Betty Sophia Smith Ferguson And Others Against J & A Lawson (joiners) Limited
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Bonomy,Lady Smith |
| Judgment Date | 15 October 2014 |
| Neutral Citation | [2014] CSIH 82 |
| Court | Court of Session |
| Docket Number | PD904/12 |
| Published date | 15 October 2014 |
| Date | 15 October 2014 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2014] CSIH 82
PD904/12
Lady Paton
Lady Smith
Lord Bonomy
OPINION OF THE COURT
delivered by LADY PATON
in the cause
BETTY SOPHIA SMITH FERGUSON and others
Pursuers and respondents;
against
J & A LAWSON (JOINERS) LIMITED
Defenders and reclaimers:
Act: Anderson QC, Christine; Drummond Miller, Edinburgh
(for Peacock Johnson, Glasgow)
Alt: N R Mackenzie; Brodies LLP, Glasgow
15 October 2014
Time‑barred mesothelioma claim: section 19A of the Prescription and Limitation (Scotland) Act 1973
[1] The late Kenneth Ferguson was born on 21 May 1934. He came from Aberdeen and appears to have spent most of his working life there. It is averred that from January 1968 until January 1973, he was employed as an apprentice joiner by J & A Lawson (Joiners) Limited, Aberdeen (the defenders). In November 1973, the defenders ceased trading. From 1973 until 1980, Mr Ferguson was employed as a custodian by M & N Educational Enterprises Limited, known as the American School of Aberdeen.
[2] In early 2006 Mr Ferguson had a persistent cough. He was diagnosed as suffering from mesothelioma. In June 2006 he instructed Messrs Thompsons, solicitors, to act on his behalf. He told them that he had suffered exposure to asbestos during his employment. He named two potentially relevant employers, Lawson’s of Milltimber and the American School.
[3] Messrs Thompsons began investigating those employers, both of which had ceased to exist. Inquiries were made of HM Revenue and Customs (HMRC), and Companies House. On 7 August 2006, HMRC advised that Mr Ferguson’s employer for the period 1968/9‑1970/71 and part of 1971/2 was “J & A Lawson”. There was, formerly, a company of that name based in Edinburgh. On 18 August 2006 a Companies House report on “J & A Lawson (Joiners) Limited” was obtained. It was noted that the company had been incorporated on 9 September 1968 with a registered office at 1 East Craibstone Street, Aberdeen, and had been dissolved on 28 May 1985. On 22 August 2006 Companies House advised that the company records relating to J & A Lawson (Joiners) Limited had been destroyed.
[4] On 31 August 2006, Mr Ferguson died. His family sought to raise an action of damages in respect of his death. Messrs Thompsons, solicitors, continued to act. Investigations relating to his employers and any insurance cover continued. Inquiries were made of HMRC, Companies House, the Association of British Insurers (ABI), the National Archives of Scotland, Messrs Simpson & Marwick solicitors, Messrs J & G Collie solicitors, private investigators, the Employers’ Liability Tracing Office, and others. Defunct companies including “J & A Lawson” and “J & A Lawson (Joiners) Limited” were traced. On 1 October 2006, the ABI advised that no employers’ liability insurance had been traced, and that they could not assist further.
[5] At a later date, Messrs Thompsons sent a letter to Messrs J & G Collie, solicitors, whose address at 1 East Craibstone Street, Aberdeen, had been the registered office of J & A Lawson (Joiners) Limited prior to its dissolution. The letter was dated 12 February 2009, and was in the following terms:
“Dear Sirs
OUR CLIENT: THE LATE MR KENNETH FERGUSON
EMPLOYER – J & A LAWSON (JOINERS) LTD
We act on behalf of the family of … Mr Kenneth Ferguson in respect of his asbestos related lung disease and exposure to asbestos during the course of his employment.
The late Mr Ferguson was employed by J & A Lawson (Joiners) Ltd from 1968/69 to 1972/73 and was regularly exposed to asbestos. We note from the company records that you were the Company Secretaries of this company, although we note that it was dissolved in 1985. We are trying to trace Employment Liability Insurers for the company during our client’s employment and wonder if you are able to help with this.
Do you know the names of current or former insurers or insurance brokers? If you do not know, we wonder if you know the names of any former directors of the company that would be able to help …”
[6] Messrs J & G Collie replied by letter dated 18 February 2009 as follows:
“Dear Sirs
J & A Lawson (Joiners) Ltd
Your Client – The Late Mr Kenneth Ferguson
We refer to your letter of 12 February 2009.
Unfortunately, our files relating to this client have long since been destroyed and there is no‑one here who was around between the relevant dates who might recall any details.
We regret therefore that we are unable to assist you …”
[7] In a note dated 6 July 2009, Messrs Thompsons recorded that matters were still unclear. There was a suggestion inter alia that J & A Lawson (Joiners) Limited should be restored to the Companies Register (although not every partner in the firm agreed that this course of action was appropriate). The time bar was expressly noted to be “30 August 2009”, and emphasis was placed on the urgency of matters. By letter dated 17 July 2009 a solicitor advocate was instructed to prepare the necessary petition.
[8] The petition was presented to the court. The company was restored to the register on 26 August 2009. Meantime on 21 July 2009 an investigator, instructed by Messrs Thompsons, reported that no trace of any relevant insurer could be found on any database to which he had access.
[9] A witness for the pursuers (Ian Porter) had called at Messrs Thompsons’ office, and had been precognosced. He said that he and Mr Ferguson worked together “for the firm of J & A Lawson, Joiners, Beaconhill Road, Milltimber, Aberdeen”. He was able to describe the conditions in the workshop in which, according to the precognition given by Mr Ferguson, the latter did some work, although the majority of his work appeared to be out‑of‑doors. A summons was drafted. The conclusions totalled £750,000. Per incuriam, as a result of an error in the instructing letter, the first defenders were named and designed in the summons as “J & A Lawson Limited [not J & A Lawson (Joiners) Limited] 1 East Craibstone Street, Aberdeen”. The second defenders were named and designed as “M & N Educational Enterprises Limited, 28 Bury Road, Newmarket CB8 2BT” (hereafter “M & N”).
[10] Messengers at arms, Messrs Scott & Co, served the summons (referred to by counsel as “the first action”) on 28 August 2009, i.e. a few days before the expiry of the triennium. They reported by letter dated 1 September 2009 as follows:
“We thank you for your instructions in the above case and as requested we have served the summons on the first defenders [J & A Lawson Limited].
Service was effected by depositing at their registered office at 1 East Craibstone Street, Aberdeen, being the offices of Messrs James & George Collie, Solicitors. On our initial attendance at the address, Messrs James & George Collie advised that they previously acted for J & A Lawson (Joiners) Limited who were dissolved in 1985. Apparently, the directors then traded as a partnership but both have since died. They claim to have had no connection with the first defenders, whose details we were unable to find on Companies House. As we were unable to contact your office during the late afternoon on 28th August, service was effected by depositing as instructed. On advising your office of service, we understand from your Debbie Morton that the first defenders have been restored to the company register …”
[11] The error in the summons relating to the name of the first defenders went unnoticed. The named first defenders (J & A Lawson Limited) did not enter appearance. So far as the second defenders were concerned, no effective service could be made on them, as 28 Bury Road was found to be a residence occupied by an individual who knew nothing about M & N Educational Enterprises Limited. Accordingly the summons did not call against the second defenders.
[12] Continuing investigations to discover whether there was any effective insurance cover for J & A Lawson (Joiners) Limited during 1968 to 1973 proved negative. On 1 October 2009, the ABI reported to Messrs Thompsons that no employers’ liability insurance had been found. In order to preserve the position, decree in absence was taken against “J & A Lawson Limited” on 6 July 2011. Subsequently, on 30 September 2011, the Employers’ Liability Tracing Office provided Messrs Thompsons with details of insurers for “J & A Lawson (Joiners) Limited” for the period 16 May 1966 until 16 May 1977. This information was new: it had previously been unavailable (for, as counsel for the defenders explained, the database at the ELTO changed and evolved from day to day, as matters came to light and the database was up-dated). The insurers were AGF. By e‑mail dated 7 October 2011, Messrs Brodies solicitors wrote to Messrs Thompsons stating:
“We’ve received instructions from AGF in the above matter. Their records suggest that they were on cover for J & A Lawson Limited from 16th May 1966 until the end of the alleged period of employment. I understand a letter of claim has not been intimated yet. If that is to come, can you send it direct to me? Equally, if the claim isn’t proceeding, can you possibly let me know?”
[13] Messrs Thompsons intimated the claim to those insurers, and on 10 October 2011 sent a copy of the summons to Brodies. On 9 February 2012 the same solicitor from Brodies, notwithstanding her earlier reference to the insured as “J & A Lawson Limited”, e‑mailed Thompsons stating: “My client did not insure J & A Lawson Limited” and in further correspondence observed that any claim against J & A Lawson (Joiners) Limited was time‑barred.
[14] On 14 May 2012, the “second action” was raised against J & A Lawson (Joiners) Limited (as the sole defenders). The defenders took a plea of time-bar, as the triennium had expired on 30 August 2009. The pursuers accepted that the claim was time‑barred in terms of section 18 of the Prescription and Limitation (Scotland) Act 1973, but relied upon section 19A of that Act.
[15] A preliminary proof on the question...
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