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Good morning and welcome to the 46th meeting in 2006 of the Justice 1 Committee. All members are present, so we have no apologies.
Good morning, and thank you for the opportunity to give evidence to the committee. I will ask Lorna Brownlee, who is the leader of the bill team, to make an introductory statement to set out the context of the bill. Lorna is assisted by Anne Hampson, who has also been working within the Justice Department on the bill. On my immediate right is Alison Fraser, who is a solicitor from the office of the solicitor to the Scottish Executive. Alison is the bill team's lawyer and gives legal advice on the bill. On her right is Bob Cockburn, who is the deputy principal clerk of session at the Court of Session. We asked him to be available to answer questions this morning because we are aware that some of the issues that arise from the bill relate to practices in the Court of Session and the way in which actions on mesothelioma are progressed. He can answer questions on court procedures.
The Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill is unusual in several respects. It is very short, and it was introduced to Parliament quickly, just 14 weeks after the Minister for Parliamentary Business announced that the Executive would introduce a bill on the matter. The bill will affect the small number of people who suffer from mesothelioma and their families.
That was a helpful and succinct summary.
Lorna Brownlee's introduction was detailed and helpful. She has probably answered my question already. I want to know about the development of the bill, including the implications of the Coulsfield report in the process. Would the witnesses like to add anything to what Lorna Brownlee has said already?
Part of the background to the bill is the campaigning that has taken place and the representations that have been made—not least to Parliament through Des McNulty MSP.
I would like to say something about that before we go any further. Claims are being settled more quickly as a result of the Coulsfield rules, but it was a report by the previous Justice 2 Committee, via Lord Cullen, that agreed a short procedure through Coulsfield. I do not know whether you were aware of that. The previous Justice 2 Committee specifically negotiated on the back of the Coulsfield reforms that mesothelioma sufferers only could apply to the court for a shortened procedure. My understanding is that one of the reasons why sufferers are coming through the queue more quickly is because the procedure is so much shorter.
There are two separate issues. The Coulsfield rules were developed several years ago—Lord Coulsfield received his remit in 1997. The rules are about tackling delays in relation to personal injury claims more generally, and not just mesothelioma cases. Therefore, the reforms of the procedures are actually quite separate from this legislation.
Perhaps you are not aware of this, but there are three issues. There is the legislation; there is the Coulsfield report, which started in 1997, although I do not know when it concluded—
In 2003.
Mary Mulligan and Margaret Ewing were involved at one point as reporters. Stewart Stevenson was also involved. Because the previous Justice 2 Committee was so busy at the time, it was agreed that Bill Aitken and I would do the negotiations with Lord Cullen. You will know that, at that time, there was a preliminary court that was run by Lord Mackay, with a specific agreement that mesothelioma sufferers could apply for a shortened process via the Coulsfield reforms. That is how that process came about.
That remains the case. It is still possible to seek acceleration of the procedure under the Coulsfield rules.
I seek clarification on an issue that Lorna Brownlee mentioned in her opening remarks. I heard her say that only one in a million cases of mesothelioma is not asbestos derived. According to the briefing that we have from the Scottish Parliament information centre, the Health and Safety Executive states that there is a known exposure to asbestos in 80 per cent of cases. I accept that that may be a different issue. The British Lung Foundation states that more than 90 per cent of cases of mesothelioma derive from asbestos exposure. One in a million is a rather different figure. Is the difference simply because the 80 per cent and 90 per cent figures are about cases in which we know of the exposure, so the point is not that there is no exposure in the other 20 per cent or 10 per cent of cases? Is it the medical view that only one case of mesothelioma in a million involves no exposure to asbestos? The figures from the British Lung Foundation and the Health and Safety Executive may not be in opposition to your figure.
Those figures relate to the totality of mesothelioma cases. The one in a million figure is one that I noticed on rereading the Fairchild judgment—their lordships used the figure in relation to cases that arise from a cause other than asbestos. I think that the figure means one in a million in the total population.
Oh. So, for clarification, the prevalence of mesothelioma in its various forms is one per million population.
No—the prevalence of mesothelioma in the population from a cause other than asbestos is one in a million.
So, in Scotland, we could expect there to be five cases of mesothelioma that are not related to asbestos.
That would be the logical conclusion.
At the peak rate of 2,500 cases, the five cases that we would expect—using the one in a million figure—that are not related to exposure to asbestos would be a small percentage. I am struggling to do the arithmetic.
It is 2.5 per cent.
No; it is much less than that—it is one in 500, or 0.2 per cent.
One important point about cases that are not a result of asbestos is that they do not arise from negligent conduct on anybody's part.
I was not going there. I was simply pursuing the medical issue. To be absolutely clear on the record, mesothelioma is almost never—but not never—derived from a cause other than exposure to asbestos.
Correct.
That is all that I wanted to know.
It would be helpful to the committee if you gave an outline of any discussions or progress on resolving the issues between the Administrations at Westminster and Holyrood.
The bill deals with an area of devolved law, but we have of course had discussions with colleagues in England, as they are interested in developments in the law in Scotland. There are no outstanding issues of policy between the Administrations in that respect.
The question really stems from the debate in the Parliament on 29 June on a legislative consent motion on the Compensation Bill. Are you saying that nothing in United Kingdom legislation will be affected by the bill and that there is nothing further on which we must consult Westminster?
That legislative consent motion related to the separate issue of joint and several liability. The Parliament decided unanimously that the legislative consent motion was the right way in which to proceed on that. There is no issue outstanding with Whitehall in relation to the matter with which the bill deals.
So there are no on-going discussions with Westminster about any way in which the bill would impact on reserved powers.
There are on-going discussions in Whitehall on ministers' general wish to improve the processing of claims from mesothelioma sufferers. For example, the Department for Work and Pensions has work in hand in relation to better handling of claims for benefits. A number of steps are being taken to improve matters for mesothelioma sufferers, but there are no issues outstanding between the Administrations.
Tom McCabe said:
That comment was made during an earlier debate. The background to that statement may have been health matters—possible treatments and so on.
I understand that the intention of the Compensation Act 2006, which was considered at Westminster, was to allow an individual who was claiming compensation to claim from one employer, rather than to have to have joint liability admitted. My father was in the shipyards, and it was extremely common for people to work for a number of different companies, depending on the stage that had been reached in building a ship. In those days a person could leave work on a Friday and start work with someone else on a Monday. They could be exposed to asbestos, as my father was, on a number of occasions. Under the 2006 act, people can proceed against just one employer and need not get all the employers to pool their liability. That is very important for mesothelioma sufferers, because it is difficult to get companies that no longer exist to admit liability.
There is a particular issue with mesothelioma as opposed to other asbestos-related illnesses, because it is accepted that mesothelioma is a one-exposure disease. A person may be suffering from the disease because of one event, although they may have worked in a number of places over a number of years. Because it is not medically possible to establish exactly when a person contracted the illness, it was extremely difficult—under traditional delict and damages law, impossible—for a pursuer who had a number of employers to prove liability against any of them. That gave rise to the Fairchild exception, which meant that there was no need to prove specifically that one person had caused the harm, when a range of employers were potentially responsible. However, the case of Barker v Corus, which followed that, raised the issue of joint and several liability. As a consequence, the UK Government, supported by a legislative consent motion in the Scottish Parliament, effected the reverse of that decision, to allow the pursuer to proceed and to obtain damages on a joint and several basis.
So that is the link between the two pieces of legislation.
Joint and several liability is the link. The legislative consent motion that was agreed to in June was about that. The bill relates to the same disease but addresses a different problem.
Indeed, but the issue of joint and several liability was a major hurdle for us to get over before reaching this point.
Indeed.
I want to focus on the response to the Executive consultation from the Association of British Insurers, which suggests that the alternative process of sisting could be used. In her opening remarks, Lorna Brownlee indicated that there have been only nine examples of that.
On costs, if the bill is passed, it could result in two court actions rather than one, depending on how the litigants conduct the litigation. One set of proceedings would be to resolve the dilemma, which the victim may wish to do before he or she dies. Then, because the solatium related to death would be finalised only on death, the relatives would raise a separate action. Therefore, one possible outcome is that there would be two sets of litigation, with all the consequences that that would have.
In any event, is it correct to say that the bill in no way removes any currently available approach, such as raising an action while the person is alive, sisting it and then continuing the action after their death? The bill merely creates an additional option for which there is, in my humble opinion, a strong case.
Yes. Rules are in place that allow such an approach to be taken and nothing in the bill would stop that option being pursued if that is what the parties chose to do.
Stewart Stevenson is probably driving at the so-called solution put forward by the insurance industry, which was that, rather than find themselves in the dilemma that people who are suffering from mesothelioma are currently in, someone could begin a case and sist it. Stewart Stevenson's question was about the cost to the court system if people pursued that route rather than the option that is before us in the bill.
I was asking about the costs to all parties.
If the process was agreed by the parties, a payment of interim damages was made and the court was willing to agree to the sist, I think that there would not be additional legal costs—certainly, the cost would not be as much as it would be if a separate action proceeded.
Is it your view that sisting might be a cumbersome way of addressing the problem?
I am not sure that I would go so far as to say that it is cumbersome. It is a way of proceeding. I do not know whether Bob Cockburn has any views on the way in which sisting is used in the context of the Coulsfield rules. I am not sure that I would say that it is cumbersome, but judges, who are sensibly driven by the rules to keep programmes on schedule, have not tended to encourage sisting.
It is a difficult question for us to answer, because essentially it is for the court to decide whether to grant a sist. It is certainly an option, but a lengthy sist is inconsistent in some ways with the ethos of the Coulsfield reforms, which is all about setting the end point right at the start of litigation and working towards that end point. If a sist was granted and took the proceedings beyond the end point that the court had set for the case, that might become a problem for the court. It is a matter for judicial discretion.
It would at best introduce a degree of uncertainty into the process, in that you could not second-guess what the decision of the court would be in any particular case.
Yes. That is fair.
That is the risk that arises.
The Forum of Insurance Lawyers, in its response to the Scottish Executive's consultation, argued that the consultation was predicated on an incorrect premise. The forum said that the victim does not, by accepting any damages, prevent his family from claiming for non-patrimonial loss. How do you respond to that?
There are a number of aspects to that. To a certain extent, our response is the answer that Lorna Brownlee gave earlier. The proof of the pudding is in the eating: interim damages are not used to any significant extent at present and, if they were a good way forward, we might expect them to be used a little bit more.
That is interesting.
In her opening statement, Lorna Brownlee referred to the Executive's decision not to include a power to extend the bill's provisions to any other conditions. I ask her to say a little more about the basis for that decision.
Ministers wished there to be no doubt about the situations that might give rise to the use of such a power. Such situations would be similar to the situation in which people with mesothelioma find themselves. We took the view that if any condition was going to emerge that arose from negligence, and on which the medical consensus as to cause and outcome would be as it is with mesothelioma, we would already know about it, because such things take a long time to develop.
I notice from the consultation that seven parties agreed that you should have the power. Did any of them mention anything that they thought could be encompassed within it at some point in the future?
Yes. Some parties mentioned asbestos-related lung cancer as a possible addition, which we considered because it was raised with us. However, as you might know, asbestos-related lung cancer is clinically indistinguishable from other lung cancers and probably about 3 per cent of lung cancers are attributable to asbestos inhalation. That puts asbestos-related lung cancer sufferers in a very different position from mesothelioma sufferers in relation to damages claims.
Do people with asbestos-related lung cancer go through the same procedure to claim damages?
I refer to the point that Paul Cackette made earlier. Next week's witnesses might be more able to answer your question. When we examined the cases that were settled in court over a period of 35 years, we found that lung cancer was mentioned in 58 cases. However, in all but two cases it was mentioned as a possible increased risk for people who had been exposed to asbestos. There were only two cases in which the person had actually contracted asbestos-related lung cancer.
You said that, if conditions to which the bill could be extended were going to emerge, you would know about them because of the time that they take to develop. However, we all know that things can change. If a condition developed that fell into the same category as mesothelioma, would further legislation be required, or is there another way of dealing with that?
At the moment, the bill is specifically on mesothelioma.
So if there was another condition, you would need to introduce another bill.
That is correct.
The bill will not apply to people who have already settled, but it will apply to cases that are currently going through the courts. If somebody's case starts to go through the courts today and they settle before the bill becomes law, will they have the right to claim retrospectively? Why did you decide that retrospective claims should not be allowed? In future, people will have the right to make claims, but a lot of people have already settled. They might think that the bill is unfair to them.
The answer to your first question is no. If someone settles before the bill becomes law, they will not be able to enjoy the benefit of the changes. There is a difference between cases that have been settled and cases that might be settled between now and the legislation coming into force. In the case of the latter, we expect that parties will not want to settle because they will know that the bill is going through the Parliament. If they are properly advised, people who are caught in that dilemma should be able to protect their position.
Okay.
I want to be absolutely clear about this. There is a degree of retrospection in the bill, but it is absolutely minuscule. If somebody settles before the act comes into force, they will not have the protection that it affords. Therefore, people who might be considering settling at the moment would be well advised not to reach final settlement before the bill comes into force.
Yes.
I am sure that the witnesses for next week's meeting will be able to tell you what they are doing about that, given that they will be dealing with on-going claims.
I understand. I just wanted the message to be absolutely clear that the degree of retrospection is not terribly large, which means that somebody who settles next week will not be afforded the protection of the bill. I want to ensure that people in that position know that that is the position.
I think that you said that many pursuers are delaying settlement in any case, because they know that that will benefit their families. I suppose that they will continue to do that, so that they can get the benefit of the bill.
They are delaying settlement for slightly different reasons. There will not be an impact on the 80 per cent who have resolved the dilemma in their own minds by delaying their cases anyway. The issue that has been raised comes into play only for those who decide that they want to proceed with their own claims.
It is fair to say that, given the Coulsfield reforms to speed up the system, on the back of the work of the previous Justice 2 Committee, there are more living pursuers in the system than there would have been previously. Under the pre-Coulsfield system many pursuers were not alive by the time their claims came to court, which is why we needed to speed up the system. Is it fair to say that because we have speeded up the system, more pursuers now have the difficult decision to make whether to pursue their own claim?
That is a fair point. Over the years, the courts have generally become more generous in the level of payments that they award in relation to relatives' solatium. The consequence of that is that, in purely financial terms, the dilemma for pursuers is greater, because by waiting they acquire more compensation. All those factors have to be considered together, but your basic hypothesis is correct.
I draw to your attention what the Parliament did under advice from Government advisers in relation to the Agricultural Holdings (Scotland) Act 2003. I refer to the backdating of the crossover from limited partnerships to short limited duration tenancies. In essence, it was concluded that it was proper to backdate to the point at which the policy intention was published. In a parallel way, do you think that it would be appropriate to backdate provisions in the bill to the date of its introduction, which is 27 September 2006?
In addition, I am aware that the provisions of the Leasehold Casualties (Scotland) Act 2003 came into force on the day that the bill was published, although I do not know what mechanism was used—perhaps there was a particular reason for that. That act is one of those gems, which I would be amazed if anyone other than Adam Ingram and I remembered.
I can speak only about the Agricultural Holdings (Scotland) Bill, which I worked on in a previous existence. I am aware of the backdating provisions that Stewart Stevenson mentioned, which were included because of the particular circumstances. As I recall, there were concerns that, in the period between the time of the Executive making people aware of its proposals and the time of royal assent, all sorts of behaviours would be undertaken that would circumvent—
Would the word "shenanigans" be appropriate?
It would not be for me to use such a word.
I think that Ross Finnie has used language that was not even as moderate as that.
Yes. It was a valid point and a reasonable observation.
A principle of the Agricultural Holdings (Scotland) Act 2003 was that it was not inequitable to make the date on which the act came into force the date on which the intentions behind it were published.
Indeed—and I certainly accept that the principle is not unprecedented.
We should perhaps ask others about this. It may be that no one comes into that category.
A final point that I would like to make is about certainty. It would be possible to allow for the reopening of cases that were settled between the date of introduction and the date of royal assent. We should not forget that there are serious policy reasons why breaking the principle of certainty of settlement in damages cases is a bad idea.
That would, of course, be the reason that we would want to allow retrospective provision—not to introduce uncertainty, but to make the provision available to people in the category, if there are any.
Under the bill, if a pursuer has settled a claim, the family can, on the death of the pursuer, go back to court a second time and make claims under other heads. The family cannot do that at the moment—unless, of course, the person delays their claim. Will the bill result in increased settlements from the defender?
We estimated that it would cost about £1.1 million, rising to £1.5 million, for the defenders to pay. We have to remember that 85 per cent of cases at the minute are being settled by relatives after the death of the pursuer, so it is only in the other 15 per cent of cases that increased costs will arise.
So that £1.1 million to £1.5 million is for the 15 per cent of cases that are not being settled in that way.
That is correct.
The panel said earlier that the evidence was that the trends of settlement in relation to solatium were increasing.
That is my understanding. To a certain extent, my evidence is anecdotal—it comes from speaking to personal injury lawyers—but the rates have been increasing over the years.
Is it also correct to say that the trend is also changing with regard to solatium settlements to sons and daughters?
As I understand it, the trend for claims both by widows and by sons and daughters has changed consistently.
Will demand for the bill's provisions eventually fade out? I realise that the SPICe briefing sets out some statistics on the matter, but I would like to get your response to the question on the record.
Are you asking whether demand will fade away after the number of mesothelioma deaths reaches a peak?
Yes.
That is the logical conclusion, but it will take quite a long time to reach that point.
What are your predicted timescales for that?
I am sure that the HSE would want me to stress that any projections should be treated with caution, but according to current projections the peak will be reached somewhere between 2011 and 2015, after which deaths will gradually decline.
Obviously we will hear from other witnesses on this bill, but do you have any feeling for the strength of opposition to this amendment to the 1976 act?
You will have seen the responses that we have received and, obviously, the submissions that you have received to your own call for evidence. The main points that have been raised with us, including the possible use of interim damages and the possibility of extending the provisions, have already been discussed this morning. One can certainly gauge from the responses the strength of feeling on this matter. It might be fair to say that, having seen what we have done in light of their responses, one or two of the respondents to your call for evidence have tempered their original comments. In any case, you have also seen SPICe's summary of the responses.
If we stick to the timetable, I see no reason why we cannot reach stages 2 and 3 before February or March. How long does it take for legislation to receive royal assent? A couple of months?
Under the Scotland Act 1998, four weeks must elapse after stage 3 before royal assent can be given. In general, if all goes well, royal assent is given four, five or six weeks after stage 3.
And the provisions would come into force the very next day.
They would come into force seven days later.
Do members have any other questions? I do not believe it; it is only 11 o'clock and we seem to have run out of questions. Stewart Stevenson predicted as much.
The Forum of Scottish Claims Managers has expressed concern about double accounting with regard to claims for wages and solatium and has suggested that, as the existing law is problematic, section 1(2) of the 1976 act be disapplied. Have those concerns been met?
There is no element of double accounting, because we are not disapplying section 1(3) of the 1976 act, which relates to patrimonial damages to relatives. Double accounting would happen if that were disapplied, as the victim's settlement takes account of the support payment that they will have received.
That is helpful.
Your clear and succinct evidence has helped our scrutiny of the bill. I thank you for appearing before the committee. We will raise various issues with our other witnesses at next week's meeting.
Meeting closed at 10:59.