Petition
Asbestos (PE336)
Agenda item 2 is consideration of petition PE336 by Frank Maguire, on behalf of Clydeside Action on Asbestos. I welcome Brian Fitzpatrick, Des McNulty and Duncan McNeil to the committee. I also welcome members of Clydeside Action on Asbestos and the Clydebank Asbestos Group, who are in the gallery.
I remind members of where we are with the petition. This is the seventh time that we have had the opportunity to discuss it. Members will recall that, when we first received it in May 2001, we thought that it was of the highest importance. We have given the petition a high level of commitment since then. It has been on our committee agendas and we have worked on it in the background at various meetings.
Members will recall that we lost our reporters—Mary Mulligan and Margaret Ewing—when they moved on. Since then, because of the petition's importance, Bill Aitken, who is the committee's deputy convener, and I, as convener, have worked on it.
During the summer, Bill Aitken and I attended Lord Mackay's by-order roll court to observe what was happening. That procedure is a direct result of our correspondence with Lord Cullen on speeding up the process. Today, members will have the chance to discuss what work needs to be done. The issue is complex and members have many papers in front of them, which I hope they have had the opportunity to read.
For the committee's benefit, I will crystallise the issues on which we need to make progress today. Members must consider whether they wish to take more evidence. If the committee wishes to do so, we should consider how evidence should be taken. If we want to ensure that our deliberations are completed in the shortest period—I think that we do—we may take the view that we have enough evidence and that we need to do something else to progress matters. Other options in paper J2/02/35/1 include setting up a sub-committee or incorporating evidence taking into the main committee's business.
I have read all the submissions in detail. I do not believe that the conclusions in Lord Cullen's letter would lead to a fast enough process. The timetabling that we were offered as a result of Lord Coulsfield's report has already been delayed—implementation has been delayed from January until April, which is a cause for concern.
Another concern is that, although the new timetabling may be faster—there is some dispute about that—even if it were accepted as it stands, Lord Mackay would no longer fulfil his role. The committee had wanted to pursue the principle of the involvement of the judiciary. We were convinced by Frank Maguire's argument that the intervention of a judge would be extremely helpful and we must also consider that matter.
It would be helpful to consider the appointment of an adviser to pore through all the correspondence and written submissions that we have received rather than have a further evidence-taking session. The difficulty with appointing advisers is the length of time that that takes. However, appointing an adviser would certainly cut down the need to take more evidence.
Having considered the issues and all the papers that are before us, members must come to a firm decision on the definitive point of our report. We have made progress, but should we go further? If so, what measures should we take? I suggest that we should aim to make suggestions to the Executive by December at the latest. We should consider Lord Cullen's point that a procedure that involves heavier judicial intervention—as in the commercial court—will require one more judge. We should consider making a case to the Executive for an additional judge, which would require a regulation to increase the number of judges from 32 to 33.
I have given a brief summary of the work that we have done. I want members now to focus on the action that the committee should take. We must try to stick to a timetable and be firm about where we want to go.
It is important to stress that action has been on-going on the matter, which is of great concern to the committee and which is complex and difficult. It strikes me that, although there is no possibility of a quick fix, we are quite far down the road. We can reasonably expect to have an answer by the end of the year, after which we can lean on the Executive to take certain steps. I believe, from my observation of it, that Lord Mackay's court provides problems as well as a solution. I was disturbed that cases did not seem to be prepared to the extent that I thought necessary. That problem was not exclusive to those acting on behalf of defenders. The Coulsfield recommendations will go some way towards resolving matters, but they will not be implemented properly until April 2003, which is unsatisfactory for the petitioners.
Bearing in mind the complexity of the situation, the committee must ensure that it is properly advised and should, as a matter of urgency, appoint either counsel or a solicitor to help us through the difficulty. I have ideas on how the issue might be pursued, but the technicalities might mean that those ideas are not practicable within the existing court set-up. We must appoint an appropriate adviser immediately and get the matter moving. We should fix the end of the year as the deadline for resolving the matter.
I will offer a further piece of information. One of the issues that arose from our visit to Lord Mackay's court was that, when cases involve a dispute about, or a need to confirm, a person's workplace or employer, it can take up to six months for the Contributions Agency to confirm the details. I wrote to the Inland Revenue on behalf of the committee and sent a copy of the letter to Helen Liddell, the Secretary of State for Scotland. Technically, the matter is reserved, but in this case we were justified in asking whether the process could be speeded up. Lord Mackay suggested that that might assist in some cases.
If no other committee members wish to speak at this point, I will call the other members who are in attendance.
I advocate strongly that we do whatever we can to get the matter into the Executive's hands as speedily as possible. The committee has gathered a substantial amount of evidence and taken on board a lot of information, both written and oral. That information and the committee's point of view must be conveyed clearly to the Executive so that action can follow. That is the top priority.
The committee needs to discuss the speediest way of achieving that aim. Given the limited time scale in respect of evidence gathering, it is incumbent on the committee to resolve that part of the issue and get the matter into the hands of the Executive.
To assist the committee, I undertook some research into the way in which asbestos cases are handled in other jurisdictions. I have produced a short note on the handling of such cases in New South Wales, Australia, where they are dealt with by a special tribunal that is set up under the procedural rules of the New South Wales Supreme Court. Six judges are appointed to hear cases and each case is managed by an experienced judge in order to speed up its determination.
Although the New South Wales system is different from ours and is based on a no-fault compensation system rather than on civil actions against employers or insurers, two lessons can be learned from it. The first is case prioritisation and the time scales within which such cases are dealt with. The second is case management. When a statement of claim is first submitted, the case is given a category, which is dependent on the state of health of the plaintiff. Urgent cases, which include all those involving mesothelioma or patients who are in extremely poor health, are placed in a special category under which they are heard within two weeks.
There is a substantial gulf between the system that operates in New South Wales and what happens in Scotland. In New South Wales, priority cases in which the complainant is seriously ill but death is not imminent are allocated on the basis of a statement about the state of health of the individual. Those cases are normally heard within nine months, which is still significantly quicker than is the case in Scotland. Ordinary cases, in which the patient is suffering from a non-life threatening illness, are also dealt with more speedily than is the case in Scotland. The process of identifying priorities in a system that bases categories on the state of health of the individual is another attribute that I would like to be adopted in Scotland.
The petitioners also highlighted the issue of case management. In New South Wales, the judge has the power to direct action by all parties in preparation for the case to be heard. Members will find in the paper a list of the orders that the judge may make. Those orders are designed to expedite the progress of the case. When the judge has completed the orders and directions, a date for the hearing is allocated. That allows the hearing to progress more speedily.
That example shows that, when the political will exists and resources are made available, cases can be dealt with in a way that is appropriate to the individuals involved and that does not distort the entire judicial system. If such a system can operate in New South Wales, I cannot see why something similar cannot be done in Scotland. That would speed up the way in which cases are dealt with. I hope that the committee will highlight those issues.
The matter is one for the committee to determine. I will make a number of observations, but first I refer members to my entry in the register of interests and declare my membership of the Faculty of Advocates. I am conscious that the Cullen review and the work that was undertaken by Lord Coulsfield are getting bound up in the more general and lengthy debate about reform of civil litigation. I urge the committee to take that point into consideration.
The issue under debate is not only one of dilatoriness. Serious issues arise about the nature of litigation and what it is to be a litigant, what is to be expected of parties and how litigation is to be conducted. It is well and good that the debate about civil litigation should be heard.
A number of events have interrupted the committee's intention to deal with the matter expeditiously, not least of which was the House of Lords litigation. The convener made a useful suggestion of exploring the possibility of a short piece of work by special advisers. Without wishing to appear impertinent, I will make a suggestion in that regard.
In relation to claims handling and how cases are processed, it is important that a solicitor who is experienced in handling asbestos-related cases should handle the issue. The area has always been a specialist one, although that has not always been recognised by the legal profession. However, the great bulk of the cases are also litigated in the Court of Session—I will come back to the committee at another time in relation to what I think is a rather unusual submission from the Forum of Insurance Lawyers—and will continue to be litigated there. I endorse that. We need to have the cases streamlined and it helps that they are dealt with in a centre that has a body of expertise.
I suggest that the committee contact an advocate who is experienced in the handling of asbestosis cases, particularly with regard to the presentation and the identification of the issues. Having not one but two advocates might create a useful synergy. I suspect that organisations such as FOIL will have a view, which could be dealt with by ensuring that the special advisers are open and transparent in what they do and who they do it with.
Convener, I am delighted that you and Bill Aitken have stressed that progress should be made. Apart from the work of the committee, there is a substantial body of evidence. As a solicitor, advocate and constituency representative, I have had the honour to act for many claimants pursuing damages actions for asbestos-related cases. All the cases place a tremendous strain on the claimants, their families and their legal advisers and representatives. When I represented claimants, I was conscious of the fact that, for many of them, the clock was ticking fast. That is not unique to asbestosis cases, but it is a factor that demands urgency in the response.
I have been in the legal profession since the mid-1980s and know that people have been urging action on this front since then. I have been involved in too many cases, both as solicitor and counsel, where I started out acting for the claimant and ended up acting for the executors, who were usually the widow and family, including children.
Not that long ago, there was a disgraceful period in Scotland's history when insurance companies and their representatives deliberately extended the length of litigation in order to exhaust the claimant's right to solatium. That situation has been addressed only by legislative action, despite the courts deprecating such behaviour over many years. I urge the committee to bear in mind the fact that, although the courts promised to get organised on that front, they were unable to do so without direct legislative intervention and advocacy on the part of various people.
There are ways of shortening the length of time that is involved. In most cases, there is a lengthy pre-litigation correspondence. The traditional position in Scotland is that you are on your own as a pursuer: you must prove your case and the defender is entitled to sit back and say that you have not established various key facts in relation to it—even if they know the key facts, they will not tell you. If justice is about finding out the issues that lead to a just resolution rather than simply being a game, we need to stop that happening. There are long-standing dicta, such as those of Lord Morrison in Docherty's curator bonis, that deprecate the behaviour of defenders who simply sit back and say that the pursuer must establish the key facts.
On the point that was made about trying to secure an additional judge either before appointment or in the course of early appointment, I suggest that that judge might consider using the commercial cause abbreviated procedure, which might reasonably claim to be the godmother or godfather of Lord Mackay's court. Carrots and sticks might be needed to incentivise parties on both sides in relation to disclosure of information and focusing on the issues. Des McNulty touched on that.
It is not on for an insurer, who knows that he employed X, Y and Z, to say, "You have to go to the Contributions Agency," which might say that its records are patchy. At one stage, I almost became an historical archivist of the relationships between shipbuilding companies on the Clyde. I can tell you that there were lots of ups and downs, but it is not on for insurers to say that they do not know what the interrelationships and connections were between shipbuilding companies on the Clyde. That is playing a game rather than delivering justice.
I would support the committee were it to suggest that early work be undertaken on a modified version of the abbreviated procedure in the commercial court. We cannot allow the situation to continue whereby ordinary citizens' experience of the supreme courts is that they are substantially delayed in the process of litigation while a Mercedes-Benz form of litigation is going on in the commercial courts in relation to matters that some people might think are not as significant, even though more substantial sums of money might be involved.
On support for the appointment of an additional judge, we are at the highly auspicious moment of looking at level 3 spend as we roll out the comprehensive spending review. I urge on the committee the view that resources may need to be found in order to secure an additional judge.
We should not pretend that these cases are in our industrial past. The incidence of asbestos exposure is live and it is rising. We must deal with that. The current situation is unacceptable. I endorse the committee's view that the status quo cannot be maintained.
I will be brief. We value the opportunity to come to the committee and we are grateful to the committee for the time that it has devoted to the issue. We know that this morning the committee is once again busy.
I do not believe that the implementation of the Coulsfield working party proposals represents a proportionate use of judicial time and resources. The life expectancy of mesothelioma victims and the substantial quality-of-life issues that face them demand greater urgency. I do not believe that the proposals overcome the obstacles that those victims have faced for too long in achieving a hearing or a settlement.
I am pleased to hear that the committee will decide whether further evidence taking is required. I hope for the sake of speed that the committee will decide that that is not necessary and that the reports and submissions that it already has will allow it to appoint advisers, as my colleague Brian Fitzpatrick suggested. There is a clear need to get the matter moving, to get it to the Executive and to provide the resources that will ensure justice for asbestos victims, for which they have waited too long.
I thank all three members for coming along. Your comments have been very useful. I do not think that there is any disagreement with anything that has been said.
I have the job of summarising the committee's view on the matter, which I shall try to do. I think that the committee is agreed that the response that we have had on the asbestos cases, the urgency of which has been highlighted many times, has been inadequate. Although some progress has been made, it does not meet the expectations that the committee had at the beginning of the process. If we are agreed on that, we can move on.
The next question is whether the committee wants to take further evidence or whether we are satisfied that we have enough information on which to make further decisions.
We have sufficient information.
I agree that we have sufficient information. We now need to take on someone to pull the information together. When the adviser's work is completed, we can make a judgment about whether we need further information to enable us to suggest solutions or whether we have concrete suggestions about how to move the matter on and take it to the Executive.
The issue has been running for a long time and people expect us to do something concrete to give them hope that we can resolve things speedily. I suggest that we appoint an adviser to collate all the evidence. If we then decide that further evidence is needed, we could consider how to gather it.
Does the committee agree that we have enough evidence to allow us to move to the next stage?
Members indicated agreement.
We must now consider the substance of the report and whether we should incorporate Des McNulty's paper. It seems that we agree that our report should say that because of the urgency of the asbestos cases—and of the mesothelioma cases in particular—we need a speedier system with heavy judicial intervention. We keep coming back to that point. If I picked up Brian Fitzpatrick correctly, I understand that the involvement of a judge will mean that paperwork can be cut through when there is a constant denial of basic information. Lord Mackay has been involved at the preliminary stages. A judge will be able to say, "You must know whether this person worked for you," or, "You must know whether you are John Brown Engineering." If the committee accepts that the principle of judicial intervention should be the basis of any new system, we will be able to focus our report. Does anyone dissent from that view?
No.
Obviously, this is the first chance that we have had to consider the system in New South Wales. I imagine that we will incorporate Des McNulty's paper into our principles as we consider how to make progress.
I would welcome that. We need to embrace the two principles of, on the one hand, case prioritisation and timetable setting and, on the other, case management. The adviser could help us with the technicalities of proceeding within the Scottish justice system.
That is agreed. Advisers are important. We may lack technical knowledge and advisers can help us to understand things and to speed up our thought processes. We can rely on them when we are not sure what to do on a particular issue. Advisers also lend independence to the process.
Appointing advisers can be a lengthy process and we have to consider whom we want. Brian Fitzpatrick suggested that appropriate advisers would be someone from the Faculty of Advocates and someone from the Law Society of Scotland. In other words, there should be someone to represent the solicitors' point of view of the process and someone who has dealt with both sides of the issue, perhaps from the Faculty of Advocates.
We should bear in mind the fact that we want to proceed speedily; having an adviser seems to be our best way of doing that. Does the committee agree that we should trawl for advisers? In the process, everyone can nominate individuals and the committee will then choose. We could approach the Association of Personal Injury Lawyers to ask for a nomination of a solicitor, or would members prefer to receive a paper at our next meeting so that we can select the advisers whom we prefer and then approach them?
Our next meeting is in three weeks' time.
Therefore, we propose to suggest potential advisers to the committee at our next meeting. Obviously, we will have to approach them thereafter. The committee will state its preference and we will take it from there.
Does the committee agree that a focus of the report should be whether we ask the Executive to appoint at least one additional judge?
There is a facility for appointing temporary judges. I understand that several appointments were made a couple of weeks ago. Therefore, there is a facility to divert a judge from the pool to deal with the asbestos cases. However, it would be useful to have an additional judge to deal with those matters.
We must also clarify the powers of the Justice 2 Committee and the Parliament. Of course, the committee has no powers to do anything other than make recommendations and pressure Parliament and the Executive. The Executive's powers relate to the appointment of judges and deciding the number of judges, which would be done by order. The rules of court are under the jurisdiction of the judges, over whom we have no direct powers. However, as Frank Maguire points out, the Court of Session Act 1988 gives judges their powers.
Pardon my ignorance, but do we recommend the appointment of additional judges to the minister and then he makes the appointments? Do the appointments have to be referred to Parliament? Can Jim Wallace and Richard Simpson sit down for five minutes and decide those appointments?
As you will remember, the committee agreed previously that, by regulation, there would be 32 judges. Therefore, another regulation for the appointment of additional judges would come before this committee or the Justice 1 Committee. We would then recommend that to Parliament by a negative or positive resolution—I can never remember which. I am advised that it is usually done by negative resolution. Ultimately, Parliament gets to decide. However, the main debate on the matter would come through the Justice 2 Committee.
I have two suggestions. First, if there is clear information that an additional judge is required to meet what the committee sets out to do, the two justice committees might consider making a recommendation on that in their stage 2 response to the Finance Committee on the budget.
My second suggestion is on how we might engage the Executive more quickly. The Executive might be receptive to an approach from the committee to appoint advisers jointly to consider how the issue might be taken forward. The Executive might not be receptive to such an approach, but a letter to the minister might draw the Executive into the process of examining how what the committee wants could best be achieved. I am a member of a committee that successfully managed to do something similar. I suggest that approach as a variant on the convener's suggestion.
I think that your first point, in relation to stage 2 of the budget process, is a good one. We are discussing the spending review and what the justice department will be spending its money on, so we ought to alert the Executive that we might want funding for at least one additional judge. I do not regard doing that as a problem, if no one else does. The second issue is whether we approach the Executive about the joint appointment of an adviser. I think that we need to discuss that suggestion.
Might I suggest that in the early stages consideration be given to having dialogue, either through the clerk or the advisers, with the Lord President about the deployment of resources within the supreme courts? There are other issues to do with how the business of those courts is organised and prioritised. When there was a will to do so, we moved quickly towards the introduction of the commercial court.
I heard what Bill Aitken said about temporary judges. I do not want to be offensive about them, because I know that many able people are appointed as temporary judges. However, I would be loth, given the priority and importance that we attach to the asbestos cases, to suggest an ad hoc measure.
Temporary judges exist to fill the gaps that sometimes open up between business and the availability of judges. That can happen particularly in the outer house because the judges are required to give priority to High Court business. Rather than using temporary judges who could come from a variety of backgrounds, we need nominated judges who deal with commercial court cases. The Lord President would have a key role in identifying which judges have the expertise.
This will probably win me no friends in the Faculty of Advocates, but I caution the committee not to commission the faculty to nominate an advocate. The advocate should be one who is experienced in dealing with asbestos-related diseases. The point that I made about the wider argument over civil litigation necessarily impinges on this area. I should not dare to suggest that some in the faculty have a view on that, but I will make that suggestion.
It is a sensible suggestion that any adviser whom we appoint should have that particular experience.
Returning briefly to Des McNulty's second suggestion, I think that at this stage we need to make a distinction between the committee and the Executive. Having said that, I agree that it would be useful to alert the Executive about the work that we are doing on the issue—if that is what Des McNulty is suggesting. I understand that there have been meetings on the issue between the members and the deputy minister, so the Executive will already have an interest and may share our view. The committee would be happy to alert the Executive to the work, which is the right thing to do. In addition, we will make our views known to Lord Cullen. If he takes on board some of the points that we make, that will be useful and further progress can be made.
Lastly, provided that the timetable goes according to plan, the committee has the option of seeking a debate in Parliament. In that way, we could at least establish Parliament's view on the matter, albeit that not all of the matter is Parliament's prerogative to decide. As Duncan McNeil will know from his role in the Parliamentary Bureau, there is a lot of competition for parliamentary time for committee debates. At some time, we also want to get a committee debate on our inquiry into the Crown Office and Procurator Fiscal Service. However, I lay that proposal on the table as a possibility. Getting Parliament to discuss and take a view on the matter could be one way of influencing the process. Before that, we need to get a bit further forward in coming to a definitive view on what we think needs to happen.
I seek comments from members about the timetable for a final definitive report.
Clearly, there is a serious degree of urgency about the matter. We were not able to process the issue as quickly as we would have liked because we were waiting for other people. Having now received all the responses that we are likely to get, we should set ourselves the target of resolving the issue by the end of the year.
Does anyone dissent from that view?
No.
As I explained at the beginning, our having had a variety of reporters on the issue has allowed us to generate correspondence and hold meetings with people. Bill Aitken and I have been fulfilling that role over the past few months. Is the committee content to allow us to continue in that role? If any member has a particular interest, they would be welcome to take over the role.
Is Alasdair Morrison nominating himself?
No. Continue as you were, convener.
Those are all the decisions that the committee can take at present, but I think that we have moved the issue on quite far.
Let me summarise what we have agreed by taking members through it from the beginning. We have agreed a timetable of the end of the year. We will focus on judicial intervention as the principle of the system. We want a system that will address asbestos victims. Des McNulty's paper looks at the system in New South Wales, which identifies urgent cases, priority cases and ordinary cases. We will appoint two advisers. Members will have some information the next time that we meet. After selecting the advisers, we will use the information that we have received in evidence. We will seek to report in December, with a view to asking the Executive for the resources that we believe are needed to implement a different system. We will notify the parties—Lord Cullen, the Executive and the petitioners—accordingly. They will want to comment on our decisions.
As there are no other issues that have not been covered, I thank Des McNulty, Duncan McNeil and Brian Fitzpatrick for taking the time to share their views with the committee. That has been extremely helpful.