Public Petitions Committee, 27 Feb 2001

Meeting date: Tuesday, February 27, 2001

Official Report 173KB pdf

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New Petitions

The first new petition is from Mr Frank Maguire of Thompsons Solicitors and Solicitor Advocates, on behalf of Clydeside Action on Asbestos. Mr Maguire is here to address the committee. You have three minutes for an opening statement.

The three minutes has been well emphasised, so I will try my best. As you know, lawyers do go on.

It is good discipline—we get only four minutes in the chamber.

Thank you for giving me the opportunity to address you. Since I have only three minutes, I will go speedily to what I want to say.

The petition is about consideration of our system of civil justice, which is based on written case. That means that each party is supposed to put its full case in writing before the court. The reason for that is to give notice to each side about what the case is and to show that the case is relevant in law. That is all very laudable, and has been described as the beauty of the Scots system. That is right—if it works properly. However, it does not.

Asbestos cases are all one-sided. The case authorities are the judges who consider the system. The pursuer—the person who is taking the case—has to put everything into the written case, whereas the judicial authorities say that the defender—the person whom the claim is against—does not have to do anything. I will give you an example. We all know that there is a QE2 and that it was built between 1966 and 1968 by John Brown and Company Ltd of Clydebank. We all know that there is asbestos on the QE2—we have only to go and look at it. We all know that the asbestos was put in by joiners and laggers and that installing the asbestos would disturb it, exposing the joiners and laggers. We also know that it was well known in the late 1960s that asbestos was extremely dangerous in those circumstances.

However, when it comes to the court case, the pursuer—the victim—states all that, and there is a pure denial of it by the defender. In other words, the defender denies, in the Scots courts, matters of historical fact—matters that are obvious and that are known by everyone. Those are called skeletal defences. Despite the fact that the case authorities think that that it is regrettable and unjust, they say that the pursuer has to prove his or her case. The defender can continue to deny everything, despite the fact that the position is obvious.

We sued the council in Glasgow over the Red Road flats. Everyone in Glasgow knows that there was asbestos in the flats—a 1967 survey showed that that was the case. The council was negligent, but it denied that there was asbestos in the flats. Scottish pleadings allowed it to do that. Another example is Dalmuir, a well-known asbestos factory near Clydebank, where Turner and Newalls—one of our biggest asbestos producers—was negligent but is allowed to deny everything. The effect of that is delay in our pleadings and in our process. We are not allowed to receive interim payments on the base of written case because of the denials. The costs go up, the hearings take much longer than three years and we are denied jury trials.

I am acting for people who have no time. They are dying of mesothelioma, and I have to tell them that I am sorry, but I cannot get them an interim payment or a jury trial because their employer is allowed to deny that there was any asbestos in the place that they worked in.

We must ensure that the growing number of mesothelioma cases that are arising receive proper civil justice, rather than the charade that goes on in the Scottish courts.

Thank you.

Dorothy-Grace Elder has arrived—we are dealing with the first petition, Dorothy.

I apologise for arriving late—trains are being cancelled. I have studied this petition and I know something of the case.

One remedy might be for the court to empower whoever is sitting in the judge's seat to recognise certain questions of fact at the outset. Does that strike you as a reasonable approach?

One way of doing that would be to give the courts and the pursuer greater powers to force the defender into stating a candid position. In other words, defenders could not deny obvious facts.

In some American courts, the two sides agree that certain facts do not need to be proved. Could we empower the judge to compel that to be done?

Yes. That does not happen at the moment. The situation in the Scottish courts is very much hands off.

That seems to me to be the answer. You would not have to prove the obvious; you would have only to prove that the person suffered from the asbestos. You should not have to prove what we already know to be the case.

We cannot be talking only about asbestos cases. There must be other illnesses where a person has to wait to prove a reparation case. Are you saying that asbestos is unique in reparation?

Asbestos-related illnesses are probably the hardest cases. There are hard cases where people are dying for other reasons, but I am dealing with someone whose life is draining away from them. I cannot get the case through the courts in time to get them the payment in advance to improve their quality of life and to help them when they are ill. There is no point in getting them damages just before they die. If they die, the widow and the family have to carry on the case—that adds to the grieving process.

You are right—asbestos is the most obvious case. We know about John Brown's and so on, but there will be other cases where it is obvious that what is happening is a charade and an abuse of the system, because it delays payments.

Would my suggestion speed it up considerably?

Yes. We would have to give power to the court, and to the person who was pursuing the case, to force the defenders to look behind the written case. If the defenders are saying that John Brown's did not exist, they should be asked for proof. If a post-mortem report says that the cause of death was mesothelioma, the defender should be required to prove that it was something different. There must be better case management and greater control by the courts. Initiatives to force defenders to state a candid position should be introduced on behalf of the pursuer. At the moment, defenders will not do that.

Has any approach been made to the Society of Messengers-at-Arms and Sheriff Officers, which meets regularly to discuss problems that arise? Would it be a good idea for us to approach the Society of Messengers-at-Arms and Sheriff Officers, telling it that it is party to bad procedure?

The cases that I am talking about are with the Court of Session.

Are they all with the Court of Session?

Yes. It is a Court of Session problem that is passed down to the sheriff courts, although jury trials are not possible in the sheriff courts.

Some thought has been given to the reform of procedures—not because of the problems that I have described, but because cases go to the door of the court. That issue has been acknowledged, but the courts have not recognised or addressed it. Instead, they have said that the case of the pursuer needs to be as bare as that of the defender.

And then the man dies?

Yes. I do not mind stating a full case, providing the witnesses and producing all the evidence that I have. However, defenders are not forced to do that; if they were, courts would get to the nub of the case and would not be faced with a flak-and-blunderbuss approach.

If the medical evidence was being disputed, we would know that that was the dispute in the case—not whether John Brown's existed or was negligent. We would get to the nub of the case, which would save time and effort.

Would you take some cases en bloc, with several men appearing, or would all the cases that you would contemplate be individual cases, even if the system that you and Winnie Ewing are suggesting was approved?

The problem is acute. I am considering about 900 cases of asbestos-related illness, 450 of which are with the Court of Session, and the number of mesothelioma cases, which are the worst cases, is due to rise. All those cases are going to court, and in every case I have to re-prove everything.

So every case is treated individually at the moment.

I have to procure an expert's report, telling me that there was asbestos at John Brown's, that the shipyard owners knew about the dangers of asbestos, and that the steps that should have been taken were X, Y and Z. I must do that for every individual case.

Of the 450 cases that are in the court system, which was the earliest recorded case? How many years are we talking about since the cases were first recorded?

The cases date back to the 1950s. Some were recorded in the late 1940s, but the most obvious cases of negligence are mainly from the 1950s and 1960s, when people knew of the dangers of asbestos.

When were the earliest recorded of those 450 cases first lodged?

It takes about three years for a case to go through court, from beginning to end. One of the reasons for that is the court system. The other reason is that I have to go through the entire procedure for each case and then, as a matter of practice, the defenders in the case settle the case only on the morning of the hearing.

Yes. The old change-of-plea tactic.

I am dealing with a mesothelioma case for a widow who had been pursuing a case for three years. All the evidence was available and everything had been lodged. I received an offer to settle the case at 8 o'clock on the morning of the hearing.

Was it a good offer or a puny one?

It was reasonable. We negotiated further compensation, and the case was settled fully—there was no discount—and we got the full damages payment that morning. Why is the incidence of the hearing—which is set at an arbitrary time, by the court—the time to settle a case? Why can cases not be settled long before? Why can defenders not come forward and say that they will make an interim payment and that, while other things may be disputed, they will discuss the real nub of the case with us?

Instead, I had to prepare for a hearing, produce evidence to prove that the man was employed by the shipyard—despite the fact that his certificate of apprenticeship was sitting there—draft in an expert to testify that the company was negligent and knew about all the documents, and prove that John Brown's existed and that the QE2 was built there.

I also had to prove—despite the fact that the post-mortem report contained nothing to suggest otherwise—that the man died from mesothelioma, and to prove the case for damages. I then had to put a widow in the box to tell the court how bad she felt about her husband's death.

I gather that the case is being denied on the basis of a small part of it. It cannot be denied that John Brown's existed; surely that would be contempt of court. If the defender is lying to a court—if they are demanding that you prove something because they are denying it—could that be construed as contempt of court? Witnesses who lied to a court would perjure themselves.

I know exactly what you mean. I understand that that might seem to be against common sense to someone who is not involved in the system, and the idea of lying comes to mind. However, the court has ruled that it is legitimate for the defenders to deny everything. The courts say that the pursuer has to prove their case, and that all the defenders have to say is that it is denied.

The court is allowing the defenders to deny everything, which is part of the problem, and it is showing no signs—either through judicial decisions, which I have rehearsed in the petition, or through examining its procedures—of addressing that issue. That is why I have had to approach the Scottish Parliament.

Do you have any estimate of how many people, from the 900 cases that you referred to, have died while they were waiting? How many do you estimate will die during the waiting process?

In no case that I am dealing with will the man or woman who is suffering from mesothelioma have their case settled before they die.

In no case?

One case in the past three years has been settled.

One case in which the person survived?

I settled one case for a man who is dying of mesothelioma. In all the other cases, the person died while they were waiting.

That was one case out of how many?

Not all the 400-odd cases concern mesothelioma; however, the number of such cases is increasing. Probably at least 33 to 50 per cent—and rising—of the cases are mesothelioma cases. I am dealing with cases in which the pursuers are trying to get the case through court, but are dying. I must be honest and say that I shall not settle those cases before the pursuers die.

All 450?

Despite the fact that I have given everything I can—I have submitted every piece of evidence and everything on the written case, as well as all the witnesses—the person will die before I settle their case.

In all 450 cases?

Not all the pursuers are dying. About 33 to 50 per cent of those cases concern mesothelioma—the worst cases—and the person will die within 14 to 18 months.

In that category, all the pursuers are expected to die before you get their cases through the legal machinery.

Yes. There is another irony because, when the person dies, the case will be strengthened. It never ceases to amaze me that insurance companies do not do anything sooner, as it would save them money if they settled the case before the person died. However, they go through the system.

The case of the man who is dying will not get to a hearing for a further two years. The widow and family who will take on the case after the person dies will have to wait another two years before they get a hearing, and on the morning of the hearing I will receive an offer from the defenders. In 90 per cent of cases, I will receive a good offer, but that will not happen until the morning of the hearing.

Winnie Ewing suggested that the court should have the power to compel the defenders to accept the known facts. Would that require a change in the law?

That could be permitted through the rules of court. It may require an act of sederunt by the Lord President.

The Lord President could provide that tomorrow, if he wanted.

If there was a problem with the act of sederunt being ultra vires, it might be a matter for legislation.

The contention of your petition is that the power exists to change the procedures, but they are not being changed. That is why you want the relevant justice committee to intervene and review the procedures.

Yes. It is all very well for lawyers to examine the system, but they do not recognise the problems. However, there is massive public interest in the cases, and I am frustrated—that is why I am here. I am faced with such cases day after day, week after week, and I am fed up of telling people who are dying of mesothelioma that I cannot do anything. I am trying my hardest.

Will not there be more and more cases of asbestos-related illnesses, in view of the fact that more ships contain asbestos? Are you expecting a continual increase in the number of such cases?

The petition contains an excerpt from the British Journal of Cancer. The number of mesothelioma cases is rising and is not due to peak until 2018. The incidence of cases of mesothelioma is higher per annum than that of cervical cancer.

Several background papers on the subject have been received by the clerks, if members are interested.

Are we coming to the clerks' suggested course of action?

At this stage we are questioning the petitioner. Are there any further questions to be asked or points that need to be highlighted, which we have not addressed?

No. I am just worried that the matter might be referred to the people who are responsible for the system, who will not change it because they are part of it.

Do you mean the Crown Office?

I mean the judiciary, the Lord President or the judges. The judges have said, in court decisions, that the present situation is okay. That is what I am worried about.

So, you are keen for the matter to be pursued by one of the justice committees, of which the Parliament now has two.

Yes. One of those committees should call for evidence from the people who are responsible for the rules and the system.

You mentioned that you have approached Gordon Jackson, among other MSPs. I think that he is the convener of one of those committees, although I am not sure. Did he advise you to submit a petition?

Yes. We contacted Gordon Jackson because his constituency covers the Govan shipyards and the Fairfields yard, and a lot of his constituents are pursuing cases. Des McNulty's constituency covers Clydebank, where John Brown's is based, and Duncan McNeil's constituency covers Inverclyde, where there is also shipbuilding. We raised with all those MSPs the problems of their constituents, and their advice was that we had no choice but to take the matter to the Scottish Parliament.

I have a final question. Are you dealing with all the people who worked at John Brown's?

My firm deals with 90 per cent of the asbestos-related cases in Scotland.

From all over Scotland?

Yes.

I take it that not all those cases are the major, deadly ones, but that they all involve asbestos-related illnesses.

Yes. The worst cases involve mesothelioma, and their number is due to rise. Increasingly, younger people are contracting the disease. I am dealing with the case of a 42-year-old man with three children who has mesothelioma.

Do you want jury decisions?

A jury decision would highlight the fact that the judges give very low awards that ordinary men and women in Edinburgh think should be greater. No one is going over the top about it. However, the public think that £50,000 is too little for a man's pain and suffering and loss of expectation of life at the age of 45. I cannot get a jury to highlight that fact, because of the judicial system. The defenders make the case complicated on the face of it, although they have no intention of disputing it.

I would like to get a jury trial for a mesothelioma case, as I would like to know what a jury would make of a person's pain and suffering. That would signal to judges—if the matter went before a judge—that £50,000 was too little.

It is like the situation for service persons who were injured in the war. It is simply outrageous to wait for the poor souls to die off.

One considers such things and wonders why there is a delay.

I have a further point to mention, although I know that the committee is pressed for time. Members have probably heard about the liquidation that is taking place of Chester Street Insurance Holdings—formerly Iron Trades Holdings. The company may pay only a percentage of the damages that are due, less the legal expenses, which makes the situation even worse. All the expense of pursuing cases will be met by victims.

I wonder whether we need some form of national policy on the matter. As the number of cases increases, are we talking about there being several thousand people rather than 900?

That figure of 900 is static just now. An increase is forecast for next year and for the year after that. I think that we are talking about there being several thousand cases by 2005.

There must be a society of insurance companies that could be approached in an attempt to shame the companies into behaving better.

I find that they are immune to that type of approach.

Have you tried it?

I have, over the years.

"Immune" is a nice way of saying that they are shameless.

This may be the wrong idea altogether, but I wonder whether the Government in Scotland could set up an ex gratia fund of some kind for interim compensation, which could be claimed back later. Alternatively, the Government could take legal action against some of the firms. I do not know whether that would be feasible.

That issue is outwith the terms of the petition, but we can talk about it when we discuss the petition. Do members have further questions for the petitioner? We must move on to discussion of the petition.

Do you want me to comment on that idea?

Yes, please.

I support the view that we should not let the insurance companies get away with not paying rightful damages and that the Government should not have to step in, allowing the companies to benefit from the situation. Additionally, ex gratia payments tend to be banded and do not allow for substantial damages. A set payment is allocated for certain damages, which tends to be quite low. I would be a wee bit worried about ex gratia payments, although I recognise where Dorothy-Grace Elder is coming from. In the first instance, the Government should give the pursuer and the courts the power to ensure that people get rightful compensation.

Thank you very much. That was harrowing evidence, although it was very helpful and informative to the committee.

We move on to discussion of the two suggested courses of action. The first is that, as a first step, we should try to get the views of the justice department on the petition. That would enable us to refer the petition to one of the justice committees for consideration with both sides of the argument.

Speaking from the heart, it strikes me that, if one of us was prepared to lodge a members' business motion on the subject, that would clarify the minds of the shameless insurance companies and the rather uninterested Lord President, who could step in and pass an act of sederunt. He has the power to do that straight away. I would be willing to lodge such a motion. I have used only one of my opportunities to have a members' business debate.

I am informed that Duncan McNeil has already had the matter debated as members' business.

I must have missed that.

I did not know about it, either. However, that is a matter for individual members. The committee cannot make such a decision.

What about the appeal? Could we write a letter to the insurance companies, protesting about the way in which the matter is being handled? Could we write to the Lord President, suggesting that it is in his power to establish open agreement about the facts, which would expedite enormously all those cases and save expenses? In addition, we should approach the Lord Advocate and the justice committees on the subject. We should do all those things to address this terrible injustice. As a lawyer, I am ashamed that the law is letting people down in this way.

It is for this committee to decide to where the petition should be referred. The advice is that this is a matter for the justice committees to take up with the Lord President. It has been suggested that we should find out the Executive's position, send the petition to the relevant committee for its information and, as soon as we receive a response from the Executive, send it to that committee and ask it to carry out an inquiry.

When we pass the petition on to the relevant justice committee, could we suggest that it should contact the Lord President as a matter of urgency, even before we receive the Executive's response? That would seem to be the fastest way in which to deal with the matter. Perhaps pressure from that committee would make the Lord President act.

We can ask the members of a justice committee to do that, but it will be for them to decide whether they do it—we cannot force them. However, we can suggest that they do it while we get the views of the Executive.

Do the clerks have a copy of the Official Report of the parliamentary debate when Mr McNeil raised this subject?

I do not think that we have it here this morning, but you will be able to get a copy. I think that that debate was about three months ago.

I will have a good look at it.

Could we approach the Executive and ask it to initiate an Executive debate on the issue? Indeed, any of the parties could initiate a debate. If Mr McNeil initiated a members' business debate, he would get only half or three quarters of an hour and the debate would not come to a vote. If we had a full parliamentary debate that went to a vote, I think that all parties would want to end the most inhumane elements of the situation.

Convener, I did not quite pick up what you said about writing to the Lord President. Did you think that we should not do so?

That will be a matter for a justice committee. If that committee wants to review the procedures, it will take the matter up with the Lord President.

Cannot we also do so?

I am reluctant to interfere with another committee's remit. We will be asking a justice committee to carry out a review of the procedures of the Court of Session, so the matter will be in that committee's remit. However, if we pass the matter on to a justice committee, and it does not take the matter up or carry out a review, we have the power to lodge a motion in Parliament asking for a debate.

That is good.

If we get no success through the avenue of a justice committee or the Executive, we can return to the matter. We can say that we think that it is important enough for a parliamentary debate. We would have to get Parliament's support.

Could we ask for a debate anyway? It might take a justice committee some time to respond. Could the Public Petitions Committee make that move directly, so that the wheels started to turn?

The procedure would be for us to lodge a motion. The Parliamentary Bureau would then decide whether the motion would go before the Parliament. Until we have tried the other avenues, we cannot pressurise the Parliamentary Bureau into holding a debate. It would say that other avenues were open to us—such as a justice committee. The petition itself asks for a review by a justice committee and we are taking steps to initiate such a review.

This item will remain on our agenda; members can raise it at any time and ask about progress or responses from the Executive or the relevant justice committee. If we are not happy with the progress, we can pursue the matter by other means. Initially, we should approach the Executive, ask for its position and whether it intends to hold any parliamentary debates. At the same time, we should pass the petition on to a justice committee so that it can consider the possibility of a review.

A justice committee will be in the same position that we were in before we heard all the evidence. It will not have the knowledge that we now have.

The Official Report of this meeting can be passed to the members of the relevant justice committee, so that they can read the evidence that has been presented to us and learn how serious the situation is. We can recommend to that committee that the matter be given urgent consideration.

Good.

It cannot just be put on the back burner, as often happens with petitions.

In the covering letter that we send to the Executive and the relevant justice committee, could we include some of the points from the Official Report—which staff are kindly working on this morning—about the number of people who are dying? In particular, we should include the point that all clients in the most severe category are expected to die before any cases reach the courts. Would that be possible?

The clerks will write that letter and it will be possible to do that. Are we agreed on that?

Members indicated agreement.

Thank you very much, Mr Maguire.

I thank the committee very much for its time and attention to this very important issue.

We will keep you informed of the progress of the petition.

The next petition is petition PE338, from Mr James Bennett. The petition suggests an alternative model for the transfer of ownership of council housing. It calls on the Scottish Parliament to ask the Scottish Executive to provide a model for the transfer of ownership of council housing and/or to provide criticisms of Mr Bennett's suggested alternative approach. Mr Bennett is not here, but he has given us a very detailed alternative model for the transfer of housing out of council ownership into something that would, in effect, be a tenants' corporation.

This subject has already been dealt with by the Scottish Executive as part of its consultation on the Housing (Scotland) Bill. The then Social Inclusion, Housing and Voluntary Sector Committee had a major investigation into housing stock transfer and the SNP held a parliamentary debate on the issue. Given that Parliament has spent so much time on the subject, it is suggested that we refer the petition to the Scottish Executive and ask it to respond directly to the petitioner, giving a detailed response to his suggestions. Are we agreed?

Members indicated agreement.

The next petition is PE339. The petitioner, Mr John Lyon, was supposed to be here this morning. In case he turns up, I suggest that we postpone consideration of this petition.

Petition PE340 is from Mr George Scott, on behalf of the Lochgoilhead chalet owners association. Members will remember that previous petitions on the Carbeth hutters were referred to the then Justice and Home Affairs Committee, which carried out an investigation. The Executive has now promised legislation to provide greater protection for hutters in Scotland. It is currently consulting on the issue.

The petition calls on the Scottish Parliament to implement emergency action to ensure that people who own property on rented land, where that property cannot be removed without being destroyed, are not deprived of their property while consultation on legislation continues. Mr Scott is asking the Executive to take emergency action to prevent the destruction and removal from the owner's land of the property of people whose leases on that land have run out.

That might not be possible; legislation might be required to bring in a moratorium. However, as a matter of urgency, we should send the petition to the Executive so that it can decide as quickly as possible whether it is possible to do anything to protect people who are in the situation that the petition describes. I am sure that the Parliament would want to protect the rights of hutters in such circumstances.

Does anyone know Loch Goil well?

I do not. Do you?

It is called Campbell's kingdom—Campbell being the landlord and not exactly a favourite of anybody in the area. He cuts down trees without permission. Of course, once they are down, it is too late. He rides roughshod over the whole Loch Goil area. I suspect that Campbell is the landlord who has given people notice to quit—although that might not be true. Am I right in thinking that this issue is sub judice?

The law as it stands gives owners the right to ask people to leave at the termination of their leases. The Government is consulting as part of its review of that law.

Changes might not happen in time to deal with the notices that have been served.

Yes—that is why we have received the petition. Mr Scott is asking for a moratorium on removal of anybody from the land while the consultation goes on. I am not a lawyer, but I think that that might require legislation. We need urgently to hear the Executive's view, so that it can tell us whether it intends to take steps to protect people.

The huts at Carbeth have been there for a long time, but the chalets at Loch Goil, on Mr Campbell's land, are relatively modern. In case the people at Loch Goil have some rights, it would be interesting to know what kind of contracts people were offered when they first got their chalets, and what agreements they entered into. That would not have happened very long ago, so this case is not a bit like the case of the Carbeth hutters. I agree that the petitioners want quick action.

I do not think that we have that information at the moment, but we can ask the Executive to look into it.

I know the chalets. Some of them are about 20 or 30 years old. The situation with the Carbeth hutters arose for different reasons, but the basic situation of the people at Loch Goil and Carbeth is similar in that they do not own the land on which their homes stand. That is why we should rush the petition to the Executive.

Okay–it is agreed that the course of action that we will pursue on the petition is to ask the Executive to respond urgently.

We will return to petition PE339 when we have dealt with the current petitions.

Members indicated agreement