Justice 2 Committee, 17 Apr 2002

Meeting date: Wednesday, April 17, 2002

Official Report 151KB pdf

---

Petition

---

Asbestos (PE336)

Petition PE336 has become a regular feature of our agendas. Members will recall that, at our meeting on 27 March, we agreed to consider at today's meeting the evidence and the next steps. Considerable attention has been paid to the petition and I am grateful for committee members' input on the subject. We receive many petitions, but this petition is of the highest priority. If possible, we should focus on where we wish to go with it

Members have received helpful papers on the petition. I ask them to note a slight correction to paragraph 5 of the clerk's note, which should say that Lord Coulsfield decided against recommending a high degree of judicial case management.

The note shows that the petition raises many detailed issues. We will discuss the matter, but I suggest that, in the interests of speeding any action that the committee wishes to be taken, we might wish to prioritise the issues that Frank Maguire highlighted—the failings of the Scottish pleadings system and the need for more judicial intervention.

When we questioned Frank Maguire, I tried to find out what one action ought to be taken now. We know that several things need to be done, particularly in relation to Frank Maguire's proposed bill on the Fairchild decision. Other issues, such as the lack of a jury, have been raised and the Association of Personal Injury Lawyers has written to us about the time bar.

All those issues are important, but I suggest that we focus on whether the framework of the commercial court rules could be used, which I understand would require an act of sederunt. I am not clear about what that means. I am not sure in whose power producing such an act would be, or whether we have any power to do anything. Unless we have an explanation to the contrary, it seems that that is the path we should pursue, as it would cut down the opportunity for a defender to delay proceedings and give irrelevant answers.

There are a number of ways in which we could approach the difficulty, but they all have their downside. We must seek to implement changes as speedily and effectively as possible. Having given the matter considerable thought—we are all agreed that it is important—the only way in which we can take expedient action is through an act of sederunt. We need to establish the procedures for doing that and to obtain legal confirmation from those who are better qualified than we are that that is the appropriate way forward. The bill proposed by Frank Maguire would be of value, but only in some cases. We are seeking to ensure that all such cases are resolved with greater expediency than at present.

I recommend strongly that we address the issue through an act of sederunt, because that could bring about a comparatively early resolution.

I welcome Des McNulty to the meeting.

I add my support to everything that Bill Aitken has said. I, too, have considered the issue in depth—although with less background knowledge—and I think that an act of sederunt is the appropriate and most straightforward course of action.

I support the line that the committee seems to be taking. I would like there to be an arrangement analogous to that of the commercial courts, so that cases get similar priority, similar time scales apply and there is a similar system of judicial management. Those are the main objectives that I have in mind.

In the context of any correspondence with the judicial authorities, it might be useful to indicate that the committee is minded to move along the lines of introducing an act of sederunt, with the objective of meeting speedier time scales. That might spark some reaction on the authorities' side, which might be helpful to some of the complainants in asbestos cases. I am happy with that as long as it takes things forward. The complainants have waited a long time and many of them do not have a long time left, because of the onset of the disease. We have a responsibility to ensure that the legal system has no barriers to prevent them from accessing the money that is there for them.

We appear to be of one mind on this, so I wonder whether we can find a way of communicating to the insurance companies our determination to deal with the issue, if necessary by proceeding with an act of sederunt. Perhaps the clerks can help us with that. The insurance companies are advising the defenders and, from what we have heard so far, the insurance companies are the source of the difficulties. If we can communicate our determination, the companies might have an opportunity, in early course, to put their own house in order. There would be no harm in our doing so. Perhaps, with the threat of legislation hanging over them, the companies will see their way to taking early action.

I think that it could be assumed, without our having to communicate with the companies directly, that they will shortly be aware of this decision.

Yes, but the point that I am making is that we should be seen to be communicating actively with the companies. Doing so, rather than relying on their reading the record of our proceedings, would send a clear message.

Point taken. I will ask the clerks to give us some guidance on what Stewart Stevenson's suggestion of an act of sederunt would entail.

Acts of sederunt are matters for the Court of Session Rules Council, which the Lord President chairs. It would be for that council to decide whether amendments were to be proposed. We would therefore need to continue approaching the Lord President as we have been doing. The committee itself could not directly initiate the process.

Do members agree with the suggestion that has been made on the action to be taken on this petition? I will go on to talk about the next steps, but I am keen for members to decide on their priorities.

I agree absolutely with the suggestion. There is clear consensus on the way that we want to proceed. We appreciate that the final decision will not be ours and will rest with the Court of Session. However, I feel that the court would acknowledge our concerns and am optimistic that it would take our ideas on board.

Do members wish to hear from other parties? I would have thought that we might want to hear from the relevant person who deals with Court of Session rules. I am not clear about who would be the person to ask, but if members agree we could investigate.

Have we had any unofficial contact with the rules council on what the attitude might be if we were to push for certain measures to be taken? Given that the decision is outwith our control, have we had any indication whether the council would be receptive?

We have had a lot of correspondence with the Lord President. We wanted to clarify Lord Coulsfield's recommendations. We took some time to match up those recommendations with the issues that are raised in the petition—members received a full report on that in their previous set of papers.

We have been trying to find our way through a complex issue and find out what would be the point of making the suggested change. The decision we have come to is that, having heard from the petitioner, and having read the paperwork on how the commercial court works, that suggestion would be the best model.

Obviously, we would have to hear another point of view. As Bill Aitken rightly said, it is a matter not for the committee but for the court. We can only give a strongly worded view of what we think should happen. As I said at the beginning, Lord Coulsfield's report did not recommend anything specific.

The reason I ask is that we must have some indication of why the court has not already gone down that road, given that we have been considering the issue for the past few months.

I can only presume that that is because there has been movement. That fact must be acknowledged, as well as the fact that Lord Mackay of Drumadoon has been appointed to consider that type of case. That was, in part, a response to the on-going debate.

The debate has been broad because the petition has raised other issues and there are also other issues in Lord Coulsfield's report. For example, there is the question of pursuers' offers. There is also the question of the Fairchild case, which is worrying because case law might not be helpful there, and there is a suggestion that new legislation to assist us with that might be needed. There is also the question of jury trials.

We are trying to get the petitioner to focus on the biggest stumbling block, which seems to be the written pleadings system. That is what we are trying to address.

All that we know about the case management issue is that it was considered by Lord Coulsfield. The report took the view that the time and effort required would be disproportionate to the benefit. It might just increase the burdens of the procedure. However, we have not pursued that point specifically with the Lord President because there was a wide range of questions. We could go back and ask some more questions.

As I mentioned, there are other issues on which we need to make progress. We know what we want to do on written pleadings, so we can consider suggestions for calling witnesses on that subject.

It might be helpful if someone was willing to volunteer to work with me or to be a reporter on some of the other issues, so that we can ensure that we make progress on all outstanding matters. What about the deputy convener?

Okay. No doubt the Official Report will record the applause.

I will bring my hand out from under the desk.

Thank you, Bill. You will be rewarded, I am sure.

Do members have anything else to say about the petition?

The issue has been discussed for a considerable period of time in correspondence between the committee and the Lord Justice Clerk or the other judicial authorities about how it wants to progress. There is a strong sense of urgency among victim groups and victim representatives. They did not get the opportunity to speak at the last meeting when Frank Maguire gave evidence on the legal issues on their behalf.

There is a sense that those people have been continually frustrated by the courts and by successive developments within the insurance industry and the operation of defendants of such cases. It would be welcome if the committee was to maintain a focus on the urgency of trying to get a rapid solution. Those people would appreciate that, and it would be appropriate in the context of the time that they have had to wait.

I assure you that that is what the committee has done from the beginning. I cannot emphasise that strongly enough. Of all the petitions that we have received, this one has been given the highest priority. We are very aware of the frustrations of the people concerned. That is why we have focused on how we may be able to do the most good. Now that the committee has agreed on what it wants to do, we will make progress.

In the course of taking evidence and getting more information, do members wish to hear from any of the defenders?

Members indicated agreement.

Might the proper approach be to contact the Association of British Insurers?

There seems to be no dissent from that, so we will see whether we can get someone to address us on the issue.

I thank Des McNulty for attending the meeting.