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JAMES GOLIGHER AGAINST FLOW PART LIMITED


Submitted: 16 May 2016

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

[2016] SC EDIN 39

PN70/15

 

 

NOTE BY SHERIFF PETER J BRAID

 

in the cause

 

JAMES GOLIGHER

 

Pursuer

 

Against

 

FLOW PART LIMITED

Defenders

 

Act:   Marshall

Alt:   Ashby

 

Edinburgh,   16 May 2016

 

Introduction

[1]        This is a personal injury action currently progressing in the Sheriff Personal Injury Court at Edinburgh under the provisions of chapter 36 of the sheriff court ordinary cause rules.  It is a so-called pleural plaques case, in which the pursuer claims to have developed pleural plaques whilst in the employment of the defenders, for which he contends that the defenders are liable to make reparation.  Following the lodging of defences, a timetable was fixed in the usual way and a proof has been fixed for 9 August 2016 and ensuing days.

[2]        On 11 April 2016, I heard the defenders’ motion to sist the action for a period of eight weeks, and to suspend the timetable for that period “in order that the pursuer’s statement can be produced and considered with a view to settlement proposals being made”.  Motions to the same effect were made in seventeen other pleural plaques actions, all of which also called before me on 11 April.

[3]        All of the motions were opposed by the respective pursuers.  The firm of Thompsons, solicitors, represented fourteen of the pursuers (including the pursuer in this action) and Mr Marshall, solicitor-advocate, appeared for them.  Digby Brown, solicitors, represented three of the pursuers and Mr Di Rollo, QC appeared in those actions.  Finally, Bonnar Accident Law, solicitors, represented one of the pursuers (William McVicar), for whom Mr Turner, advocate, appeared.   Ms Ashby, solicitor represented the defenders in all of the actions. 

[4]        It was a common feature of all eighteen cases that defences had been lodged and timetables issued.  In some of the cases, as in the present one, the proof had been fixed;  in others, the proof date remains provisional, no record yet having been lodged (and in a handful of the cases I also had calling before me a motion on behalf of the pursuer for the record to be received and for a proof now to be fixed).  The proof dates, actual and provisional, ranged from 9 August to 29 November 2016.

[5]        While some reference was made in the course of submissions to some of the individual cases, there was general agreement amongst all parties that all the motions should be disposed of in the same manner.  Having heard submissions, I adjourned for a short period to consider my decision.  On reconvening the court, I intimated that I was refusing all of the motions to sist.  I gave brief reasons for that decision and said that I would issue this fuller note.  I have chosen to write the note with reference to Mr Goligher’s case, that being the first motion on the roll, but the reasoning herein applies equally to all eighteen actions.

 

Background

[6]        The genesis of these motions lies partly in the creation of the Sheriff Personal Injury Court at Edinburgh, coupled with the increase in the privative limit of the Court of Session to £100,000 which has had the effect that since 22 September 2015 all pleural plaques cases seeking damages up to that figure (which as I understand it, in practice, is likely to mean all pleural plaques cases) have been raised in the Sheriff Personal Injury Court (although it is of course open to any particular pursuer to invoke his or her local court’s jurisdiction).  It is common ground among the parties that when such actions were previously raised in the Court of Session they were, from 27 August 2012, regulated by Direction No. 2 of 2012, which was made by the Lord President under and by virtue of the powers conferred on him by paragraph (2) of rule 2.2 of the Rules of Court of Session 1994.  The salient features of that direction were that it provided for new actions to be sisted and to remain sisted until the parties had complied with certain provisions, which included the delivery to the defender of a “pursuer’s pack” which was to include a summary of the pursuer’s employment history, with evidence of that history, an explanation of the pursuer’s trade or other employment activity which exposed him to asbestos and a copy of his up-to-date medical records.  Following delivery of the pursuer’s pack, a defender had eight weeks to intimate whether it proposed to settle the claim and, if so, parties then had another four weeks to agree the terms of settlement.  There were then provisions dealing with the circumstances in which the sist could be recalled and, when that happened, the direction conferred upon the court various case management powers which included the power to adapt the timetable set out in rule 43.6 and the power to order disclosure of information.  I would also observe in passing that although the direction applied to an action already raised as well as to a new action, paragraph 4 provided that an action already raised and sisted would remain sisted but there was no provision for existing actions to be sisted.

[7]        It also appeared to be common ground among the parties that the 2012 direction was introduced to cope with a backlog of pleural plaques actions which had arisen in consequence of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 and the subsequent unsuccessful judicial review thereof.  That said, the direction remains in force insofar as actions are still being litigated in the Court of Session, and I was also informed by Ms Ashby, without contradiction by any of the representatives of the various pursuers, that as many pleural plaques actions as possible were raised by pursuers’ firms in the Court of Session prior to the increase in the privative limit already referred to.  The relevance of that was that whereas there are presently some 120 pleural plaques actions in this court, that figure is not likely to be typical as the months and years go by, and the volume is likely to increase.

[8]        I should also mention that there is, within Edinburgh Sheriff Court, a Personal Injury User Group (“PIUG”) which meets regularly, usually quarterly, and at which, as the group name suggests, court users are represented and which discusses not only issues affecting personal injury actions in Edinburgh Sheriff Court exercising its local jurisdiction, but also, since September 2015, issues which arise in the Sheriff Personal Injury Court.  Since reference was made to the PIUG in the course of submissions, I consider it appropriate to mention that the minutes for the meeting held on 8 March 2016 record that the group agreed that pleural plaques cases should be governed by a practice similar to that in the Court of Session and indeed that the cases currently live were to be identified and “possibly automatically sisted pending the issue of the practice note”.  That said, it is axiomatic that nothing which is discussed or agreed at a PIUG meeting can fetter the court’s discretion in any way.  As I understand it, however, it was following upon that discussion that the defenders intimated the present 18 motions. 

 

Defenders’ submissions

[9]        Ms Ashby produced a most helpful detailed written submission.  I do not propose to rehearse its terms verbatim but, in summary, she submitted that the procedure in the Court of the Session worked well.  It incentivised early release of evidence from pursuers and underpinned the Coulsfield reform of personal injury court procedures.  That reform was geared towards the front loading of cases before they were litigated with a view to maximising pre‑litigation settlements and minimising the number of cases that required to proceed to litigation and the duration of cases which did proceed to litigation.  All the defenders were seeking was the opportunity, by way of provision of full evidence, to settle pleural plaques claims without litigation.  As far as volumes were concerned, about 100 claimants came forward every month.  Some claims did not proceed but it was likely that between 500 and 750 cases would proceed to litigation annually.  It was accepted by the defenders that the courts could not order production of statements.  However, without the production of such statements, defenders could not take an informed view as to whether or not to litigate a case or to settle it.  More than one Lord Ordinary had expressed surprise at a by order hearing as to why there should be any difficulty in releasing pursuer statements in the context of historic asbestos claims.  The direction in the Court of Session got round that issue by ordering assembly and delivery of the pursuer’s pack.  That often resulted in the pursuer in fact releasing the employment statement.  All that the defenders were seeking in the new sheriff court was the equivalent procedure to that in the Court of Session and production of full evidence before a court timetable was put in place. 

[10]      Further, the recent case of Harris v MOD  [2016] CSOH 49, a decision of Lord Boyd of Duncansby on the approach to quantification of full and final damages, was likely to have the practical effect that a medical report would be required in every case.  There was a limited pool of experts in Scotland, which likely meant that reports would have to be obtained from English doctors.  Historically, many pursuers have been reluctant to travel to England.  It was unlikely that medical reports would be available in time for the various pursuers to comply with the timetable dates for the lodging of productions.  That said, insurers in general did not instruct their own reports, albeit they reserved the right to do so in individual cases, and it was not the defenders’ position in any of the cases before me that they required further time themselves to instruct their own medical report.

[11]      The cases were worth anything from about £8,000 to £15,000 and as such, Ms Ashby submitted, were of low value.  Ms Ashby then referred to a number of the cases to illustrate the sort of difficulties which defenders could have in apportioning liability among different employers and ascertaining the extent of unsued exposure, which there often was.  The insurers’ difficulties were compounded by the fact that different pursuers’ firms adopted different approaches to the provision of evidence.  Under the Court of Session procedure parties knew where they stood.  If a similar procedure were not introduced in the sheriff court, there was a risk of the defenders taking more cases to proof, which might result in numerous unallocated proofs every Tuesday, which could not be in the interests of justice. 

 

Submissions for Thompsons

[12]      Mr Marshall submitted under reference to Macphail, Sheriff Court Practice, 3rd Edition (paragraph 13.73) and to Graham v National Coal Board 1964 SLT (Sh Ct) 53, that the court could not adopt a strict rule or policy to sist actions, to apply to every case of a particular category.  Direction No. 2 of 2012 was made by the Lord President under RCS 2.2(2).  There was no equivalent power in the sheriff court.  There was nothing in either the Courts Reform (Scotland) Act 2014 or the All-Scotland Court (Sheriff Personal Injury Court) Order 2015 (SSI 2015/213) extending the power of the sheriff principal or the personal injury sheriffs to adopt policies of this sort.  Power to institute a practice similar to Direction No. 2 of 2012 in the sheriff court lay with the Court of Session and the Scottish Civil Justice Council in terms of the 2014 Act, section 104.  The Scottish Civil Justice Council was already considering the making of pre‑action protocols.  There was no basis for the court pre-empting the introduction of such a protocol.

[13]      Even if the foregoing were wrong, the following factors were against the granting of sists in every case.  The reasons for the making of Direction No. 2 of 2012 did not apply.  There was no backlog of pleural plaques cases awaiting determination in the Sheriff Personal Injury Court nor had there been a sudden surge in the number of cases arising.  There were no features peculiar to all pleural plaques cases which made them unsuitable for the general rules applicable in terms of chapter 36.  The power given to the sheriff principal by rule 36.G1(1B) could not be applied to only one category of case.  The issues which arose were similar to those in many personal injury claims, namely, whether the defender or defenders was or were at fault; apportionment of liability among multiple defenders; the pursuer’s diagnosis and prognosis; and quantification.  As regards the last of these, the Court of Session had provided recent guidance in Harris (supra) and in W v Advocate General 2015 SLT 539.  The amounts of damages in these cases were substantial - £8,000 to £15,000.  Finally, pursuers developing an asbestos related disease had only one chance to be compensated and there was no reason to treat those cases in a way which was disadvantageous in comparison with other personal injury cases.

[14]      As far as individual cases were concerned, Mr Marshall told me that, as things currently stood, it was the pursuers’ intention to comply with the timetable in each and every case. 

 

Submissions for Digby Brown

[15]      Mr Di Rollo, for the Digby Brown pursuers, adopted Mr Marshall’s submissions.  He further submitted (which was not contradicted by the defenders) that the court had no power to order production of statements.  As far as the three Digby Brown pursuers were concerned, the only information which the defenders sought, which they either did not already have or were about to receive, were the pursuers’ statements.  These were never going to be produced and consequently there was no purpose in sisting for that to happen.  In practice the medical reports (which had been produced) provided an employment history which the defenders could read.  They had all the information that was necessary. 

 

Submissions for Mr McVicar

[16]      Mr Turner adopted the submissions of Mr Marshall and Mr Di Rollo.

 

Response by defenders 

[17]      In response, Ms Ashby primarily made reference to her previous submissions.  In response to the suggestion that the defenders could glean information from medical reports, she submitted that that was not a reasonable approach to expect defenders to take.  Doctors were not trained in eliciting an accurate employment history whereas solicitors were. 

 

Discussion
[18]      I have already made reference to the fact that I am not, and cannot be, bound by anything that was said at the PIUG.  Rather, I must decide these motions in accordance with established legal principles, and the provisions of chapter 36, which apply to pleural plaques actions as to any other personal injury action.  However desirable it may be that, so far as possible, the Sheriff Personal Injury Court should endeavour to follow the same approach as did the Court of Session before 22 September 2015, the fact remains that ultimately, these actions are proceeding in the sheriff court, and, as such, must be governed by sheriff court rules and procedure.    Bearing that in mind, the starting point in considering these motions is the statement in Macphail at paragraph 13.71 that a general principle of civil procedure is that an action should be litigated without interruption to a conclusion in conformity with a set of rules of practice and procedure.  That is of course qualified by the court’s power to grant a sist, which is described, at paragraph 13.73, as a “serious interference with the orderly progress of procedure”.  The question of whether to sist is, and must always be, a matter for the discretion of the sheriff and a sheriff must not, by following a practice of adopting a fixed rule of policy, disable himself from exercising his discretion in the light of the particular circumstances of each case (ibid).  I also note that a sist is described as being a stop on the further conduct of the proceedings so that the parties are precluded from taking any further steps therein until the arrival of a certain date or the occurrence of a particular event (paragraph 13.71).

[19]      The first difficulty which the defenders face in the present cases is that (contrary to the approach taken in the Court of Session) the actions have already had timetables fixed.  In some cases (including the present case) proofs have been assigned.  In the present case, no steps whatsoever fall to be taken within the proposed eight week period of sist, nor was it submitted by the defenders in any of the other actions that there was a step due to be taken by them within the next eight weeks, which they were unable to take.  That being so, I find it difficult to comprehend what practical effect a sist in these circumstances could have.  I can well understand the logic of sisting an action at the outset, before a timetable is fixed, but it is less easy to apply that logic to a proposed sist which, it was conceded, would have no immediate impact on dates falling beyond the period of sist.  Indeed, in the context of an action where there is an existing timetable, it is unclear, at least to me, what purpose a sist ever serves (as distinct from a variation of the timetable which can have the same practical effect as a finite sist).

[20]      Since a sist of eight weeks would not in itself have any impact upon the allocated proof dates and since there are no procedural steps which the defenders are unable to take in order to comply with the timetables already fixed, it follows that the proposed sist would not in fact give the defenders any more time than they currently have within which to try to effect a settlement.  I am reluctant to grant any sist which has little, if any, practical effect. 

[21]      It would of course as a matter of logic be possible to sist the actions and to suspend the timetables until the pursuers had complied with various requirements, or produced certain information which would then have the effect that no further procedure could take place until the information had been supplied.  Indeed that is the effect of the Court of Session direction.  Several comments can be made about that in the context of chapter 36 cases.  First, it is difficult to see how that squares with the requirement that any sist should be finite, particularly if any of the pursuers were unwilling to provide the information sought.  Second, the defenders do not in fact seek an indefinite sist but merely a sist of eight weeks.  Third, the sist is said to be for the purpose of the pursuers producing information which I am told they are unwilling to produce.  I do not see any purpose in granting a sist in those circumstances, where it is conceded that I do not have the power to compel the pursuers to produce the information in question. 

[22]      The defenders’ position is in substance that the pursuers should be encouraged to provide the information that they already provide in terms of the Court of Session direction and that the sists would be a means of achieving that.  However, to adopt that approach would be to adopt a blanket policy which I do not consider that it is appropriate (or indeed competent) to apply in the context of deciding whether or not to sist each action.  It is of note that the Court of Session procedure is governed by a direction issued by the Lord President in exercise of a power conferred upon him, which I do not have.  It is also worthy of note that the Court of Session direction confers case management powers on judges in pleural plaques actions which powers I also do not have.  Further, notwithstanding what was stated at the PIUG meeting of 8 March 2016 there must be, at the very least, room for debate as to whether even the sheriff principal has the power to issue a practice note of the sort made by the Lord President; but that is not a matter on which I express a concluded view and is in any event not a matter for me. 

[23]      The final difficulty faced by the defenders, in seeking to persuade me that these actions should be sisted, is that many of the perceived difficulties upon which they relied were alleged difficulties that pursuers would have in complying with the various timetables.  However, it seems to me that if any pursuer does have a difficulty in complying with a timetabled step then the onus is on that pursuer to raise the matter, by lodging a motion to have the timetable varied on cause shown.  Such a motion could then be considered by the court, on its merits, at the appropriate time.  If a pursuer does not do that and fails to comply with a timetabled step then it would be open to the defenders at that time to seek an appropriate remedy (or if they considered that they had been prejudiced by the late disclosure of information, to seek a discharge of any proof which had been fixed). 

[24]      For these reasons, I refused the motions to sist.  That is not to say that genuine issues may not have been identified, which may require to be dealt with elsewhere, whether by practice note (if competent), changes to the rules, protocols or otherwise.  It may be, as all present (which included representatives of those firms who act for pursuers) at the PIUG meeting appeared to acknowledge, that there are reasons why pleural plaques actions should be treated differently from other personal injury actions;  but the fact of the matter is that in terms of the current rules they are not, and the court simply does not currently have any case management powers to deal with such actions in a different way from other types of personal injury action. 

 

Expenses

[25]      At the conclusion of the hearing the pursuers moved for the expenses occasioned by the motions, which was not opposed.  They also moved for sanction for the employment of counsel, exclusively in relation to the motions.  That was opposed.  However, I took the view that it was reasonable to employ junior counsel and granted sanction accordingly.