Justice 2 Committee, 26 Jun 2001

Meeting date: Tuesday, June 26, 2001

Official Report 214KB pdf

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Petition

Item 3 deals with petition PE336. I assume that members have had a chance to examine the many useful documents with which we have been provided, including an extract from the Official Report of the meeting of the Parliament of 30 May and submissions from the Scottish Law Commission, the Scottish Legal Action Group, the Lord President and the Association of Personal Injury Lawyers.

The purpose of today's discussion is to decide whether we want to take any further action on the petition. The papers include suggested courses of action but members may suggest others.

The petitioner, Frank Maguire, has contacted the clerks and wishes the opportunity to respond to the submissions that we have received. Accordingly, he has given us a paper, but we have not had time to circulate it. As members already have a lot of paperwork, we have decided to hold the petitioner's submission back until we have decided what to do with the petition.

The petition raises an important issue and I found the papers interesting. I had formed an opinion when I read the petition but the other documents let me see that the situation is not as straightforward as I had thought at first.

I would like to think that we can do something to resolve the issue, but I am not sure what that would be, as many parts of the legal jigsaw are involved. The fault—if you want to use that word—does not lie all on one side. We have been given a lot of information and I think that we need time to consider whether we are able to do something to resolve the situation.

That is a long-winded way of saying that we should consider the documents that we have before us but we should not make a firm decision today.

I will draw out some of the main issues. The petitioner claims that in personal injury cases, written pleadings delay court proceedings, because the pursuer must prove their case and so must make a detailed submission when the pursuer and the defender write up their cases. Peter Beaton from the Scottish Executive has pointed out that that is the law: the pursuer makes a case, which the defender denies in the pleadings. However, the petitioner points out that the defender often issues a string of simple denials, which means that the pursuer cannot tell whether their case is strong or weak.

Although Scott Barrie is correct to say that such matters are never one-sided—I am sure that both sides are involved in causing delays—I believe that the petition raises an issue that needs to be examined.

The papers contain a comment from Lord Prosser in the case of Ross v British Coal 1990. He said that simple denials are not acceptable. The fact that a High Court judge said that strengthens my view that the issue needs to be examined.

The Association of Personal Injury Lawyers comments on some of the issues highlighted in the petition. A related matter is the interpretation of the Prescriptions Act 1973. A lot of cases have been time-barred because of the interpretation of the part of the act that states that a person can bring a claim no later than three years after it was "reasonably practicable" for them to know about the existence of the disease and its cause. Interpretation of that has been strict.

Interpretation is a matter for the courts, but if it is causing undue delay and unnecessary unfairness, it is a matter for the committee. I have not formed a view on which option we should proceed with, but in principle I believe that we should proceed. I would not be unhappy for the committee to take oral evidence from the petitioner, but if we do so we would have to hear from the range of people whom we have asked for evidence. I am not against that; it is a matter of whether members want it to be included in the future work programme.

I concur with that suggestion; it is perhaps what I was trying to suggest. It would be difficult to come to a final decision on what to do today. The petition raises many issues that cut across the legal and justice systems. It would not be a bad idea to examine the matter in the committee's future work programme.

I want the committee to pursue the petition and to have further discussions on it. We can see from the evidence that has been submitted so far that there are problems in pursuers bringing their case to completion. They are not able to resolve the problem on their own, so legislative changes may be required. I do not know about that, but I want the committee to examine it.

In the light of the remarks that colleagues have made, I believe that several of the options before the committee could be pursued, including writing to the Lord President to seek information on which of the working party's recommendations will be implemented and writing to the Minister for Justice about the points that have been raised. Information could be gathered over the summer to allow the committee to consider the matter and make a decision in the autumn.

I will outline what we will do next. Members feel that, in principle, we should proceed and are not opposed to including the matter in the committee's future work programme. Would it be helpful if I asked for a summary of the points raised, as some of them are complex legal issues?

Yes.

The letter that I mentioned from the petitioner, Frank Maguire, will be circulated. It would be wise to ask him to respond to everything that has been said.

I think that Tavish Scott suggested that we call the Lord President to give evidence. A report is on the table, which will supposedly address some of the points that have been raised. We should familiarise ourselves with the contents of that report.

There is not much point in calling the Lord President to give oral evidence until, as the clerk has rightly suggested, he has replied in writing to the points about the working group's recommendations.

Once those points have been clarified, we can address whom we should invite to give oral evidence. We will deal with written evidence at the moment.

It seems sensible to write to the Minister for Justice—he should know that we are picking the matter up and that would allow him to comment.