Ab And Cd Against Transform Medical Group (cs) Limited And Travelers Insurance Company Limited
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2020] CSOH 3 |
| Date | 09 January 2020 |
| Docket Number | PD2787/14 & PD836/14 |
| Court | Court of Session |
| Published date | 09 January 2020 |
OUTER HOUSE, COURT OF SESSION
[2020] CSOH 3
PD2787/14 & PD836/14
OPINION OF LORD TYRE
In the cause
AB
Pursuer
against
TRANSFORM MEDICAL GROUP (CS) LIMITED
Defender
and
TRAVELERS INSURANCE COMPANY LIMITED
Minuter
and in the cause
CD
Pursuer
against
TRANSFORM MEDICAL GROUP (CS) LIMITED
Defender
and
TRAVELERS INSURANCE COMPANY LIMITED
Minuter
Pursuer: Smith QC; Thompsons
Defender: No appearance
Minuter: Dunlop QC, Welsh; Clyde & Co (Scotland) LLP
9 January 2020
2
Introduction
[1] These are two of a large number of actions for damages in which the pursuers are
women who underwent breast augmentation surgery carried out by surgeons engaged by
the defender (“Transform”), a cosmetic surgery business. The implant devices used were
PIP implants manufactured by a French manufacturer which is now insolvent. The
pursuers’ claim is for loss, injury and damage said to have been sustained as a consequence
of the implants having proved to be defective. The actions are based on breach of contract
and breach of statutory duty in terms of the Sale of Goods Act 1979. The same product has
been the subject of litigation under a Group Litigation Order (“GLO”) in the High Court in
London.
[2] Transform went into administration on 30 June 2015. It has not entered appearance
in the present action. Between 31 March 2007 and 30 March 2011, Transform carried
insurance against third party liability under policies issued by the minuter (“Travelers”). In
terms of the Third Parties (Rights against Insurers) Act 1930 (“the 1930 Act”, which because
of the dates when these claims arose is the applicable legislation), Transform’s rights against
Travelers under its contract of insurance are transferred to the pursuers as third parties to
whom liability has been incurred. Relying on the 1930 Act, the pursuers seek payment of
damages by Travelers, which has entered the processes to defend the claims.
[3] Prior to Transform entering administration, a dispute had arisen between it and
Travelers regarding the extent to which claims by breast implant patients, especially those in
England where the group litigation was under way, were covered by Travelers’ policies.
Transform had instituted a claim, known in England as a Part 20 claim, under what in
Scotland would be third party notice procedure, for indemnity by Travelers in respect of its
liability to claimants. That dispute was due to go to trial on 21 April 2015, but on
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