Petition
Asbestos (PE336)
I welcome the petitioner, Frank Maguire. Perhaps he will introduce the person next to him.
I have with me Harry McCluskey, who is the secretary of Clydeside Action on Asbestos.
I welcome him, too, to the Justice 2 Committee.
I thank you for providing the committee with an extensive set of papers, which it has been extremely helpful to have in advance. As you will imagine, we want to ask a number of questions. We have approximately 45 minutes, but we can see how it goes.
The petition raises many issues and, as you may be aware, additional issues have been raised by the Association of Personal Injury Lawyers. This morning, we would like to get a good understanding of the main points, so that we can decide what further information we need. In the main, the members of the committee are lay people, who have had no dealings with civil court procedures, so it would be useful to get on record a detailed understanding of the issues.
I shall begin. What is your impression of the recent appointment of Lord Mackay of Drumadoon to speed up and oversee the procedural aspects of asbestosis cases? It would be useful to have your opinion on whether that has meant progress.
The appointment of Lord Mackay to deal with asbestos cases is a welcome development. For the first time, the court has regarded asbestos cases as a category. That is a good thing. The Court of Session, which had thought that it had less than 100 cases, now realises that it has in excess of 500 cases. The exercise is a good development.
Lord Mackay will also bring some consistency to the way in which the cases are dealt with. He will begin to know the issues, so we will not need to reinvent each issue afresh before the judge. Lord Mackay will get a good background to the issues that impact on asbestosis cases, such as the Fairchild decision, the insolvency of Newalls Insulation Co Ltd, the situation with Chester Street Insurance Holdings Ltd and the situation with British Shipbuilders. We have apprised Lord Mackay of those issues by giving him background papers, one of which—a letter to the Keeper of the Rolls—I have provided to the committee.
Lord Mackay has been picking up cases that have fallen off the present system. He has brought back into the system many cases that had, for whatever reason, fallen off the system after they had been worked on by the court or by the parties. He has put those cases back on track.
Because we deal with 90 per cent of the cases, I have been able to give to Lord Mackay a ready database containing every case. The papers that I have provided for the committee contain an example of what that database contains. We have liaised with the Keeper of the Rolls staff in setting up the database and getting it up and running. The court inputs much of its data into the database and then passes the database back for us to input data that we can provide. That is another very good development.
However, that is as far as it goes. The root of our problem is still not being addressed, because Lord Mackay is still bound by the rules and the written system of pleadings. For example, if we brought a case of negligence in employment against John Brown Engineering, claiming that the company knew of the danger of asbestos, and sought to obtain a post-mortem report and medical records, the defender could still deny everything and maintain that denial throughout the case. Lord Mackay cannot really do anything about that.
Therefore, even with Lord Mackay's appointment, the matter can only be taken so far. As I have said, we are not tackling the root of the problem. If we were, Lord Mackay might have more powers than he has under the current rules. Indeed, he might not even deal with these cases himself. To illustrate the crisis that we are facing, I should point out that, although we have 500 litigated cases in the Court of Session, I have another 1,000 cases on my books. As we are currently obtaining a maximum of 180 trials a year, it will take us at least 10 years to get through that backlog. Of course, that is a static view; it does not take into account the cases that will come on to my books over those years. For example, five mesothelioma cases were brought to us last week, which is not unusual. The problem is getting bigger, not smaller. That said, I repeat that, although the root of the problem is not being tackled, Lord Mackay's appointment and what he has been doing are extremely welcome developments.
The committee takes the petition very seriously and wants to make the maximum amount of progress on it. We agree with your introductory remarks, which were helpful. You said that part of the root of the problem is the written pleadings system. Although I understand the basics of the system, will you give us some more detail about the rule changes that would be required to deal with written pleadings and skeletal defences?
Do you want me to give the committee a brief resumé of the problem?
That would be helpful, but my question is concerned more with the rule changes that would be needed to improve the written pleadings system.
Very briefly, the written pleadings system is the foundation of all civil justice procedures and is fundamental to the determination of whether a case will be heard by a jury or before a judge. A kind of legal industry related to the system picks up and elaborates on various points. However, one of the problems is that, in the face of a detailed written case, defenders can pick off points but still deny everything. For example, the case of Gray v Boyd, details of which I have submitted to the committee, demonstrates that authority from the Inner House of the Court of Session upholds such a position.
We must realise the system's disadvantages. First, there is no admission of fault. There has been a lot of talk about compensation; however, although compensation is helpful, I have noticed with asbestos cases that the person wants an admission of liability. It is most important that someone admits negligence, but we cannot obtain such an admission under the current system.
People who bring asbestos cases also want interim payments which, pending resolution of the full case, would alleviate their suffering and let them conduct their lives while they are ill and, for example, might help a widow with subsistence after the main breadwinner has been lost.
Because the system means that we have to prove so many things, it prevents us from obtaining jury trials. The case becomes too complex for the court to allow it to be brought before a jury. Furthermore, the system uses up all the pursuer's agent's time, because he has to deal with all those issues. In other words, it uses up their time and resources, while the defender knows full well what the real issue is and concentrates on that—there is a diversionary aspect to the case.
That is the problem, but there are ways of dealing with it. The problem is not limited to the Scottish jurisdiction. Things have been done both in England and in the Scottish jurisdiction to stop skeletal defences or denials.
In England, the problem was addressed through the Woolf reforms and the creation of a judicial management system. Cases are kicked off by brief written pleadings, but then the defendant, with their file, meets the judge and is asked what their problem is. If they give a defence that is spurious or that is not in good faith, they will not get very far with that.
I sat in on a case in Newcastle with one of my colleagues, who is an English solicitor. It was a live mesothelioma case—that is to say, it involved someone who was dying of mesothelioma. The litigants sat down in front of the judge at a very early stage in the case. They had the file, the insurance agent had the file and we had the file. The judge asked what the problem was and got right to the root of the case. It turned out that the only problem related to some aspect of quantification. Everyone agreed that. The judge then set a hearing for the following month. That is an example of a judicial management system in which it is possible to get behind the written charade to the real issues between the parties.
The committee has before it evidence submitted by Paul Motion, who is a solicitor advocate who specialises in commercial cases. It is interesting to see what the Court of Session does in such cases. The background to the establishment of the commercial court is also interesting. The business community was not happy with skeletal defences and long delays in cases. Pressure from the business community led to the institution of the commercial court. It was also thought that companies were taking cases to England because it had a commercial court. They did not want to be subject to archaic Scottish procedures—long delays and skeletal defences—when they could have cases dealt with readily in England.
Within the Court of Session we have a judicially managed system. Paul Motion's evidence provides the committee with a good illustration of how that works. In paragraph (c) of the section headed "Procedural Advantages of the Commercial Court", he states that judicial intervention
"has the effect of focussing the minds of both parties on the real issues. It is simply not permissible in the Commercial Court to hide behind bare denials of one party's position. Commercial Judges have, (in terms of the rules), almost total discretion over the questions they ask and the procedures they follow ... they consider themselves in no way ring-fenced by what is written in those documents. Commercial Judges ... ask hard questions about documents or their meaning or their effect. Litigants are expected to get to the point."
That is an illustration of what happens in the commercial court.
Lord Coulsfield's report explains why we do not have that procedure. The judges thought that personal injury cases were routine and that such a system would not be necessary. First, not to have cases judicially managed because they are routine is to apply the wrong criterion. There are other important criteria that ought to be applied, such as justice, the fact that a person is dying and the importance to them of the case. Secondly, Lord Coulsfield's comments were made some time ago. Asbestos cases are no longer routine. Because of the insolvency of various insurance companies, the lawyers involved must have a very good knowledge of insurance law—the Policyholders Protection Act 1997 and the Financial Services and Markets Act 2000. They must have a very good knowledge of company law—British Shipbuilders, for example, is denying liability for various companies that existed in the past—and they must have a very good grasp of medical issues, because of the Fairchild decision. They must also have expertise in the usual matters related to asbestos cases, some of which are complicated.
Even if the judiciary's reasons not to have a judicially managed system were good in the past—I do not accept that they were—those reasons no longer apply. What we seek is a model of a judicially managed system, such as the models in the Woolf reforms and in the commercial court. Lord Cullen partly suggested such a model in his review, which took place before Lord Coulsfield's review. Only with a judicially managed system will we get to the real issues, which allows cases to be disposed more speedily. Instead, at present, all matters are in dispute and everything runs to the door of the court.
I can elaborate further on how a judicially managed system would work, but some other points are interesting.
May I stop you? I would like you to clarify a matter. In his letter, Paul Motion cites judicial intervention as most important. You, too, advocate a judicially managed system in which judges assess the parties and ascertain whether someone is putting up a spurious defence, which judges can deal with at that point, instead of a framework for what can and cannot be said in written pleadings. You support judicial intervention.
At present, we have a hands-off system in which the parties are sent away to operate written pleadings. Now and again, parties come to court to say what they want to happen. I do not think that that system is working.
I have the sense that you want to move away from a paper exercise to a more human exercise in which the parties go before a judge who tries to narrow the focus to the points of disagreement. Is that assessment fair?
Yes. A denial by defenders that John Brown's was a shipyard would not go far. If defenders denied that they knew of the danger of asbestos, a pile of documents would say that they did know of the danger. Defenders would have to come up with evidence that they did not know of the danger and I do not think that they could do that. Although a post-mortem report with a histology report might say that mesothelioma was involved, defenders might deny that. They could be asked why they deny that and what their evidence is. The court would have the power to require affidavits and evidence for the judge to decide whether the defenders' position was genuine or sustainable.
You said that Lord Mackay could not adopt that approach because he was bound by the rules, so the rules would have to be changed to allow such judicial intervention.
The rules would have to change. When I have appeared before Lord Mackay, I have touched on those issues, and Lord Mackay has said that he is bound by the rules; he is right. The rules would have to change. A model of rules exists in the commercial court rules. It would not require much adaptation to translate those rules to personal injury cases.
Would you be happy to adopt the framework of the commercial court's rules?
Yes. Those rules might need to be examined more closely for commercial aspects of some rules but, in the main, the substance can be readily translated.
You said that 500 cases lie in the cabinets in your office and that another 1,000 are coming. How many cases have been settled?
Since when?
Since the issue arose.
Settlement is reached only when a hearing approaches. I can give the committee a good idea of the number. We have had 180 trials a year but, since the matter came up, only 180 cases may have been settled. However, the situation is a bit worse than that, because many cases that have come up for trial have been postponed because of extraneous factors, such as the cases of Fairchild and of Newalls Insulation. That has aggravated the low turnover of settlement.
Is it fair to say that at that rate of lack of progress, even the 500 current cases could wait years for settlement?
Yes. For the 500 cases that have reached the finalisation of written pleadings—I say that cautiously, because written pleadings can still be altered after that—we will not have a hearing until February or March 2003.
As you will probably have gathered, I am trying to underline the urgency of the matter. How many of the pursuers in such cases have died during the currency of their actions? I realise that you might not be able to provide that information off the top of your head.
Fatal cases make up about 50 or 60 per cent of the total number. That does not include the asbestos cases where the person affected is severely disabled. Since the petition was raised, I have settled only one case in which the person is dying with mesothelioma.
Will you advise us of the mechanics of the way in which we could change the system? If, as you have suggested we should, we go down the route of a judicially managed system—which, on the face of it, appears to have considerable merit—could that be done simply or would the process be much more complex? Would it result in our having to initiate legislation?
The commercial rules would be promulgated in regard to personal injury cases in exactly the same way—through an act of sederunt by the Lord President. I would be worried if there were to be a long period of consultation. Lord Cullen's report, which took several years, was not implemented. Lord Coulsfield's working group met in 1997 and 1998 and reported in 2000. It is proposed that only bits of that report be implemented. I am worried about having a long period of consultation and mulling over a third exercise, when the matter is extremely urgent.
I congratulate Frank Maguire on doing what I hoped the courts would have done—providing some automation and information that shows the scale of the problem. I find it incredible and astonishing that the courts did not realise that there were 500 cases and that it should take your action to bring that into the public domain. That is deeply disappointing; it represents a serious comment on the way in which the court system works.
In your opinion—this will have to be a personal estimate; it could not be anything else—how much are defenders spending, on average, on defending each case? How much would they spend if the rules were changed and we moved to a system akin to that of the commercial courts?
The settling of a case when one runs up to the door of a court always amazes me—the settling of the case even a week before would have saved a lot of money. When a defender settles a case, they have to pay our expenses and their own expenses. If the case is settled on the morning of the hearing, that will cost between £15,000 and £20,000. A judicially managed system would not incur such large costs. On the morning of a hearing one incurs, possibly, senior counsel's fees, junior counsel's fees, the solicitor's fees, the solicitor's fees in Glasgow and the cost of all the witnesses coming forward, plus all the costs that relate to the pursuer's side. The failure to settle a case on the morning of the hearing results in all that amazing expenditure. One can tell that there is a great deal of expense by multiplying all that out. If the case goes ahead, and a few days' evidence is heard, as has happened, the cost increases almost exponentially—expenses reach £30,000 or £40,000.
The problem is ironic, because under the liquidation of Chester Street Insurance Holdings Ltd, which affects the vast majority of the cases in question, the person will be paid only 90 per cent of their damages. When the liquidator pays a dividend of 5 per cent to the Financial Services Compensation Scheme or to anyone, that is all eaten up by the legal costs for the defence. That results in the ironic situation of the pursuer in effect paying for the legal costs for the defence.
I have done some quick, back-of-an-envelope calculations. By that reckoning, the money that is being wasted through the existing process, which is being paid, in essence, by the people whose interests you represent—the people whom the committees want to help—is of the order of £3 million to £7 million each year. That money could otherwise be being paid to the victims.
It is worse than that. If you take into account the amount of judicial time and administrative staff time that is taken up with dealing with written pleadings, motions and all the associated procedure and the fact that the judges are not available to deal with other cases, the costs go up a great deal.
So, based on my quick calculations, by the time that the 1,500 cases have been dealt with—and I acknowledge that you suggest that there are many more still to come in—the sum arising from the time that the defenders waste on unnecessary activity could be between £25 million and £40 million?
That could be the case.
I assume that the vast majority of the cases receive legal aid.
No. The legal aid system is restrictive and many clients are not eligible for legal aid. The Scottish Legal Aid Board usually requires corroboration and often, as many of the clients' colleagues have died, that is not available. Many cases are conducted on a no-win, no-fee basis. It is possible to get insurance cover for such cases, but I do not know for how long that will remain the case. The client pays the insurance company a premium, which is not recoverable from the defender, although perhaps it should be included in the judicial expenses.
If the case is settled at the door of the court, surely the fact that such expenditure has been incurred should be reflected in the amount of the settlement. Obviously, in such a circumstance, the case would not have gone to court, but would it be appropriate to claim the amount of the pursuer's expenses?
The pursuer's expenses are claimed, but only in a tabulated and restricted form. It is not possible to cover the pursuer's full expenses and you are not allowed to claim for insurance expenses. Furthermore, because it is normal for cases to be settled on a Tuesday morning in that manner—that is simply the system—you cannot claim for expenses for all the bother that has been caused.
In England, the insurance premiums and success fees are recoverable. If a defender defends a case up to the hilt, thereby causing expense, they must meet the cost not only of the outlays in the case but of the premium that the person has paid to an insurance company, thus minimising the expense for the client.
I should mention that some cases that I deal with are trade-union assisted. Money may come from three sources: legal aid, although only in a few cases; insurance companies; and trade unions.
I might be being naive, but I would be grateful for an explanation. We know that a lot of the problems have been caused by the fact that the Iron Trades Insurance Co and its successors are in liquidation. Supposing that a magic wand were waved and all the cases were settled next week, where would the money come from?
The matter of the money owed by Chester Street Insurance Holdings when it went into liquidation has now been resolved. Last week, the Secretary of State for Scotland informed me that the people concerned will receive cheques for the money that they are due. Ninety per cent of that money will come from the financial services compensation scheme, apart from money for the gap that exists for the time between January and December 2001, which will come from the Association of British Insurers. I met representatives of the ABI and the FSCS, who told me that the cheques would be paid immediately. I am grateful to the Secretary of State for Scotland for her intervention in the matter.
I welcome to the committee Des McNulty, who has a strong interest in this matter. Would you like to ask a question, Des?
I am grateful to the Justice 2 Committee for dealing with this petition with the seriousness that it deserves. There are two important dimensions to the matter. Frank Maguire has talked about the legal dimension. The other dimension is the human one, which is concerned with the impact on people of the lengthy process. If we fictionalised this, no one would believe it. I am thinking of Jarndyce v Jarndyce—the single case of legal obfuscation—in Charles Dickens's famous book. Frank Maguire is telling us that many people and their families are stuck in the same legal trap.
I have two questions about the legal process. First, does the method of handling such cases in England deliver the money to people significantly quicker than in Scotland? Is there a possibility that Scottish claimants could be disadvantaged because the circumstances keep changing and because of delays in the Scottish courts?
Secondly, by how much could the process be speeded up, given a change in the rules? If there were a change in the rules, how long would it take to deal with the outstanding cases of which you are aware? You have given us an indication of the present rate of dealing with cases. If there were a favourable change in the rules, how much would the process be speeded up and where are the fault lines?
There is a lack of parity between a Scottish claimant and an English claimant. There is a faster track in England and we have a very slow track, which means that they are resolving cases faster than we are. The case in Newcastle that I cited is an example of the discrepancy between the two jurisdictions. There are also issues such as the Fairchild judgment, which are germane to both England and Scotland and which delay cases.
Lord Coulsfield proposed a hearing in 12 months' time, but the commercial court, as can be seen from Paul Motion's letter, has suggested hearings within six months or even 12 weeks. There is more that we can do. One idea might be to prioritise some asbestos cases. All the cases are important and urgent, but there are some cases for which hearings might be prioritised, such as those where someone is dying of mesothelioma or a widow is waiting on damages because someone has died of mesothelioma. For example, for the live mesothelioma cases, a judicially managed system should aim to have a hearing within two or three months because the person has only 12 to 14 months to live and they need that money early on in their condition.
The system would be judicially managed and there would be an initial period of six months during which the ground rules would be set—in other words, the attitude of the court would be made known. Therefore if someone came forward with a case saying that John Brown's were not negligent and got short shrift, there would be no point coming back and trying to say that again. The initial period would be difficult, but after that things would get easier and we would begin to get to the real issues.
The time scale can be speeded up greatly, but a few things need to be added into that. As Lord Coulsfield mentioned, it is ironic that the court is on vacation for two and half months during the summer. A lot could be done in that time. I mentioned the commercial court recommendations of 12 weeks to six months. There are three judges dealing with commercial cases. I have not checked, but I wonder whether there are the same number of commercial cases as asbestos cases.
Lord Mackay is doing everything that he can to get to grips with the cases. It was not Lord Mackay's problem that the cases were not identified. Lord Mackay and the system need more resources, such as additional judges earmarked for asbestos cases and, most important, back-up staff for the court. The court is doing everything it can with the case management and the data system, but it needs back-up, including information technology back-up.
We must address the problems that have to be dealt with. Let us get the system going. If the system is not working, we should alter it and ensure that all those problems are dealt with. The first thing is to ensure that a judicially managed system is in place. Ancillary matters, such as the two-and-a-half-month vacation, must be dealt with and there must be targets for hearings in urgent cases. There must also be IT back-up, the seeds of which are in the database that I have given to the Court of Session. We also have a judge who is becoming well acquainted with the specific cases and who needs judicial assistance and staff support.
I am grateful for that clarification, but I have one further question. I understand that Lord Coulsfield and his colleagues are concerned that moving over to a new procedure might encompass a series of different kinds of cases. In other words, there might be difficulty in separating out asbestos cases from other cases, which it could be argued might benefit from a similar procedure. How could we identify asbestos cases, and on what basis could they be taken forward in the special fast-track procedure that you propose?
We have already done that exercise, as we have now identified all the asbestos cases in the Court of Session. That is the database that I have given to the court. That database involves other agents as well as Clydeside Action on Asbestos. The court now has a full record of all the cases to do with asbestos, the type of condition in question, the defenders involved, the defenders' agents and what stage each procedure is at. We already have all the information and all the asbestos cases are identified. Whenever we commence a new action, it is detailed as an asbestos case on the front of the writ, so any new actions are immediately entered into the database. There is no problem with identifying asbestos cases.
In regard to other cases, I would not like to hold up a very urgent problem to find out whether there are any other cases that are similarly urgent. We have identified that point. If we get ahead with the system that I propose for asbestos cases, that would break the ground and move forward so that the system could be translated across to other categories of cases. I do not want to hold up asbestos cases because there may be other cases. We have identified asbestos cases and have already proposed a system for dealing with them. We can now go ahead with asbestos cases, which have particular problems.
I have a very quick question, which my rage at your previous answer made me forget. What is the average pay-out when cases are settled?
For a mesothelioma case, if the person is alive, we are getting something like £100,000 to £120,000. If there is a financial loss, particularly for a younger pursuer, who might be 40-odd or early 50s, the figure might hit £250,000 for a mesothelioma case. If the person dies, there will be additional claims for the widow and children. Another irony is that it is of no financial advantage to the insurers to let a pursuer die, because the case just gets bigger for them. I never understand why the insurers do not fall over themselves trying to settle a live mesothelioma case with me, and instead let the person die. That can increase the claim by as much as £50,000 to £60,000.
Lady Paton recently awarded £40,000 to someone who had severe asbestosis. There are also what are known pleural plaque cases, where there is evidence of asbestos in the lungs. Although it may not be causing any disability, there is at least a risk of getting one of the more serious conditions. For such cases, there might be awards of £5,000 with a reservation to come back or £10,000 with no such reservation.
Having said that, Clydeside Action on Asbestos and the Clydebank Asbestos Group are not happy with that level of awards, because the present system denies cases a jury trial. The group would like to find out what a jury would make of someone who is dying of mesothelioma. That might reflect more accurately the values of society and what society thinks that the award for someone who is dying of mesothelioma should be.
Are you saying that we could have an asbestosis case in which £40,000 is paid out to the victim and the legal costs also approach that figure?
The legal costs will exceed that figure.
So the potential exists that more money is going to the lawyers who defend such cases than to the victims.
I think that there are more legal expenses anyway. The case that Lady Paton heard lasted for five days. No one is disputing that the defender should have defended it. They said that it was not asbestosis and it was, but we are not saying that they should not have done that. The total expenses for that five-day case—the pursuer's expenses, the defender's expenses and counsel's expenses—will exceed £40,000, not counting the judicial time and the administrative staff time that was necessary to deal with the case.
If the Parliament cannot help to solve the problem, we fail real people.
From what you have told the committee this morning and in correspondence, it is shocking that the issue has not been resolved yet, particularly when the commercial court provides a model—which you cite—that could be adapted. Do you have any views on why resolution has taken so long and why there has not been a stronger response to the shocking problem?
I do not think that the courts realise that the problem exists. That is obvious from their thinking that they have fewer than 100 cases. I think that the judiciary is—dare I say it—reluctant to get involved in judicial management. That certainly does not apply to all the judiciary, but there might be some resistance. It is interesting that Lord Coulsfield's report, which was a case of lawyers trying to identify problems with civil justice, did not deal with skeletal defences at all. It did not deal with the cases; it did not deal with the issue. It did not identify skeletal defences as a problem.
Had you been raising the issue of skeletal defences in written pleadings at that time?
The working party on Court of Session procedure includes defenders' lawyers, pursuers' lawyers and judges. We therefore end up with the lowest common denominator. Although we complain about skeletal defences, the working party disagrees with us. Skeletal defences were not deal with in Lord Coulsfield's report. The report did not agree with judicial management either, as I said earlier, because the working party thought that personal injury cases were routine. We are not getting anywhere with Lord Coulsfield's report.
I realise that we have not touched on a number of issues that you are also concerned about. I will flick through a few of them and let you respond in the limited time that we have left. You make strong representations in the petition about the unavailability of judges and being unable to get a jury trial, which you feel is important. What are the rules on getting a jury trial? How is a decision made on who gets one and who does not?
The court will consider the written case and not look beyond that. If it sees, for example, a written case for a road traffic accident in which car A bumps into car B and a person ends up badly injured, it will consider that to be a straightforward case that a jury can understand in terms of liability—whether the driver was exercising reasonable care when they went into the back of the van in front.
When the court considers an asbestos case on the written pleadings, it sees a long document about events that happened many years ago concerning asbestos and the level and circumstances of exposure to asbestos. It also sees narrated in the document a long history of HM inspectorate reports and various other reports that show why the inspectorate should have known about the problem. It then sees shipbuilding and ship repairing regulations, asbestos industry regulations and statutory provisions under the Factories Act 1961. It also sees a big part on the quantification of the case.
On the basis of that, because all the issues are still live, as it were, the court would say that a jury cannot understand how the statute is applied and cannot understand level of exposure to asbestos. Our problem is that, notwithstanding the fact that the defenders will not defend on that basis, the matter depends on the written pleadings. If there is a special cause—in other words, if the matter is complex—there cannot be a jury. The decision on whether to have a jury is made on the basis of the written case. We are saying that that question should be decided on the basis of the real issues, not on that of the stated issues in the written case. Does that answer your point about juries?
So you are saying that we would have to sort out the system first.
Yes.
There would then be a focus for the dispute, and you would expect that more decisions to have jury trials would then be taken.
Yes. When we translate the commercial rules into personal injury cases, that will make a difference. Commercial cases do not have jury trials and probably do not want them, whereas personal injury cases would demand jury trials. There would have to be some mechanism in the rules to allow someone to get a jury trial.
What evidence do you have that jury trials might give a better settlement?
I have the evidence of the court itself. There was a recent judgment on a jury case that awarded four times the award that the injured person would have been given by a judge. As members will see from the petition, I have mentioned various cases where the Inner House of the Court of Session, the court of appeal, has itself recognised that a jury would give a higher award. It would certainly give a higher award for pain and suffering, which would be the most personal aspect, and the one that would echo most with a jury. A jury might not do so, however, when it came to financial losses and complicated actuarial calculations. All that we are asking for is to have the option to have a jury. Not every case will go to a jury.
We have received a letter from the Association of Personal Injury Lawyers—APIL. It has written to us on the back of your petition on a number of occasions about the Prescription and Limitation (Scotland) Act 1973. Is that legislation related to the issue covered in your petition, and do you think it important to address its provisions?
I think that it is. One of defenders' main defences is on the basis of time bar. Defenders are always looking for complainers' medical records and examining our clients to find out their condition and the date when they knew about it. It is three years from that date when they must commence proceedings.
APIL highlights the very strict interpretation on the lack of discretion. Discretion can be exercised, but the courts are effectively exercising discretion in a very narrow way. For example, there was a case, Little v East Ayrshire Council, of a man who simply thought that he had gone deaf and did not suspect that it had anything to do with his job. The court held that he should have found out whether his deafness was caused by his work. That indicates a strict interpretation.
Sometimes people in asbestos cases are told that they have pleural plaques. Often their doctor may say, "Look, it's nothing to worry about. Nothing's going to happen because of it," and the person just goes away. Defenders might come along and fasten on to the fact that the person has pleural plaques and say, "You knew you had an asbestos condition more than three years ago. You should have commenced proceedings earlier." That interpretation causes a problem in delaying cases.
The requirements on the pursuer regarding their condition are so strict that, if those are compared with the requirements that are allowed for delays in court, there seems to be a bit of a double standard, which I find somewhat ironic. In support of what APIL has said, I would say that the time bar is an important issue, and has perhaps been applied too strictly by the courts.
Do you have a view on pursuers' offers?
Yes, I am worried that pursuers' offers are viewed as being the answer. They are not, because the pursuer also wants an admission of liability. Pursuers' offers are based on what a judge would award—and that again begs the question of what the award would be if there was a jury. I do not think that pursuers' offers should be seen as an answer, but they may be a useful tool. For example, in a live mesothelioma case, I might say that, for the interest of the client and with their agreement, we will settle a case at £120,000. If the defenders did not settle that case at that figure, a penalty would be attached to that.
However, having regard to the costs that would be run up anyway and their being willing to settle a fatal case, I do not think that a penalty and expenses would be much of a deterrent on pursuers' offers. Nonetheless, I would agree with pursuers' offers being put on to statute, provided that there was a good penalty to it, although that is not the answer.
Might there be some merit in initiating some of these actions in the sheriff court, bearing in mind the fact that there is a high settlement rate and the fact that the cases do not go to trial? That might be a more expeditious way of dealing with them.
Professor Hennessey suggested that, but I do not think that that would be the case. As I said, one of the great advantages is the fact that we have brought all the cases together before judges who are becoming specialists—especially Lord Mackay—in what we are dealing with.
The issues have been identified and there is a case management and IT system to back up the claims. If we allowed the cases to go to every sheriff court in the land, they would be dissipated. They would be handled in Dingwall, the Borders, Glasgow, Oban and everywhere. It would be difficult to control the cases, as not every sheriff—through no fault of theirs—would have the experience that many Court of Session judges have. The number of personal injury cases in sheriff courts is small compared to the number of such cases in the Court of Session.
The sheriff courts deal with family cases and criminal cases, among other things, and it would be questionable whether they would be able to grasp the issues. Would they be able to liaise on the issues? Would they know what one another was doing with regard to certain issues? I would be against the idea of dealing with the cases in the sheriff courts, because that would destroy what we have already got, which is a great deal.
The other thing—which is fundamental—that is missing from the sheriff courts is the juries. There are no jury trials in the sheriff courts. We would be giving up completely the idea of having a jury trial. Also, the appeal system is different. An appeal against a sheriff court judgment has to go to a sheriff principal, then to the Inner House. An appeal would take longer than it does in the Court of Session. Clydeside Action on Asbestos wants the cases to be dealt with in the Court of Session. We have achieved much and we can push the cases further forward in getting a commercial-type procedure in place, in getting jury trials in the Court of Session and in having a consistent approach from specialised judges in the Court of Session who liaise with one another and discuss matters.
We must conclude on the last issue that you will want to tell the committee about: the impact of the Fairchild decision and the pending appeal. If there are any other issues that you would like to mention in concluding, you may do so. I assure you that this will not be the last word on the issue.
We have dealt with the procedures and acknowledged that they might not be assisting the progress of cases. The Fairchild case is paralysing all the cases. The plaintiff in that case was exposed to asbestos from more than one source, as happens in most cases. The court in England ruled that, because it could not be proved which fibre caused the injury—that is, the court could not identify who was culpable—the case could not succeed against anyone. That was a surprise judgment in the High Court in England. We thought that the House of Lords authority on it was quite clear, but the Court of Appeal has upheld that judgment.
The judgment is now before the House of Lords for its decision. The Court of Appeal judgment was that the lower court was right and that it was a matter for legislation. We are worried that the House of Lords will reach the same conclusion as the Court of Appeal, which would mean that no asbestos case would succeed. We are also worried that, no matter what it says, the House of Lords will not settle the issue. There was clear House of Lords authority on the point for many years that the defence somehow managed to get round, and that authority would be dependent on the facts before it.
In other words, the House of Lords can draw the principle only out of the facts that are before it. The House of Lords may first of all come up with a judgment that upholds that of the lower court—which would be a disaster and would necessitate legislation anyway—but it may come up with a mixed bag. There may be a confusing judgment or a judgment to which someone can latch on for other cases. In years to come, someone else may find on different facts another way around things.
I have put a draft bill before the committee that I have somewhat pretentiously called the civil liability (asbestos) (Scotland) bill. It is short and would cure the problem. It says what the law and the House of Lords have always said. If someone materially increases the risk of something happening that relates to asbestos, that person is liable. In other words, if an employer such as John Brown's of Clydebank exposed someone to asbestos and Yarrows Shipbuilders also did, both would have increased the risk of the person getting mesothelioma and would therefore be liable for damages. We do not have to get into esoteric and artificial questions about which fibre caused what—those are impossible to answer.
To reassure asbestos victims, I ask the committee to consider urgently the draft bill and get it passed at some stage. It should be passed in case the House of Lords does not come up with a satisfactory judgment. The Irish jurisdiction has a similar act that is based on similar principles, which is interesting. Only the Scottish Parliament can deal with the matter—it is not reserved. It relates to causation in Scots law. The draft bill readily deals with the problem once and for all and we will not be left to deal with another set of circumstances next year.
There is another case at Liverpool county court in England on pleural plaques, which will be appealed up through the system. The contention is that one cannot even establish that pleural plaques were caused by the defender where there is more than one source. Even if the House of Lords judgment overturns the Court of Appeal judgment, there will be another approach from defenders. They will say, "He is liable. I am not." However, we should simply say, "If you materially increase the risk, you will be liable and that is the end of the matter." We will then get down to what the law has always been.
Is that a fair explanation, convener? Lawyers can sometimes be somewhat technical.
Yes. We have to stop there. You have been clear and your evidence on a complex matter is extremely helpful. I thank both witnesses for their input and evidence.
On behalf of Clydeside Action on Asbestos, I thank the committee for giving its time to consider the issue. That is appreciated.
I will allow a few minutes for the committee to dwell on the evidence. I am sure that members will agree that we should determine urgently whether we wish to take the matter further. We have dealt with it for some months and the more that we hear about it, the more shocking it becomes that there has not been a stronger response.
I welcome many of the approaches, particularly the introduction of the procedure under Lord Mackay, but it seems that there is still a piecemeal approach. I do not think that there has been a proper explanation of why the model of the commercial court cannot simply be used and imposed for cases that seem to be extremely urgent.
The note that members received from the clerks sets out a range of options. It is open to the committee to decide whether it wants to progress with any of those options or to do something else.
As members have heard, a number of complex issues have arisen. There is the response to the Fairchild ruling and the potential for legislation; the matter of the Prescription and Limitation (Scotland) Act 1973 on time barring; and what we have heard from Frank Maguire this morning on the urgent matters that have to be dealt with—in particular, in relation to written pleadings.
I feel that we should demand action as soon as possible. We have various options. We could ask for a meeting with the Minister for Justice. We have agreed to call the Lord President to discuss this issue and get a response to what we have heard today. Urgent action to address the issue is needed.
Clearly we must act because there is very real injustice here, which cannot be allowed to continue. However, a dual approach may be necessary, and I do not feel in a position to make a determination on that today. The implications of the Fairchild ruling are far-reaching and have the potential to be extremely damaging to litigants both north and south of the border. We have to consider how those implications could be eased by means of legislation. However, I am not satisfied that what Mr Maguire has presented today is the overall answer. We have to legislate on a much wider basis. Mr Maguire's suggestions would go some way towards resolving the problems of asbestosis sufferers, but the issue goes far wider. Protection would have to be provided for other litigants too.
I will wish to research further, but I am attracted to the idea of recommending that the Lord President consider an act of sederunt to tighten up the procedures considerably. I cannot make any recommendations to the committee today on how we should proceed, but I am clear in my mind that we have to do something. The situation cannot continue. It reflects very badly on our legal set-up that the issue has gone on for so long, with so many people undoubtedly suffering through a lack of action from our courts.
We have the option of putting this matter on the agenda of our next meeting and, before that meeting, having a note prepared containing a summary of what we have heard today.
It would be useful to have the Lord President come and talk to us on this subject and for us to examine the ways in which he might be able to make progress, including an act of sederunt if that would be an appropriate way of bringing the efficiency and effectiveness of commercial court procedures to personal injury cases.
We should make it clear that, if the Executive cannot find a way of dealing with personal injury cases in general, we are not at this stage ruling out the option of proceeding solely and quickly on the basis of a bill such as the one that Frank Maguire has proposed. I say that partly to ensure that we maintain pressure on this issue, but partly also because I am genuinely prepared to push this issue on behalf of victims of asbestosis if that is the only way forward.
I am sure that there will be a committee solution to this.
I agree almost entirely with everything that Stewart Stevenson said. It is now almost 10 months since we first considered this petition. It is not that we have not been doing anything, but we keep going round and round. Everyone acknowledges that this is a serious problem, but we are struggling to find the most appropriate solution. We must apply the maximum pressure possible—whether on the Lord President or on the Executive, I am not entirely sure—but I feel that the twin-track approach that Bill Aitken and Stewart Stevenson suggested is exactly the way to proceed. Otherwise, we might sit for a further 10 months trying to work out the best solution. We have taken a considerable amount of evidence on this subject and it is about time that we began to act more proactively.
I associate myself with what other members have said. Scott Barrie made an important point, but we have not yet grasped the solution that is required to make progress on the issue. We need to hear evidence from the Lord President and the Executive's justice department about possible solutions.
However, the committee has a huge work load. I am not sure whether the decision has been taken about which committee is to take on the Criminal Justice (Scotland) Bill, but I understand that the bill might come to us. If that is the case, I am concerned that, in 10 months' time, we may still be saying that something must be done about petition PE336, but that we will not have reached a conclusion.
I support option A in the clerk's paper, which is to appoint reporters to pursue the matter more quickly. If we rely on committee time, the issue might drag on into the summer. I support the appointment of reporters, who would undertake intensive work over a two-week period, after which we could take further evidence.
We have to conclude. It has been helpful to hear members' views on the subject. Scott Barrie rightly said that we have worked on the matter for 10 months. We have done so and two reporters have worked with the clerks to pull together the extensive note that we have in front of us, which enables us to focus on the issues for action.
We are clear that, as a committee, we want to take action. George Lyon rightly pointed out that the committee has a heavy work load—that has always been the case. Although we have a heavy agenda, it is a measure of the importance of the subject matter of petition PE336, and the urgency with which we wished to deal with the petition, that we agreed to fit it into our agenda.
Based on what members have said, I propose that we adopt the concept of a twin-track approach. We will draw up a narrow focus for points of action, which will include suggestions from members, including George Lyon, about calling in the Minister for Justice and the Lord President. We will look at the Official Report to see what the petitioner has said about what needs to be done. At our next meeting, we will allocate about 15 minutes to decide how we wish to proceed. Are we agreed?
Members indicated agreement.