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JACK CUMMING AGAINST SSE PLC


Submitted: 04 May 2016

 

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

(IN THE ALL–SCOTLAND SHERIFF COURT)

 

[2016] SC EDIN 35

PN186/15

 

JUDGMENT OF SHERIFF FIONA LENNOX REITH, QC

in the cause

JACK CUMMING

Pursuer

against

SSE Plc

Defenders

Act: Wilson, Advocate; Digby Brown, Edinburgh

Alt: Watt, CMS Cameron McKenna LLP, Edinburgh

EDINBURGH, 4th May 2016

The sheriff, having resumed consideration of the cause, allows the minutes of tender and acceptance of tender to be received and to form numbers 11 and 12 of process respectively, and in terms thereof decerns against the defenders for payment to the pursuer of the sum of NINE THOUSAND, ONE HUNDRED AND SEVENTY FIVE POUNDS (£9,175) STERLING, net of the defenders’ liabilities under section 6 of the Social Security (Recovery of Benefits) Act 1997; finds the defenders liable to the pursuer in the expenses of the cause to date of tender as taxed; allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report; certifies Dr Owen Dempsey, Consultant Respiratory Physician, Clinic C, Chest Clinic, Aberdeen Royal Infirmary, Aberdeen, AB25 2ZN, as a skilled person who prepared reports for the pursuer; thereafter sanctions the cause as suitable for the employment of junior counsel.

NOTE

 

Introduction

[1]     This personal injuries action was raised at Edinburgh Sheriff Court for determination in the exercise of the all–Scotland jurisdiction of that court.  The pursuer sought damages due to having developed pleural plaques as a result of exposure to asbestos whilst in the defenders’ employment.  Both liability and quantum had been disputed.  However, a tender was made and accepted in the sum of £9,175.  The pursuer’s agents lodged a motion to grant decree in terms of the tender and acceptance, to certify Dr Owen Dempsey, consultant respiratory physician, as a skilled person who prepared reports for the pursuer and for sanction for the employment of counsel.  The motion was opposed insofar as sanction for counsel was sought.  It called before me on 11 April 2016.  Mr Wilson, advocate, appeared on behalf of the pursuer and Mr Watt, solicitor, appeared on behalf of the defenders.

 

Legislation

[2]     Section 108 of the Courts Reform (Scotland) Act 2014 (“the 2014 Act”) inter alia provides as follows:

Sanction for counsel in the sheriff court and the Sheriff Appeal Court

(1)        This section applies in any civil proceedings in the sheriff court or the Sheriff Appeal Court where the court is deciding, for the purposes of any relevant expenses rule, whether to sanction the employment of counsel by a party for the purposes of the proceedings.

(2)        The court must sanction the employment of counsel if the court considers, in all the circumstances of the case, that it is reasonable to do so.

(3)        In considering that matter, the court must have regard to –

(a)   whether the proceedings are such as to merit the employment of counsel, having particular regard to –

(i)      the difficulty or complexity, or likely difficulty or complexity, of the proceedings,

(ii)     the importance or value of any claim in the proceedings, and

(b)   the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel.”

 

Basis of the pursuer’s claim

[3]     I was told by Mr Wilson that the pursuer was 63 years of age and that he had been employed by the defenders between June 1988 and December 2014.  I was told that the pursuer’s case was that there had been three types of exposure to asbestos in the course of his employment with the defenders.  All were set out in statement of claim 4.  The first type of exposure alleged was that he had delivered and installed domestic appliances and electricity meters and that, as part of the process of installing electricity meters, he had required to run cables from metal clad cut-outs to the meter, and that the meters and metal clad cut-outs had contained asbestos.  The second alleged type of exposure to asbestos had arisen because the pursuer had also attended domestic premises several times a week to repair or remove appliances, including storage heaters, that this would involve either partially dismantling the heaters to repair or replace internal elements or dismantling the heaters completely in order to remove them from the premises to make way for new heating systems and that, when repairing, replacing or removing storage heaters, he would strip them down, exposing internal elements and would be exposed to asbestos with which the internal elements and casing of the storage heaters were lined.  The third alleged type of exposure was that which occurred when the pursuer required to carry out repairs to refrigeration systems at the defenders’ premises.  Asbestos sheets were used during the welding process to prevent heat transference.  It was alleged that all of these processes had resulted in disturbance of asbestos and the release of asbestos fibres into the atmosphere and that he was thus exposed to asbestos during all of these various processes.  The pursuer averred that he continued to be exposed to asbestos up until his retirement at the end of 2014.  His position had also been that he had not been exposed to asbestos with any other employer.  It had then been averred in statement of claim 5 that, in October 2013, he had been diagnosed with pleural plaques.  It was averred on his behalf that he was at an increased risk of developing other asbestos related conditions including but not restricted to mesothelioma, that the risk of him developing mesothelioma was 1%, that development of such a condition would amount to a serious disease or other serious deterioration in his condition and that the pursuer was distressed and anxious as a result of the diagnosis of pleural plaques and the associated risk of developing another asbestos related condition.  It was also averred that the pursuer understood that two of his former colleagues had died as a result of asbestos related illnesses.  In statement of claim 6 it was averred that the pursuer’s claim was based on the defenders’ breach of their common law duty to take reasonable care for the pursuer and their breach of certain regulations relating to asbestos. 

 

Defenders’ response

[4]     The defenders’ response in answer 4 to the pursuer’s averments on the question of liability included the following:

“Admitted the pursuer was employed by the defenders from June 1988 to December 2014.  Quoad ultra denied.  Esto if (sic) the pursuer was exposed to asbestos in the employment of the defender, which is denied, the pursuer is called upon to state the date, or approximate date, upon which that exposure stopped.  The pursuer is called upon to state whether he delivered domestic appliances to homes and installed electricity meters, including the dismantling and repair of internal elements of heaters, throughout his employment with the defenders.  The pursuer is called upon to aver on record the names, and addresses if known, of any colleagues or supervisors with whom he worked while employed by the defenders.  The pursuer is called upon to vouch his employment history by producing an HMRC schedule of national insurance contributions, which the pursuer’s agents had been called upon to produce, but have not done so.  The pursuer is called upon to aver the names and addresses of all his former employers with whom he is said to have worked and been exposed to asbestos, his periods of employment and of exposure, the manner in which he was exposed, the quantities of asbestos dust given off thereby, his role with each of the companies and the names and addresses of his supervisors and colleagues who worked underneath/alongside whilst carrying out the aforementioned work, including the details of any such exposure during periods of any self-employment.  The pursuer’s failure to answer said calls will be founded upon”.

 

 

Procedural history

[5]     My understanding from the submissions made and documentation provided to the court is that the most significant relevant correspondence and steps in the litigation were as follows:-

(1)  Intimation of the claim by the pursuer’s agents to the defenders by letter dated 10 July 2015.  In this letter it was said that the pursuer had been employed with the defenders between approximately June 1988 and December 2014, coupled with a summary of the work which he had undertaken during the course of his employment with them and it was said that, as a result of his exposure to asbestos in the course of his employment with them, he had developed pleural plaques.

(2)  The defenders instructed agents in respect of the claim on 15 July 2015.

(3)  On 21 July 2015 the defenders’ agents wrote to the pursuer’s agents intimating their involvement and requesting further information, including the pursuer’s HMRC schedule.

(4)  By letter dated 23 July 2015 the pursuer’s agents replied to the defenders’ agents providing some further information and confirming that they would forward a copy of the pursuer’s HMRC schedule as soon as it became available.

(5)  On 24 July 2015 the defenders’ agents wrote to the pursuer’s agents requesting contact details of the pursuer’s former supervisors, the date exposure stopped, confirmation of whether the claim had been intimated on any other former employers and the pursuer’s date of diagnosis and medical records.

(6)  By letter dated 27 August 2015 the pursuer’s agents replied to the defenders’ agents providing further information and confirming “it is our client’s position that he was only exposed to asbestos whilst employed by your client.  It is alleged that said exposure continued into the 1990’s.  We have not intimated claims to any of our client’s other employers”.

(7)  On 27 August 2015 the defenders’ agents wrote to the pursuer’s agents again requesting the HMRC schedule.

(8)  On 1 October 2015 the defenders’ agents wrote to the pursuer’s agents further requesting the HMRC schedule.

(9)  On 7 October 2015 the pursuer’s agents responded stating that the HMRC schedule had been requested and was awaited. 

(10) The defenders’ agents e-mailed the pursuers agents on 23 October 2015 further requesting the HMRC schedule.

(11) The pursuer’s agents responded by letter dated 27 October 2015 reiterating that they were themselves still awaiting a copy of the pursuer’s HMRC employment history schedule which had been requested in February 2015.  The letter also said “From recent discussions with HMRC, we understand that it is likely to take some time to be sent out to us given their current backlog.  In light of this, we intend to recover the information by way of specification of documents once proceedings are raised.  As mentioned in our letter of 7 August 2015, it is our client’s position that he was only exposed to asbestos whilst employed by your clients.  In any event, our client has provided us with details of his employment history…”  The letter then set out in detail the pursuer’s employment history provided as from 1967 through to December 2013 giving the names of employers, the dates by which he was employed by each of them, and the nature and place of his employment with each of them.

(12) The defenders’ agents e-mailed the pursuer’s agents again on 28 October 2015 and asked when the pursuer alleged that his exposure to asbestos in the employment of the defenders ceased and putting the pursuer on notice that raising the action without the HMRC schedule would in their view be premature. 

(13) On 28 October 2015 the defenders’ agents e-mailed the pursuer’s agents seeking further information about the pursuer’s role with each of his former employers.

(14) The defenders’ agents e-mailed the pursuer’s agents again on 3 and 20 November and 7 December 2015 again requesting the information in relation to outstanding matters.

(15) On 9 December 2015 the defenders’ agents accepted service of the initial writ.  In correspondence returning the principal initial writ dated 9 December 2015, the defenders’ agents requested a response to their e-mails of 28 October, 3 and 20 November and 7 December 2015.

(16) The defenders’ agents lodged defences on 23 December 2015.  In the defences the pursuer was called upon to produce an HMRC schedule.  The defenders’ agents made reference to this in their letter of 20 December 2015 intimating the defences.

(17) On 11 January 2016 the defenders’ agents wrote to the pursuer’s agents repeating the request for the HMRC schedule and confirmation of the pursuer’s role with each of his former employers as named by the pursuer’s agents in previous correspondence.

(18) The defenders’ agents e-mailed the pursuer’s agents on 11 January 2016 requesting the HMRC schedule and medical reports.

(19) On 25 January 2016 the defenders’ agents e-mailed the pursuer’s agents again requesting the HMRC schedule and confirmation of the dates upon which the pursuer alleged his exposure to the asbestos stopped.

(20) On 27 January 2016 the pursuer’s agents provided the defenders’ agents with a copy of the HMRC schedule and lodged it in process.

(21) On 24 February 2016 the pursuer’s agents e-mailed the defenders’ agents stating that the exposure had stopped sometime in the mid 1990’s.

(22) On 1 March 2016 the pursuer’s agents intimated a significant number of adjustments.  The pursuer’s adjusted pleadings stated that: “the pursuer continued to be exposed to asbestos until his retirement at the end of 2014”.

(23) On 15 March 2016 the defenders’ agents intimated a tender by e-mail and by post.

(24) On 22 March 2016 the tender was accepted by the pursuer.

 

Submissions on behalf of the pursuer

[6]     Mr Wilson reminded me that, having regard to section 108(2), if the test in that subsection was met, the court must sanction the employment of counsel.  He told me that he would be founding on the factors in subparagraphs (i) and (ii) of section 108(3)(a).  I was also referred to two recent unreported decisions in the all-Scotland Sheriff Personal Injury Court, namely Dow v M&D Crolla Limited [2016] SC EDIN 21 and V (as Parent and Guardian of J a Child) v M&D (Leisure) Limited [2016] SC EDIN 22.  In both cases, section 108 of the 2014 Act had arisen for consideration.

 

Difficulty or complexity, or likely difficulty of complexity of the proceedings

[7]     Mr Wilson submitted that there were eight factors which were relevant to section 108(3)(a)(i) and the question of the difficulty or complexity, or likely difficulty or complexity, of the proceedings.

(1)   Liability had been an issue.  Mr Wilson submitted that industrial disease cases involving exposure to asbestos were often complex if liability remained in dispute.  He submitted that that was particularly so in a case such as the present one.  Exposure had not been of the traditional sort such as one would normally see in a case, for example, of exposure to asbestos in the shipbuilding industry.  By contrast, this case had involved three particular situations where the pursuer had been working with equipment involving asbestos.  Mr Wilson also submitted that it can be particularly difficult to prove liability where there has been exposure to asbestos in more recent years, from the 1980’s onwards.  However, he did not elaborate on why this might be the case.

(2)   Mr Wilson submitted that, in general, in asbestos cases evidential issues can be very challenging.  He told the court that this point was related to the fourth factor.

(3)   Mr Wilson submitted that, in cases such as the present one, the legislative and regulatory background was complicated.  The legislation and regulations had to be applied to the particular facts of a case.  This was rarely straightforward.  This was particularly so in cases involving exposure of a less traditional sort, as in the present case.

(4)   Mr Wilson submitted that, because of the second and third factors to which he had made reference, expert engineering reports were required in cases where liability was in dispute.  Experience had shown that the experience of counsel had regularly been helpful in such cases in view of the complicated issues arising.  Consultations lasting many hours would cover a range of matters.  Mr Wilson told the court that he did not agree with the simple assertion made on behalf of the defenders in Mr Watt’s written submission which included the following: “The law in relation to pleural plaques is not complex… if you prove employment and exposure after the period known as the “date of knowledge” (the date upon which it is accepted the employers should have been aware of the dangers of asbestos) you are able to demonstrate liability”.  Mr Wilson submitted that it was clear, for example, from the opinion of Lord Pentland in Prescott v The University of St Andrews [2016] CSOH3, that there can be formidable difficulties establishing that that has been negligent exposure.  In Prescott the pursuer had been exposed to asbestos in a library to which he had been a visitor.  It had been an unusual case, but it was one in which the Lord Ordinary had come to the conclusion that the evidence was not sufficiently reliable to entitle him to find as a fact that the pursuer had been exposed to dangerous quantities of asbestos dust during the renovation work in the library and he held that the action could, therefore, not succeed.  Expert evidence had been led in that case.  The expert had accepted that she was not able to express any view as to what the pursuer’s actual level of exposure to asbestos dust was likely to have been on any of the factual hypotheses she had been asked to consider.  As recorded by the Lord Ordinary, senior counsel for the pursuer had, therefore, been faced with an insurmountable difficulty when she came to make her closing submissions because she was not in a position to identify the factual finding which the court should make on the actual level of asbestos dust to which the pursuer had probably been exposed.  At paragraph [64] of his opinion, the Lord Ordinary said: “In order for the pursuer to succeed in establishing negligence against the defenders he must establish, on the balance of probabilities, the actual level of asbestos dust to which he was exposed.  It is essential for the actual level of exposure to be proved because otherwise the court cannot decide whether the exposure was more than de minimis, in which case liability could not arise”.  Mr Wilson submitted that this was indicative of the sort of issues which can and do arise in asbestos cases.

(5)   Mr Wilson further submitted that one of the very real complications of advising in pleural plaques cases was the issue of provisional damages.  I was reminded of the terms of section 12 of the Administration of Justice Act 1982.  Mr Wilson submitted that this was a particularly difficult area for a pursuer faced with having to accept a lower provisional sum which might seem to some to be low but which can be significant for a pursuer, and reserving the right to return to seek further damages if he were to develop an asbestos related condition or, alternatively, faced with having to give up that right.  It was difficult to advise in such cases.  There were also unresolved issues in the Scottish courts in relation to tenders involving provisional awards of damages and the issue of return conditions.  This was illustrated by the different approaches taken by the court in Talbot v Babcock International Limited 2014 SLT 2077 and Fraser v Kitsons Insulation Contractors Limited 2015 SLT 753.  The tender in the present case had included an offer in full and final settlement (which had ultimately been accepted) but, in advising the pursuer in relation to this, such issues had had to be addressed.

(6)  Quantification of damages is complicated and is not straightforward in a case such as the present one.  Mr Wilson told me that insofar as Mr Watt would be making reference to the “framework agreement”, this was an agreement which was entered into following legislation introduced by the Scottish Parliament to allow claims in pleural plaques cases.  An enormous backlog of cases had arisen pending the decision of the Supreme Court in relation to a challenge to the validity of the legislation.  The framework agreement negotiated in 2015 was, however, not binding.  There had been an issue about the correct approach in relation to quantification of damages.  Mr Wilson drew my attention to, for example, the opinion of Lord Boyd of Duncansby in Harris v Advocate General [2016] CSOH 49.  Lord Boyd had adopted an approach to quantification of damages which was that which had been taken by Smith LJ in Rothwell v Chemical and Insulating Company Limited [2006] ICR 1458.  Mr Wilson submitted that the approach was a very complex one.  He submitted that it was not just a question of looking at the framework agreement.  It was necessary to take into account the percentage risk that the pursuer might at a later date develop another asbestos related condition such as mesothelioma.  It was hard to quantify giving up the risk of coming back to court.  The statement of valuation had been drafted in this case following the approach taken by Lord Justice Smith, but the decision in Harris by Lord Boyd had only been issued on 31 March 2016 after the tender had been received and accepted.  This had been a principal concern in the present case.  

(7)   The seventh factor was what Mr Wilson described as being “general observations”.  He submitted that, before the civil court reforms in September 2015, the vast majority of cases involving pleural plaques had been brought in the Court of Session. He had not been aware of any arguments being advanced in such cases in the Court of Session either to the effect that that forum had not been appropriate or that, at the stage of addressing motions for expenses, any award of expenses should be restricted to the sheriff court scale without sanction for counsel.  He submitted that the inference was that it was appropriate, and considered to be appropriate, for counsel to be involved in such cases.  Such arguments would have been open to defenders, but he did not understand them to have been made. 

(8)   In relation to the involvement of counsel in the present case, I was told that counsel had not drafted the initial writ.  Counsel was instructed once defences had been lodged, as was now the normal position.  Counsel was instructed because the issue of liability was not conceded.  It had remained in dispute.  A number of calls were also included in the defences.  It became necessary to aver in quite specific detail the question of the pursuer’s employment and experience, including experience with other employers.  These calls had been made in answer 4.  Junior counsel was instructed at that stage for a “Record consultation”, namely the stage at which pleadings were to be finalised.  Mr Wilson understood that counsel had discussed at the consultation the defences, the issue of liability, the pursuer’s employment history and the question of the pursuer’s experience with the defenders.  The question of the pursuer’s medical condition and the issues of provisional and full damages were also discussed, along with the general prospects in relation to the case.  Adjustments were then drafted by counsel together with a statement of valuation of the claim on behalf of the pursuer and a specification of documents.  The consultation was held on 9 February 2016.  The minute of tender was then received on 15 March 2016.  It was thought appropriate to consult with counsel in relation to the tender.  Detailed advice was given to the pursuer in relation to quantification of the claim, both on a provisional basis and on a full and final damages basis, together with advice in relation to the consequences of accepting either provisional damages or full and final damages.  The pursuer sought time following the consultation to consider the advice given.  Instructions were then given by him on 21 March to accept damages on a full and final basis. 

 

Importance of the claim to the pursuer

[8]     As regards section 108(3)(a)(ii) and the question of the importance of the claim to the pursuer, Mr Wilson submitted that there was no doubt that cases involving exposure to asbestos with possible long term health problems arising could be relevant to this factor.  I was told that, in this particular case, the pursuer was very anxious and concerned about his condition.  The concern he had had was that a number of work colleagues had also contracted asbestos relation conditions.  My attention was drawn to the averment in statement of claim 5 which read: “The pursuer is distressed and anxious as a result of the diagnosis of pleural plaques and the associated risk of developing another asbestos related condition.  Believed and averred that two of the pursuer’s former colleagues, George MacKenzie and William “Dils” Hendry died as a result of asbestos related illnesses”.  This concern was reflected in the pursuer’s decision to take a few days following the consultation in relation to the tender in order to reach a final view about what he wanted to do in relation to the it. 

 

Submission for the defenders

[9]     Mr Watt told the court that the motion was opposed on the basis that the instruction of counsel was not reasonable in terms of section 108 of the 2014 Act.  Mr Watt had lodged a written submission in advance of the motion and he then responded further in response to the submissions advanced on behalf of the pursuer.

 

Difficulty or complexity of the proceedings

[10]   The written submission on behalf of the defenders included the following:

“…It is the defenders’ position that instruction of counsel was not reasonable in the circumstances of the case as the area of law is not complex...

 

“…A group of major insurers challenged the validity of the 2009 Act by judicial review. In 2011 the Supreme Court ruled that the 2009 Act was valid.  Nevertheless, the law in respect of pleural plaques was uncertain between the issuing of the decision in Rothwell and the decision of the Supreme Court in respect of the validity of the 2009 Act in 2011…The courts, the insurance industry and pursuers’ agents were also aware of the backlog of cases this period of uncertainty had created.  A framework agreement was negotiated between pursuers’ agents and the insurance industry whereby full and final damages were paid on a sliding scale, according to the age of the claimant, with a fixed sum paid for provisional damages with agreed return conditions. The framework was renegotiated and increased in 2015.  The case of W v Advocate General for Scotland 2015 SLT 537 sought to depart from the agreed fixed sum for provisional damages with the court being asked to assess an appropriate award for provisional damages.  An award in excess of the framework was made in W v Advocate General for Scotland where the pursuer was found to suffer from a ‘greater than average’ level of anxiety as a result of his condition.  The framework still exists as a useful negotiating tool…

 

“The courts (the Court of Session) sought to address the back log of cases by issuing “Direction No. 2 of 2012 – Personal Injury Actions in respect of Pleural Plaques and the Damages (Asbestos-related Conditions) (Scotland) Act 2009” (“Direction No. 2”).  The direction applied to actions for damages arising out of the exposure to asbestos and resulting in the development of pleural plaques and applied to actions which were already raised as well as new actions.  The direction held that actions which were already raised and sisted were to remain sisted and new actions would be sisted immediately after calling without the need for further procedure until the parties had complied with a number of provisions set out in the direction.  The direction required the pursuer to assemble and deliver to the defender a “pursuer pack”. 

 

“The pursuer pack was to include:

a)      A summary of the employment history of the pursuer and evidence of that history;

b)      An explanation of the pursuer’s trade or other employment activity which exposed him to asbestos;

c)       A copy of the pursuer’s up-to-date medical records. 

 

“The defender had eight weeks upon receipt of the pursuer pack to intimate to the pursuer whether it proposed to settle the pursuer’s claim, a further four weeks to agree the terms of settlement and to produce a Joint Minute disposing of the action.  If the defender failed to respond to the pursuer pack within the requisite period, the pursuer could, at that point, apply by motion for the recall of the sist and the case would be sent to a by order hearing.  The system put in place by Direction No. 2 demonstrates the ease by which these claims can be settled if parties are forthcoming with information at the start of the claim.  

 

“The increase in the threshold of the Court of Session means that pleural plaques claims will now be raised in the Sheriff Court and Direction No.2 is irrelevant.  Nevertheless, Direction No. 2 should be borne in mind when litigating pleural plaques claims particularly in relation of the early and full disclosure of information.  If parties do not do so, the courts risk being inundated with claims of this nature. 

   

“(In this case) the pursuer sought compensation for pleural plaques, which arose out of alleged exposure to asbestos during his employment with the defenders.  The defenders’ agents made repeated requests for the pursuer’s HMRC schedule of employment prior to the action being raised...  The defenders required this information to establish whether any of the pursuer’s other former employers could have exposed the pursuer to asbestos and thus be potentially liable for the pursuer’s development of pleural plaques.  The pursuer was diagnosed with pleural plaques on October 2013 and had until October 2016 to raise a claim.  The pursuer’s agents were put on notice in an email of 23 October 2015 that if the action was raised, in the absence of such information, it would be premature. Nevertheless, the action was raised prematurely and unnecessarily in the absence of this information in December 2015.

 

“The case was settled on 22 March 2016 by way of tender, after the HMRC schedule was provided to the defenders’ agents.  The claim settled for £9,175 on a full and final basis by reference to the Pleural Plaques Framework Agreement 2015.  In the absence of the HMRC schedule, the defenders were unable to make an offer to settle the claim.  The HMRC schedule was not provided to the defenders’ agents until 27 January 2016, when it was lodged in process…

 

“The instruction of counsel was unreasonable and unnecessary.  The defenders’ agents engaged with the pursuer’s agents from the outset of the action.   Whilst no admission of liability was made, the defenders’ agents repeatedly requested information from the pursuer’s agents.  The defenders’ agents were specific in their requests.  The defenders’ agents sought the pursuer’s updated medical records, more specification upon the date that the pursuer alleged his exposure to asbestos stopped and the pursuer’s updated HMRC schedule. The outstanding HMRC schedule was routinely provided at the outset of an action under Direction No. 2 in actions raised in the Court of Session.  This information was important to the defenders and the pursuer’s agents were aware of this…

 

“The action was not unduly complicated by the defenders’ denial of liability.  The defences lodged were skeletal in nature and the pursuer’s agents were aware that the claim was being investigated.  The pursuer’s agents had the option to sist the action upon receipt of the defences to allow them to gather all relevant information and for the defenders to conclude investigations.  This would have been the reasonable way to proceed in the circumstances.  However, rather than sist the action, the pursuer’s agents, on the basis of skeletal defences denying liability, instructed counsel.  This was unreasonable and premature.  Information was outstanding, the defences were skeletal in nature, the defenders were engaged in the claim and the pursuer’s agents were aware that the matter was being investigated.    

 

“The written adjustments prepared by counsel were unnecessary.  Notwithstanding our primary position that the matter should have been sisted, the adjustments were not made in response to any new information arising from the defences.  The adjustments could have been included in the original summons.  The pursuer’s agents, Digby Brown, represented the pursuer in W v Advocate General for Scotland.  They are a specialist personal injury law firm.  On their website they state that they have “many years of experience in working for victims of industrial diseases” and are described as “specialist pleural plaques solicitors”.  There are a number of solicitors within Digby Brown who could have drafted such adjustments, if they were considered necessary.   

 

“The law in relation to pleural plaques is not complex.  On the contrary, it is well settled area as demonstrated by Direction No. 2 and the codified framework agreement. If you prove employment and exposure after the period known as the “date of knowledge” (the date upon which it is accepted employers should have been aware of the dangers of asbestos) you are able to demonstrate liability.  The instruction of counsel in straight forward cases is unreasonable and should not be encouraged.  The quantification of such claims is also straight-forward and is informed by the Framework Agreement and the case of W v Advocate General for Scotland.  The tender which was lodged on 15 March 2016 and accepted by the pursuer was based on the Framework Agreement.  There was no complexity involved in the quantification of this specific action.  Such offers are considered routinely by the pursuer’s agents.  There was no need to consult with counsel in respect of the tender and the decision to do so was unreasonable. 

 

“There are a large number of pleural plaques claims which have been raised and will be raised in the future.  The claims are low value and can be easily resolved as demonstrated by the framework agreement and Direction No. 2, which worked well to settle all but a minority of claims which were raised in the Court of Session.  The increase of the threshold of the Court of Session means that pleural plaques claims will now be raised in the sheriff courts.  Parties should be encouraged to attempt to settle these claims, if possible, to avoid burdening the courts with these claims unnecessarily.  If sanction for counsel is granted in this case, it risks open the floodgates for applications of this nature in all pleural plaques claims.  There is nothing out of the ordinary about this case.  The case would have been easily settled without the need for counsel, if it had been raised under the old system and parties had been required to disclose information at the outset of the case.  As it stands the case was easily resolved once all relevant information had been provided and the instruction of counsel was unnecessary.  Any apparent difficulty was created by the lack of disclosure and the premature raising of the case by the pursuer’s agents.  The instruction of counsel was therefore not reasonable and the test as set out in the 2014 Act is not met.” 

 

[11]   Mr Watt then responded further in response to the submissions advanced on behalf of the pursuer.  In relation to the third factor which had been relied upon by the pursuer, insofar as Mr Wilson had submitted that the issue of liability could be particularly difficult where there has been exposure in more recent years, Mr Watt disputed this.  He submitted that, in relation to exposure by the late 1980’s, it had become easier for pursuers to prove liability. 

[12]   In relation to Mr Wilson’s criticism of a passage in the written submission on behalf of the defenders which read “If you prove employment and exposure after the period known as the “date of knowledge”… you are able to demonstrate a liability”, Mr Watt submitted that this meant more than de minimis exposure.  A pursuer just has to be able to prove that any exposure was beyond de minimis. 

[13]   In relation to Mr Wilson’s point about the vast majority of pleural plaques cases having been litigated in the Court of Session prior to the civil court reforms in September 2015, Mr Watt told the court that he was aware of some cases having been raised in the sheriff court prior to the sheriff court reforms, albeit that the vast majority of cases had at that point been raised in the Court of Session.  He was not aware of it having been argued in any Court of Session case involving pleural plaques that that forum had not been appropriate, or that expenses should be awarded on the sheriff court scale without sanction for counsel.  However, he had been aware of motions to remit such cases from the sheriff court to the Court of Session.

[14]   In relation to page 1 of the “paper apart” comprising the defenders’ written submission, Mr Watt submitted that, since the decision of the Supreme Court in December 2011 in relation to the 2009 Act, the legislative position has been extremely clear.  He submitted that there can be no argument that the legislative position is unclear or unduly complex.  The framework agreement had been created to allow pursuers to negotiate agreement of their cases either with provisional damages at a flat rate of £4,000 or on a full and final basis which involved a sliding scale.  The framework agreement was not binding but was entered into with most agents acting for pursuers and the vast majority of insurers.  There was a sliding scale on the basis that the pursuer would get slightly more if he was younger.  The vast majority of such cases were settling in terms of the framework agreement.  He submitted that pleural plaques cases in general were not sufficiently complex to render the use of counsel reasonable.  The privative limit had now been raised to £100,000.  The only reason why cases had been proceeding with counsel in the Court of Session was by virtue of the fact that they had been raised in the Court of Session.  He submitted that the court would require to be persuaded that there was something in the present case to take it out of the ordinary in order to make it reasonable to instruct counsel, and there was nothing to take this case out of the ordinary.

[15]   Mr Watt submitted that there should be a presumption that pleural plaques cases should proceed with solicitors unless something was shown to be out of the ordinary in a particular case to make it reasonable to instruct counsel.  His general position was, therefore, that it was unreasonable in pleural plaques cases for a pursuer to instruct counsel. 

[16]   Turning to the facts of this particular case, Mr Watt referred me to the HMRC schedule produced on behalf of the pursuer.  This was now number 6/4 in the inventory lodged on behalf of the defenders.  This listed the employers who paid national insurance for the tax years involved.  This was, in contrast to a letter simply setting out the recollection of a pursuer, clear proof of employment.  It had been important to know when the pursuer’s exposure to asbestos with the defenders had ceased.  This was because there were a number of insurers and each was “at risk”.   An HMRC schedule allowed an objective assessment to be made.

[17]   In relation to the letter dated 27 October 2015 from the pursuer’s agents setting out details of the pursuer’s employment history, Mr Watt told the court that it did not give detail of what the pursuer’s roles were with each and when the exposure to asbestos with the defenders stopped.  (I would, however, pause to observe that the HMRC schedule did not give these details either).  The HMRC schedule had recorded that the pursuer had been employed by the defenders until 2014/15 (I would, however, pause to observe that it was not clear to me why the defenders, as his employers, required to be provided with this information).  It had been necessary to know when the exposure to asbestos stopped to allow apportionment.  More detail was, therefore, required in relation to other employers, including the circumstances in which he was exposed to asbestos with them and, if not, confirmation of his role.  (I would, however, pause to observe that it had already been indicated in a letter dated 7 August 2015 from the pursuer’s agents to the defenders’ agents that the pursuer’s position was that he was only exposed to asbestos whilst employed by the defenders and that they had not intimated the claims to any of the pursuer’s other employers). 

[18]   Mr Watt further submitted that the action had been raised prematurely on 9 December 2015.  The diagnosis had been made in October 2013.  There was therefore no pressing time bar reason for an initial writ to be served in December 2015.  The action did not time bar until October 2016.

[19]   The pursuer’s agents had, therefore, been put on notice that the raising of the action would be premature.  This was in the absence of the HMRC schedule and knowing the date when exposure to asbestos had ceased.  Without information about other employers the defenders had been unable to make an offer to settle the claim.  Skeletal defences had been lodged.  Calls had been made in answer 4.  This information was important for the defenders.  This was needed to enable advice to be given about a proportionate split of any liability.  On 24 February 2016 the pursuer’s agents e-mailed the defenders’ agents stating that exposure to asbestos stopped sometime in the mid 1990’s.  However, on 1 March 2016 the pursuer’s agents intimated a significant number of adjustments which included an averment that the pursuer continued to be exposed to asbestos up until his retirement at the end of 2014.  (I note that the tender was then intimated on 15 March 2016.)

[20]   Mr Watt submitted that the action had not been unduly complicated by the denial of liability.  There had been no need for a consultation at that point.  If the action had been proceeding in the Court of Session, the action would have been sisted for six months for the pursuer’s agents to produce the “pursuer pack”.  This would have included full medical records and a summary of the employment history of the pursuer.  An explanation of his trade which had exposed him to asbestos would also have been included.  When the action was raised the defenders did not have all of this.  The defenders had therefore not been able to make a reasonable offer at that point.

[21]   Within two weeks of the adjustment having been made by the pursuer to confirm that his exposure to asbestos had continued until 2014, a tender had been lodged in line with the framework agreement.

[22]   I was also reminded that claims such as the present one are low value claims.  If it were to be regarded as reasonable to instruct counsel in all cases of such a nature in the all-Scotland Sheriff Personal Injury Court, it would quickly become uneconomic for defenders to deal with such cases.  This would be particularly so if high volumes of such cases started to progress through the court.  It should not be regarded as reasonable for counsel to be instructed simply because a case involves exposure to asbestos.  Mr Watt confirmed that he would not say that there could never be such a case in which it would be reasonable to instruct counsel, but his position was that this was not such a case. 

 

Importance of the case to the pursuer

[23]   Mr Watt submitted that the court should recall that, because the condition was asymptomatic, the pursuer was only entitled to compensation if he was suffering anxiety as a result of the diagnosis such as to justify an award of compensation.  In this case, the pursuer’s averment about this had been enough to give a basis for the claim.  However, Mr Watt submitted that it should not go any further and also provide a basis for considering matters under section 108(3)(a)(ii).  Other cases involved a greater risk of developing asbestos related conditions and, in such cases, this might lead to a higher quantification of damages.  In this case what was being said about anxiety on the part of the pursuer was not such as to require that counsel be instructed.  Mr Watt appeared to be submitting, in effect, that because the pursuer’s anxiety had provided a basis for seeking compensation for the diagnosis of pleural plaques, that in a sense “exhausted” the issue of anxiety so that it could not also be taken into account by the court in considering matters under section 108(3)(a)(ii). 

 

Response on behalf of the pursuer

[24]   I was reminded that liability had never been conceded in this case.  The case of Prescott was an example of the complex issues which can potentially arise where it is necessary to establish liability.  Skeleton defences are normal in such cases.  It is likewise normal to instruct counsel at that stage.  Liability was in dispute.  In this case, there had not been the sort of exposure one was immediately accustomed to dealing with.  For example, this had not been a situation where the pursuer had been applying monkey dung.  There were potential evidential complications because of the three different types of exposure the pursuer had been involved in.  The defenders will have been well aware whether employees such as the pursuer might have been exposed to asbestos in the course of their employment with them but chose to hide behind skeleton defences.  In relation to the question of the end of the pursuer’s period of exposure to asbestos, that would be a matter within the knowledge of the defenders.  It had been reasonable for counsel to have drafted the adjustments having regard to the fact that counsel would have been putting the averments in order for proof.  It would have been unsafe for the pursuer’s agents to have assumed that the case would be settled.  Counsel who was to conduct the proof properly dealt with adjustments and the statement of valuation.  Counsel would be leading the evidence.  It would be appropriate that he carried out the adjustments necessary to prove the case and to consider the value of the pursuer’s claim, and advise the pursuer in relation to any offer made. 

[25]   I was reminded that, by the time the action was raised in December 2015, this had already been over two years after the diagnosis.  The claim had been intimated to the defenders on 10 July 2015.  The letter of claim had set out a narrative of the pursuer’s position about his employment and dates.  The defenders had been put on notice at that point that it was the whole of the pursuer’s employment up to December 2014 that was being referred to.  The pursuer’s agents had then written to the defenders’ agents by letter dated 23 July 2015 giving further detail about the pursuer’s employment and his claim.  By letter dated 7 August 2015 from the pursuer’s agents to the defenders’ agents, the pursuer’s agents gave details of the pursuer’s former work colleagues and confirming that it was the pursuer’s position that he was only exposed to asbestos whilst employed by the defenders.  This was based on the pursuer’s recollection.  The pursuer’s agents did not then have the HMRC schedule.  It had been requested in February 2015 but was only provided to the pursuer’s agents on 20 January 2016.  It was thereafter intimated and lodged in process within days.  By letter dated 27 October 2015 from the pursuer’s agents to the defenders’ agents, the pursuer’s agents set out the pursuer’s recollection of the details of his employment history.  I was told that this accorded with the HMRC schedule which later came to hand.  This was therefore all produced before the action was raised.

[26]   Mr Wilson submitted that Mr Watt had seemed to be in danger of making a general proposition about expenses being greater than the sum sued for.  I was reminded that this was anecdotal only insofar as there was an “economic” argument being advanced.  Each case had to be taken on its own merits.

[27]   In relation to Mr Watt’s point about the pursuer’s agents being specialist solicitors, Mr Wilson confirmed that they are indeed specialist personal injury solicitors.  However, he told the court that there were nevertheless categories of cases where his instructing agents instruct counsel and these include cases such as the present one.  Counsel are able to give independent advice and there was now a specialist bar where members of the bar and counsel have particular experience of cases such as the present case.  Asbestos-related litigation is of such importance to a client and there are such potentially complex issues arising that it is regarded as being appropriate to instruct counsel in seeking to provide the best service to a client unless cases settle at a very early stage.  There are a number of counsel who are very experienced in relation to such cases.  It is an increasingly specialist area. 

 

Discussion

[28]   Mr Watt submitted that, if sanction were to be granted in the present case it would risk opening the “floodgates” for applications of this nature in all pleural plaques claims.  I do not accept that.  A decision on whether it is reasonable to grant sanction for the employment of counsel depends on the merits of the particular case under consideration.  I have, therefore, taken that approach in the present case.  In a somewhat similar vein, Mr Watt submitted that, if it were to be regarded as reasonable to instruct counsel in such cases, it would quickly become uneconomic for defenders to deal with such low value claims.  It was not clear to me that this argument was of any particular assistance in enabling the court to consider whether, in the circumstances of the present case, it was reasonable to employ counsel.  It was in any event, as pointed out by Mr Wilson, purely anecdotal. 

[29]   In my opinion, in general, the submissions advanced on behalf of the pursuer fell to be preferred to those advanced on behalf of the defenders.  In particular, I was satisfied that this was a case where the factors in both subparagraphs (i) and (ii) of section 108(3)(a) were relevant.

[30]   As to section 108(3)(a)(i), I am satisfied that the proceedings were such as to merit the employment of counsel having regard to the difficulty or complexity of the proceedings.  This was not a situation where the pursuer’s exposure to asbestos had been of the traditional sort, such as in the shipbuilding industry.  It had, by contrast, involved the pursuer in having been exposed to asbestos in the course of three different types of situation in the course of his employment with the defenders.  Liability was denied and had never been conceded.  The defences lodged on behalf of the defenders included a number of detailed calls upon the pursuer as quoted above.

[31]   In my opinion, faced with the detailed calls made, it was entirely reasonable for counsel to be instructed for the purposes of the consultation, the drafting of adjustments and a statement of valuation of the claim on behalf of the pursuer, as it also was in relation to the question of advising on the tender when it was received.  I am satisfied that the proceedings were not the straightforward exercise contended for on behalf of the defenders.  Mr Watt submitted that the pursuer only had to prove that any exposure was beyond de minimis, for example.  However, I note that the defenders had included a specific call on the pursuer in answer 4 where he was called upon to aver inter alia “the quantities of asbestos dust given off” when exposed to asbestos.  I agreed with Mr Wilson’s submission to the effect that one of the potential evidential complications in the present case had been the fact that different types of exposure to asbestos had been involved, and that these had not been of the types more commonly involved.  I also had no hesitation in agreeing with his submission that it would have been unsafe for the pursuer’s agents to have assumed that the case would settle.  The fact was that liability was in dispute, with detailed calls having been made on the pursuer.  I likewise had no hesitation in rejecting Mr Watt’s suggestion that the pursuer should have sought to sist the cause on receipt of the defences inter alia for the defenders to conclude investigations.  The court will only allow a cause to be sisted on cause shown.  It is not at all clear to me that a reason such as this being advanced in support of a motion to sist by the pursuer would have found favour.  I am therefore far from satisfied that this would have been a reasonable way for the pursuer to have proceeded.

[32]   I am also satisfied that a complication in the case was the need to advise about the issue of provisional damages and the pursuer being faced with having to give up the right to seek further damages.  I, therefore, preferred the submissions advanced by Mr Wilson in this regard.

[33]   Mr Wilson also reminded me of the apparent lack of argument advanced in the Court of Session in pleural plaques cases to the effect that that forum was not appropriate, or that any award of expenses should be restricted to the sheriff court scale without sanction for counsel.  If it had not been considered by defenders to have been reasonable to employ counsel in pleural plaques cases commenced in the Court of Session even in cases where the sum sued for was under £100,000, the apparent absence of such argument might be thought surprising.  It is difficult to avoid the conclusion that the employment of counsel was not considered to be other than reasonable and, if it was not considered to be other than reasonable in the Court of Session even in such lower value cases, it is not clear why it should be considered otherwise now that such cases are being raised in the sheriff court instead simply because the level of the privative limit has been raised.  I am not persuaded that simply raising the privative limit should necessarily lead to the conclusion that such cases are now any less difficult or complex or should be viewed as being of any less importance or value to a pursuer.  Again, each case simply falls to be considered on its own merits with no presumptions either for or against the employment of counsel.

[34]   In short, I agreed with Mr Wilson’s submission to the effect that the difficulty or complexity of the present proceedings was such as to merit the employment of counsel.  However, insofar as Mr Wilson advanced a submission to the effect that it can be particularly difficult to prove liability where there has been exposure to asbestos in more recent years from the 1980’s onwards, he did not explain why this might be the case.  This was disputed by Mr Watt.  In the absence of any reasoned explanation and argument from Mr Wilson in support of this submission, I did not feel that I could accept it.

[35]   Insofar as Mr Watt founded on the absence of the HMRC schedule, I did not accept that the action was raised prematurely by the pursuer’s agents.  Over two years had elapsed since the diagnosis of the pursuer’s condition in October 2013 and, in my opinion, the pursuer’s agents were well-entitled to raise the action.  If it really had been raised prematurely, there would doubtless have been opposition to more than just the pursuer’s motion for sanction for the employment of counsel.

[36]   As to section 108(3)(a)(ii). I had no reason not to accept what I was told by Mr Wilson about the pursuer having been very anxious and concerned about his condition, his concern having been related to the fact that he had had a number of work colleagues who had also contracted asbestos related conditions and that his understanding was that two of his former colleagues had died as a result.  Mr Watt appeared to be submitting, in effect, that because the pursuer’s anxiety had provided a basis for seeking compensation for the diagnosis of pleural plaques, that had in a sense “exhausted” the issue of anxiety such that it could not also be taken into account by the court in considering matters under section 108(3)(a)(i).  If that was his suggestion, I am not persuaded that it was correct.  No authority was cited by him in support of this proposition and, in my opinion, there would simply be no proper basis for interpreting section 108(3)(a)(ii) in this way in a case such as this where, as it happens, the issue of a pursuer’s anxiety had also been relevant to the question of whether he would be entitled to an award of compensation at all in the principal claim. 

[37]   Mr Wilson accepted that the pursuer’s agents are specialist solicitors.  However, the assessment by them as such specialist solicitors was that counsel should be instructed once defences disputing liability in this case had been lodged and had included the detailed calls to which I have referred.  Mr Wilson explained that counsel who would have been conducting the proof had been instructed for the consultation and to draft the adjustments and valuation of claim.  He went on to explain that counsel are able to give independent advice and that there was now a specialist bar where counsel have particular experience of cases such as the present one.  Asbestos-related litigation was, he submitted, of such importance to a client and there were such potentially complex issues arising that it was regarded by his instructing agents as being appropriate to instruct counsel in seeking to provide the best service to a client unless cases settle at a very early stage.  It is an increasingly specialist area.  In my opinion, in considering the question now of whether the present proceedings were such as to merit the employment of counsel having regard to the difficulty or complexity of the proceedings coupled with the importance or value of the claim to the pursuer, the assessment made by the pursuer’s agents in the present case was a reasonable one. 

[38]   It follows that, having considered the submissions made and the information provided in relation to the motion, I consider, in all the circumstances of the present case, that it is reasonable to sanction the employment of junior counsel.  It also follows, because of the structure of section 108(2), that the court must therefore sanction this.