Petition
Agenda item 5 is petition PE336 from Frank Maguire on civil justice for asbestos victims. Members will note that quite a few background papers have been provided on the petition, which the Public Petitions Committee has discussed. Our clerk has produced a background note, Frank Maguire has produced a note, an executive summary is available and so is a note from the Association of Personal Injury Lawyers—APIL—which wrote separately, in the knowledge that we would discuss the petition.
The petition raises several detailed and technical matters, mainly in relation to how asbestos victims have been treated in the court system. Attention has been drawn to some of the court procedures—the suggestion is that the hearing of cases has been unnecessarily delayed. Other issues are raised, which we can draw out if necessary.
Do members have any comments on the petition?
The petition is interesting. Delays occur not only in cases concerning asbestosis victims, but in many reparation actions. Issues about what one might loosely call abuse of process are raised. The court rules deal with abuse of process, but the petition raises issues not about whether the court rules should be altered—although that may be an issue and the rules have been under review—but about whether the judiciary should have additional guidelines on the behaviour of some defenders.
The petition talks about cases in which skeletal defences were provided almost up to the door of the proof. An award of expenses can be made against defenders who then want to make a huge amendment to bring their case up to par, but the petition suggests that the proof goes ahead nevertheless and that a decree is not obtained. The extension of the court process over the years penalises the pursuer, or the pursuer's family if the pursuer predeceases the hearing of the case.
The petition raises serious issues and is interesting. I would not choose between the options that are offered in the clerk's note; I would choose to do both. We should write to the Lord President, the Scottish Law Commission and the Scottish Legal Action Group to find out whether they corroborate the views expressed in the petition.
I support what Christine Grahame says. If difficulties are being flagged up, we should try to deal with them. Any delay is detrimental to the pursuer, particularly in such cases. If the option exists for us to consider the issues, I would support our taking both the courses of action suggested on the second page of the clerk's note.
There are two specific issues, one arising from the petition and one relating to the correspondence from the Association of Personal Injury Lawyers.
Frank Maguire, on behalf of victims of asbestos, seems to be saying that, in his experience, the court procedures—the issues and exchanges between the various parties—appear to cause some of the delay. In his view, the nub of the matter is that the proper exchange of information about the areas of dispute does not take place before a case comes to court. There is a procedure for that, but if a pursuer alleges that there has been negligence on the part of the defender, all the defender need say is, "Denied, denied, denied." As Peter Beaton from the Scottish Executive justice department points out, the principle of the Scottish legal system is that it is up to the pursuer to make his or her case. The matter has been raised with me on two or three occasions and I think that it is worth considering.
The issue raised with us by the APIL concerns the Prescription and Limitation (Scotland) Act 1973. The association says that judicial interpretation of the act makes it difficult for victims to make their case within three years because of the stipulation that a claim must be brought
"no later than three years after it was ‘reasonably practicable' for him to have known about the existence of the disease".
Recently, the interpretation of that in the Scottish courts seems to have been very strict. Some victims are missing out because, by the time they get to their doctors and are diagnosed, it is after the three-year period.
If we were willing to examine the matter further, we would need to consider a range of issues. We should not stop at the court procedures.
If defences are only skeletal, cases could be thrown out at procedure roll, which is a debate on the pleadings and on relevancy and specification. There are procedures—people must not think that they can get away with something and that there is nothing there to block that. Usually, the expenses will land on the defender for not having opened up the case and answered it.
There is a genuine question about the tactics of the insurance companies that fund the defenders—taking cases right up to the wire in reparation actions and then settling. Every reparation lawyer with a reasonable case knows that a settlement will usually be reached on the morning of the proof.
There is, I believe, another procedure, whereby liability is admitted, but I am not sure, so perhaps the clerks could advise. Under that procedure, only the quantum—the amount of damages—is considered, rather than whether there has been negligence and loss.
We are talking about the tactics that are employed—using the rules in a certain way—and about judges failing to come down on defenders for what is really an abuse of process. If we want to go into the matter of the prescription and limitation of cases, we must not restrict our work to cases related to asbestosis. The same thing must happen in other cases. Matters may arise further down the road with CJD—there may be problems with people who develop the condition 10 or 15 years from now.
The question could be much bigger. I would rather keep prescription and limitation separate from the specific matter of how the court rules operate and whether there is a requirement to change the rules or for direction from the Lord President on how the interpretation of abuse of process operates.
The other issue that the petition highlights is the length of time that is required for the court hearing—in addition to the time required for the case to get into the court system—in cases in which the parties proceed to court. Civil cases are not a priority at the moment, so there are further delays.
I have raised with the Minister for Justice, Jim Wallace, the fact that we are not always reaching the target, particularly for reparation cases. Whether we examine both issues now—prescription and limitation and how the court rules operate—is a question for the committee, but I think that both are worthy of attention in the contexts of court procedures and interpretation, particularly if APIL's assumption that victims are losing out due to the three-year requirement is correct.
I am happy to go along with the options that have been suggested: we should
"write to the Lord President, as Chairman of the Rules Council"—
particularly as a report is, I believe, due from Lord Coulsfield, so it is a live matter, which it would be relevant to feed into—and
"write to the Scottish Law Commission and the Scottish Legal Action Group inviting comments on the issues raised by the petition."
We would then find out what those organisations have to say. We could then decide how deeply we wish to pursue the matter.
Is it competent—I do not know the answer to this—to write to the Lord President to ask whether he wishes to comment on the issues that are raised in the petition? According to the clerk's note, that is not the question that we are asking him.
I think you are right, Christine. When we ask him about the time scales for consideration of the report by the rules council, we should also ask him to address the points raised by the petition.
Are both the suggested points of action agreed?
Members indicated agreement.
That brings us to the end of the public part of the meeting, although the meeting will continue in private for item 6—discussion of the draft stage 1 report on the general principles of the International Criminal Court (Scotland) Bill.
Meeting continued in private until 12:52.