other words, work similar to that carried out by the Claimant.  He said that he was occasionally on site with the Claimant, but did not know him that well.  He says that during that period “I do not think I came across asbestos at all.”  He says that the company would not allow anyone to go to premises where asbestos removal was taking place.  He said that he had never seen asbestos paste being used.  On the issue of the procedure adopted if asbestos was suspected, he said this:
“If we were working in a plant room and we had reason to suspect that the lagging that we saw contained asbestos, our instructors were to notify Geoffrey Robinson Limited and they would investigate.  That was the procedure that was laid down and it was the procedure which was followed.  I knew that I had to report it.”
28.	Mr Heywood, who has worked for the Defendants since the mid-1970s, initially as a heating engineer, but more recently as contracts manager, said that he thought that he “did a little work” with the Claimant.  Looking back to the period when the Claimant worked for the Defendant, Mr Heywood said that he “personally [could not] recall coming across asbestos, but it is possible that [he] did”.  He said that the rules were that if it was discovered, it should be reported.  He did accept that it was “possible” that asbestos insulation was used in addition to calcium silicate and fibre glass, but said that the company never got involved in lagging.
29.	Mr Stephenson, who joined the Defendant in 1990 as a heating engineer, gave a short statement that, when read, appears to be in somewhat guarded terms.  However, he said that he had never seen asbestos paste being prepared during the time he worked there and said that if asbestos was suspected, it would have to be reported.  He said that he could recall asbestos gaskets, but not asbestos insulation.  He does not suggest that he knew or ever worked with the Claimant.  
30.	Mr Cross is a heating engineer who has worked for the Defendant for forty years.  He says that he knew the Claimant, but not well.  He said that if he found asbestos, he would never remove it, but always report it.  He says that the “guidance” from the company was not to disturb asbestos and that if asbestos was suspected, it had to be reported.  He says that “we did not do the lagging ourselves”.  He did, however, say that “if [we] discovered lagging and it was a small quantity, we would take it off but if it was a large quantity, then a lagging firm would be instructed to remove it.”  He said that he had never mixed paste or seen paste being used in any of the work carried out by the Defendant.  He did accept that “you could be exposed to asbestos accidentally”.  He said that he could recall “something of that nature even within the last couple of years”, but added that this was “exceptional”.
31.	The Claimant prepared a further witness statement, as I have indicated above (paragraph 13), which sought to reinforce the position taken in his first witness statement.
32.	The essential thrust of Mr Evans’ argument is that the Claimant’s fundamental case is that he was exposed to asbestos as a matter of course throughout his employment and as part of his ordinary routine work tasks he removed old asbestos insulation before carrying out work on boilers, pipe work or associated heating equipment.  Mr Evans said that the Claimant claims that he personally mixed asbestos powder material to a paste to apply as new lagging.  All this, he contends, is contradicted by the Defendant’s evidence and, as he put it in his Skeleton Argument, if accepted this evidence “casts serious doubt on the entire edifice of the Claimant’s case.”  At all events, it is, he says, sufficient to warrant investigation at a trial.
33.	Mr Makey’s response, which essentially mirrors the submissions he put to the Master in the Skeleton Argument he put forward at that stage, was in essence that on closer examination the Defendant’s evidence is not as compelling as suggested in undermining the Claimant’s case and that the Master was entitled to reach the conclusion he did.  For example, he says that the health and safety manual mentioned by Mr Robinson has not been put in evidence and, accordingly, its date and contents are unknown.  In relation to Mr Dinsdale, Mr Makey draws attention to the fact that he does not give any example of any job on which he and the Claimant worked together and also that, since he did not join the company until 1989, he could not speak about what happened in the earlier years of the Claimant’s employment.  In relation to Mr Heywood, Mr Makey notes that he accepts that during the period 1981-1995 it is “possible” that he might have come across asbestos, something that finds echoes in the statement of Mr Cross.  He submits that Mr Stephenson’s statement does not take matters very far on behalf of the Defendant.  He contrasts this evidence with the corroborative evidence of Mr Reeves and Mr Prior who, unlike these witnesses, did work regularly with the Claimant.
34.	The essential question at this stage is whether the decision of the Master that the Defendant had no real prospect of success in defending the claim was a judgment that fell within or outwith the spectrum of decisions where reasonable disagreement is possible.  If it fell within it, even if I or another judge or Master might have reached a different conclusion, there is no scope for interference at this level.  If it falls outside it, I must set aside the decision. 
35.	I have already indicated that, in my view, it is wrong to evaluate the Master’s ruling by reference to a close textual analysis of the words used.  This was an ex tempore ruling given by what, in essence, is a specialist tribunal (with a natural “feel” for the kind of issues involved) to parties represented by specialist advisers.  Of course, it is necessary to see that the essential parameters have been observed, but to expect a ruling from any tribunal, no matter how experienced, that dots every ‘i’ and crosses every ‘t’ is a step too far.  It is quite plain that the Master considered carefully the Claimant’s evidence and evaluated how, if it did, it withstood the evidence of the Defendant.  Although Mr Evans sought to suggest that the first two sentences of paragraph 3 of the ruling (see paragraph 17 above) showed that the Master focused only the Claimant’s evidence, I do not think that that contention is justified.  The next few sentences show that he addressed the Defendant’s evidence, but considered that the submissions made about it by Mr Makey were justified and on that basis did not consider that the evidence, even taken as it stood, undermined the Claimant’s case sufficiently to warrant further investigation at a trial.
36.	On the question of exposure to asbestosis itself, the Master’s conclusion, in my view, was entirely justified.  Whilst I accept Mr Evans’ point that the Claimant’s case is apparently advanced on the basis that there was continuing exposure to asbestos throughout his employment, that case does not have to succeed in precisely that form to bring home his claim.  If the court were satisfied that at some stage during the whole period of his employment by the Defendant the Claimant had been significantly exposed to asbestos fibres, then sufficient factual exposure will have been established.  Quite often the truth on a matter of fact lies some where between the extremes of both parties – here between the Claimant’s “daily exposure” case and the Defendant’s “no or minimal exposure” case.  I can see nothing wrong with the Master’s decision that the Claimant’s evidence supported a conclusion of “significant exposure” (see paragraph 3 of his ruling).  Had I been expressing my own conclusion on the evidence, I might have added that the exposure was sufficiently regular to amount to “significant exposure” albeit not such that without further examination of the evidence it could be said to have been on a more or less daily basis.  Indeed the Master himself simply referred to “prolonged” exposure.  However, that conclusion is sufficient for ‘Show Cause’ purposes.
37.	The next question is whether the Defendant had raised sufficient evidence to suggest that any such exposure was not in breach of duty.  Where there has been significant exposure over a significant period, it would require some fairly strong prima facie evidence to defeat the proposition that at least some of that exposure was wrongful.  What is largely sought to be relied upon here is the “standing instruction” to all employees that they should not become involved with asbestos.  
38.	In the first place, if there was significant continuing exposure to asbestos over a lengthy period towards the Claimant and his witnesses, it suggests that any such standing instruction was ineffective and that the message had not been brought home to all employees.  The evidence of the Defendant’s witnesses, whilst referring to the “guidance” given by the Defendant, is very unspecific about when and in what circumstances the cautionary message was conveyed and, as Mr Makey observed, the Health and Safety Manual has not been exhibited to Mr Robinson’s statement or deployed elsewhere in the evidence.
39.	It seems to me that this analysis would be sufficient to conclude that it would be fanciful to think that the Defendant could establish that the exposure was other than in breach of duty.  The Master did not express himself in detail about this and did not mention specifically the “standing instruction”, but (a) the mere fact that he did not mention it does not mean that he did not consider it and (b) he did say that the level of exposure was such that the Defendant should have taken steps to protect the Claimant and thus clearly concluded that the evidence did not suggest that they did.  
40.	As it seems to me, the Master was entitled to reach this conclusion on the evidence presented to him and also in the light of his experience in dealing with cases of this nature.  It is, of course, possible that another Master would have permitted the case to go to trial, but that is not the test.  The test is as I have set out in paragraph 34 above.
41.	Nothing I have said should be taken as militating against the need to examine each case on its merits at a ‘Show Cause’ hearing.  Merely because 95% of cases are shown to be without an arguable defence does not, even arithmetically, mean that the Claimant will succeed at every such hearing.  However, there is no warrant for thinking that the Master approached this case other than on the basis of a conscientious consideration of the evidence and, in my view, he reached a sustainable view having regard to the evidence and argument.  In those circumstances, this appeal must be dismissed.