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I welcome Johann Lamont, the Deputy Minister for Justice, and her team. Paul Cackette is the head of the civil justice division; Lorna Brownlee is the bill team leader; Bob Cockburn is the deputy principal clerk of session of the Scottish Courts Service; and Alison Fraser is from the Scottish Executive. I welcome you all to this final evidence session before we produce our stage 1 report on the bill. We have some questions, as you might expect; however, I understand that the minister wants to make a statement before we begin.
Thank you, convener. I am grateful for the opportunity to speak about the bill and to discuss the issues that have been flagged up in evidence so far. I have come to the bill late, having only recently assumed new responsibilities.
Thank you, minister. I am sure that I speak on behalf of the whole committee in welcoming the statement that you have just made. You will be aware that we were keen to explore the issue, and we are delighted with your response—as, I am sure, are Clydeside Action on Asbestos and all the other witnesses among whom there was consensus on the issue. They will be delighted with the Executive's approach in making the provisions of the bill apply retrospectively from 20 December 2006. The circumstances of these cases clearly require such a precedent to be set, although I appreciate that you will be keen for that precedent not to be followed in every other bill.
I echo the convener's remarks. The minister shows great wisdom in responding to the fact that all the witnesses, on both sides of the argument, appeared to support a change to the bill. I have one minor question, although I do not believe that the issue affects anybody. Why has the date from which the bill's provisions will apply been set as next week rather than today?
You will recognise that retrospection is a delicate matter—something that the convener has highlighted. We thought that it was important to give people notice of the change, so we allowed a week for notice to go out. Once people know about the change, they will have some certainty. We explored every option, including setting the date as today, but that was the advice that we received and it was on that basis that I made the announcement today.
So, in essence, by giving notice, the Executive is protecting itself from a particular kind of legal challenge, the effect of which would be to damage the effect of the bill. None of us wants that to happen.
The same wisdom that you reflected on earlier was involved in reaching a decision on the date.
That is fine. Thank you.
What is the basis on which the Scottish Executive determined to legislate on the issue at this juncture?
The purpose of the bill was to address urgently and specifically a problem that the law of damages caused for mesothelioma sufferers, which is that most of them chose not to pursue their own claim in order that their families might benefit from the larger award that is made after death, as the committee heard in evidence. The conclusion of the consultation was that no comparable condition is on the horizon; a conclusion that was confirmed in oral evidence to the committee.
Minister, you will be aware of the context for our consideration of the bill: the issues that were raised in a petition to the Parliament on how the court system affects mesothelioma sufferers; the Coulsfield report; and the work that the former Justice 2 Committee did in the previous session of the Parliament.
I am very aware of the role of the former Justice 2 Committee and the work that it did on Coulsfield. I am also very aware of the tireless work of campaign groups in bringing the issue to the attention of the Parliament, including through petitioning the Public Petitions Committee, and of the positive responses to that effort. I am aware of the work of MSPs in general in pursuing this issue, and in particular that of the Justice 2 Committee and Des McNulty MSP.
I echo the remarks about your announcement on retrospection. That will help some of those who had decided not to pursue their claims to re-think their decision and make a claim that will lead to an earlier settlement. At least there will be some form of limited justice in the situation.
In general, it seems from the evidence that people have accepted the necessity for the bill and, in so doing, have recognised that the interim damages approach will not satisfy the challenge that has been raised. Before we introduced the bill, we considered the view that it might be unnecessary because of the possibility of interim damages being paid and the sisting of cases until the victim dies. As the committee will be aware, there were only nine awards of interim damages for personal injury cases last year. We took the view that that would not be a reliable solution to the problem faced by mesothelioma sufferers. If it were, the dilemma would not exist.
Indeed. I think that the majority of members will vote to pass the bill, but will you join me in urging the insurance industry to continue in its efforts to speed up the settlement of claims in these and other cases, so that people are not unnecessarily kept hanging on for months, or years in some instances?
We are very keen, particularly given the challenges of time and the circumstances of people with such conditions, for things to be done as speedily as possible, but as robustly as possible. We do not want there to be unnecessary or wilful delay. All those involved have now accepted the need for the bill, which indicates a willingness to take the proposed approach to the challenges that the families concerned are facing.
Could you explain the process by which the Executive determined not to include in the bill a ministerial power of amendment to extend its provisions to other types of disease or personal injury? Some people have suggested that it should include such a power.
I will ask those who were more responsible for the decisions around drafting the bill about that in a moment. We reflected on the comments that were made in response to the consultation about the importance of introducing legislation to address a particular problem that had been identified with a particular solution that would give certainty to those concerned. I do not know whether anyone wishes to comment more specifically about the decision not to take such a power.
We examined the responses to the consultation carefully in relation to that point. As we have said before, there was a mixed response. People had reservations for a number of different reasons. Some people thought that uncertainty would arise. That is possibly the kind of uncertainty that you heard about from Lisa Marie Williams last week. There was also concern that there could be a diversion away from the primary purpose. In the absence of any other relevant condition, the priority was to focus on mesothelioma.
I welcome your remarks this morning, minister. Having listened to the evidence last week, which indicated that there are already claimants who are waiting to find out the result of the scrutiny of the bill, I think that it is to the credit of the Scottish Parliament and the Scottish Executive that you have been able to respond as quickly as you have. People should appreciate that this is the sort of thing on which the Scottish Parliament makes a difference.
As has been said, in introducing the bill so quickly, it was ministers' clear objective to help mesothelioma sufferers and their families. However, the need to take that action pointed up the fact that there are areas of the law of damages that should be reviewed. The evolution of the law relating to damages recoverable in respect of deaths resulting from personal injury and recoverable by relatives of an injured person has resulted in complex provisions that, together with practice and procedures, can have unintended consequences. Therefore, we have asked the Scottish Law Commission to undertake a review of the 1976 act and the relevant elements of the Administration of Justice Act 1982, taking into account underlying practices and procedures.
Have you placed any timescale on that consideration?
The Scottish Law Commission will report in 2008 and we—or, I should say, the next Administration—will then respond to its report.
Are you quite comfortable with dealing with the issues that are connected to mesothelioma separately from what will be a fairly wide-ranging review?
Absolutely. We recognise that there is a particular problem. A particular solution for the sufferers has been identified and supported, but it flags up the fact that there are other issues. I do not have a view on the range of those issues or the solutions to them, but the Scottish Law Commission will afford the Executive the opportunity for further consideration of those matters in due time.
When the Scottish Executive officials gave evidence, they seemed to envisage that the bill would trigger two actions—one for a sufferer's damages claim and one for their relatives' claim. However, Frank Maguire, who represents sufferers and who gave evidence last week, seemed to think that, in certain circumstances, only one action would be necessary. Will you comment on that?
I will make a couple of comments and then the officials will expand on them. We are aware that the issue was explored last week in committee. In the financial memorandum, we said that two actions may be raised instead of one in future because, if the victim is able to settle before death, the relatives will raise their own action. At present, if the victim does not settle, there is a single claim by the executor and relatives.
It may beneficial if I add a few words to that, as I think that it was my evidence from two weeks ago that referred initially to the idea that two actions could be needed. The thinking behind that was that the way in which the bill resolves the dilemma that victims face, thereby allowing them to raise proceedings while they are still alive, gives rise to a slight mismatch between the victim's claim, which would be raised in their lifetime, and the relatives' claim, which would arise after and only because of the victim's death. It seemed to me that those were two mutually exclusive concepts and that it was difficult to understand how the initial action could include a claim by the relatives for damages that could not arise until a later date.
So it will depend on the circumstances. If the sufferer managed to make their claim before death, that would be the first action and the second action would be triggered on their death when the relatives claimed. However, if a period of time passed while they were in pursuit of the claim or they did not quite manage it, the claim could be dealt with in one action by the executor, who would act on the information that they held about the beneficiaries. Even then, however, a little discretion would need to be left to the court because the information might have changed substantially—for example, the beneficiaries might have changed because someone had died in the interim, but that information might not have been relayed. Could that be dealt with quite quickly or would it be left to the court's discretion?
In practice, that is what happens when a victim dies before the case is settled. My understanding is that the executor takes forward the victim's case and the relatives' claim would arise at that point. In practice, the claims are rolled together into the continuation of a single case.
That is helpful.
In oral evidence last week, the insurance representatives did not raise any concerns about costs. I do not know whether there has been a discussion about an impact on premiums.
I think that the concern was more about the issue of certainty, which you resolved today when you stated that the provisions will kick in on 20 December. You have given quite a bit of notice, which is entirely reasonable. Given the evidence that we heard last week, I think that the insurance companies will be satisfied with that.
That is my expectation, given what was said last week. Through the bill and my statement this morning, we seek to provide the certainty that everybody wants.
Do you agree that some of the concerns that the insurance industry expressed earlier about costs should be more than offset by modern working practices, which mean that we will not have huge numbers of mesothelioma cases in future? Many cases arose from practices in the shipbuilding industry.
As I said at the beginning, the issue is not just about money. It is about justice and the recognition and acknowledgement of fault. I do not pretend to know a great deal about it, but poor working practices led to significant consequences for people. I am confident that industry is now aware of those consequences and I trust that those who are involved in it recognise the significance of health and safety, not because of potential financial consequences later on but simply in the interests of a good society. People should not have to live with the intolerable consequences of poor working practices earlier in their lives.
I return to the question of the two separate actions, which we need to try to resolve, although we may understand how it will be resolved in practice. As you said, we heard from Frank Maguire, whose view is that the matter is for the courts to sort, perhaps by court rules or an act of sederunt. I am not happy to leave the situation like that. If that is how the issue is to be resolved, we should agree on that and leave it to the courts.
Yes. In practice, all the cases are taken at the Court of Session.
So solicitors such as Thompsons Solicitors instruct a civil advocate to represent their interests at the Court of Session.
Yes.
When a victim settles a case that is to go to the Court of Session, the question is whether the case is settled before it reaches court. I am thinking of cases that go to court. Solicitors would instruct a solicitor advocate or advocate to represent the victim. They would book a court for that and a fee would be charged for that. Later, the relatives could come along and make a claim, for which a solicitor advocate or advocate would be instructed and a court would be booked, unless the case was settled out of court, although even if that happened, administration work would still have to be done. Is it possible to achieve that in a single action or would the agreement of all the solicitors and the Faculty of Advocates be needed to achieve that?
I do not know whether Bob Cockburn wants to say anything about the court processes. In effect, for the reasons that led me to think that two actions could be needed, resolution of the dispute would need to take place in two phases, because the causes of action arise at slightly different times. Whether that would necessarily give rise to significant extra costs might depend on the practice that develops.
I doubt whether I can usefully add much to what Paul Cackette said. Your assessment is correct, convener. The second claim will involve some process. It will need to be set out and responded to in writing—that assumes that it needs to go to court at all. Some process will follow that. The two claims will be similar.
We need to consider this further. We might go back to some of the witnesses for a bit more detail. It might well be that if the court rules allowed the action to be sisted so that those involved in the second action could at least get access to the original papers, then the rest of it might be down to the arrangement that a solicitor has with their representative in the Court of Session.
The key thing is to ensure that nothing in the court rules will be able to stop that. It is that way round rather than the other way round.
That is helpful.
As I have said, we intend to report back to the committee on our considerations and we will do that as soon as we can.
That is helpful.
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