(first) Louise Docherty And Others Against (first) Secretary Of State For Business, Innovation And Skills And Another
| Jurisdiction | Scotland |
| Judge | Lord Ericht |
| Neutral Citation | [2017] CSOH 54 |
| Docket Number | PD2099/14 |
| Date | 29 March 2017 |
| Court | Court of Session |
| Published date | 29 March 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 54
PD2099/14
OPINION OF LORD ERICHT
In the cause
(FIRST) LOUISA DOCHERTY, (SECOND) VIVIEN DOCHERTY, (THIRD) JAMES PAUL DOCHERTY, (FOURTH) JULIE CASCADDEN, (FIFTH) CLAIRE DOCHERTY, (SIXTH) MAUREEN JULIAN, (SEVENTH) SUZANNE JULIAN, (EIGHTH) PAUL JULIAN, (NINTH) JEAN SHERWOOD, (TENTH) NICOLA TRODDEN, (ELEVENTH) MICHELLE TRODDEN, (TWELFTH) GEORGE DOCHERTY, (THIRTEENTH) GRAEME DOCHERTY, (FOURTEENTH) ALLIAN SKILLCORN, (FIFTEENTH) SHARON MAGEEAN, (SIXTEENTH) KATHRYN HEARNE, (SEVENTEENTH) HELEN MAGEEAN, (EIGHTEENTH) JOANNE MAGEEAN, (NINETEENTH) LAUREN MAGEEAN, (TWENTIETH) PETER DOCHERTY, (TWENTY FIRST) PETER DOCHERTY, (TWENTY SECOND) IAN DOCHERTY, (TWENTY THIRD) NATALIE DOCHERTY, (TWENTY FOURTH) MARTYN DOCHERTY
Pursuers;
against
(FIRST) SECRETARY OF STATE FOR BUSINESS, INNOVATION AND SKILLS
First defenders;
and (SECOND) IMPERIAL CHEMICAL INDUSTRIES LTD
Second defenders:
Pursuers: Marshall (sol adv); Thompsons
First defenders: Sheldon QC; Clyde & Co
Second defenders: Pugh; CMS Cameron McKenna LLP
29 March 2017
Introduction
[1] This is a personal injury action in a fatal asbestos case. There are 24 pursuers, all relatives of the late James Docherty who died on 30 September 2011. The first pursuer is his widow, as an individual and as Executrix Nominate on the deceased’s estate. There are two defenders namely the Secretary of State for Business Innovation and Skills as successors to the rights and liabilities of Scott’s Shipbuilding and Engineering Company Limited and Imperial Chemical Industries Limited.
[2] The late James Docherty died on 30 September 2011. This action was served on 29 September 2014, the eve of the triennium.
[3] In the case as originally pled, the pursuers all sought damages from the defenders jointly and severally under the Damages (Scotland) Act 2011. There was no dispute that the 2011 Act had no force in England. Nor was there any dispute that English law would deny a remedy to the pursuers with the exception of the first pursuer. The case called before Lord Boyd on the Procedure Roll on the second defenders’ plea that the case against them was irrelevant on the basis that the wrongs complained of occurred exclusively in England and accordingly the 2011 Act could not apply. There was no appearance before Lord Boyd by the first defenders: I was informed that this was due to inadvertence. In his opinion ([2015] CSIH 149)Lord Boyd noted that if the second defenders were correct, “it would mean that the second to twenty-fourth pursuers who have no claim in England for a tort committed in England cannot only bring an action for damages in Scotland but seek a remedy not available under English law.” (para [14]) He concluded as follows:
“Accordingly in my opinion the action as drafted against the second defenders is irrelevant. I intend to dismiss the action insofar as it is brought by the second to twenty-fourth pursuers against the second defenders. I would also propose dismissing the action against the second defenders at the instance of the first pursuer. However before doing so I shall put the case out by order to enable Mr Marshall to consider a minute of amendment to bring a claim under the 1976 Act and to deal with the question of expenses.” (para [15])
[4] On 18 November 2015, Lord Boyd allowed such a Minute of Amendment to be received, dismissed the action in so far against the second defenders brought by the second to twenty-fourth pursuers and dealt with certain matters of expenses.
[5] The first and second defenders lodged answers to the Minute of Amendment, and, after a lengthy period of adjustment by all parties, the case called before me By Order. In the meantime, Louisa Docherty had died so the first four paragraphs of the Minute of Amendment deals with the substitution of her executors.
[6] Paragraph 5 of the Minute of Amendment deletes in its entirety the claim originally made by the first pursuers. It replaces that original claim with a new claim for solatium (a claim for non-pecuniary loss in the form of pain and suffering and loss of amenity including loss of expectation of life in English law) and a claim for the care provided to the deceased by his family during his illness in terms of section 8 of the Administration of Justice Act 1982 (a claim for the reasonable value of services rendered to him gratuitously by members of his family in the provision of nursing care or domestic assistance rendered necessary by his illness in English Law) and for the funeral costs and a claim for loss of financial support for the period up to the death of the deceased’s widow.
[7] Paragraph 6 of the Minute of Amendment introduces an averment stating that the first pursuer’s claims as executors of Mr and Mrs Docherty were made under section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 and section 2 of the Fatal Accidents Act 1976. These acts apply in England but not in Scotland.
[8] The issue which arises is that although the original claim was brought within the triennium, the new claim set out in the Minute of Amendment was not.
[9] At the By Order hearing before me, the pursuer moved for amendment in terms of the Minute of Amendment and Answers, under deletion of certain averments made by the first defenders. The second defender opposed amendment. The first defender sought dismissal of the case against the first defenders and in any event opposed deletion of the averments in his answers.
[10] The issues which were argued before me came to be the following:
(1) Whether amendment to bring in the pursuers new claim after the expiry of the triennium was governed by Scots law or English law;
(2) If Scots law applied, whether I should exercise my discretion in favour of amendment;
(3) If English law applied, whether I should allow amendment;
(4) Whether the case against the first defenders should be dismissed.
Whether amendment should be allowed: Submissions
[11] The solicitor advocate for the first pursuers argued that the question of whether or not the pursuers’ amendment should be allowed was governed by English law by virtue of section 23A of the Prescription and Limitation (Scotland) Act 1973. Accordingly the English law set out in section 35 of the Limitation Act 1980 and the Civil Procedure Rule 17.4 applied to the exclusion of the ordinary Scottish line of authority beginning with Pompa’s Trustees v Edinburgh Magistrates 1942 SC 119. That pointed to the allowance of the amendment. Alternatively, if Scots law applied, no question of time bar arose and the question was simply one of discretion, which would favour allowance of the amendment. The pursuers referred to Kleinwort Benson v Glasgow City Council 2002 SLT 1190, Jones v Lanarkshire Health Board 1991 SC 285, Greenhorn v J Smart & Co (Contractors Ltd) 1979 SC 427, Grimason v National Coal Board 1987 SC 162 and Sellars v IMI Yorkshire Imperial Ltd 1986 SC 235.
[12] Counsel for the second defender argued that Scots law applied to the question of amendment, and amendment should be refused. He referred to Pompa’s Trustees, MacPhail v Lanarkshire Health Board 1951 SC 301, Kleinwort Benson v GCC 2002 SLT 1190, McElroy v McAllister 1949 SC 110 and Perth & Kinross Council v Scottish Water & Another [2016] CSIH 83 and Johnson, Prescription and Limitation (2nd Edition para 22.22).
Statutory Provisions and Rules of Court
Scots Law
[13] Rule 24.1 of the Rules of Court of Session provides:
“(1) In any cause the court may, at any time before the final judgment, allow an amendment mentioned in paragraph (2).
(2) Paragraph (1) applies to the following amendments:-
…
(c) an amendment of a condescendence, defences, answers, pleas-in-law or other pleadings which may be necessary for determining the real question in controversy between the parties;…”
[14] The Rules of the Court of Session do not deal with the matter of amendment of an existing action to introduce matters which would at the time of amendment be time barred if brought in a new action.
[15] Section 23A of the Prescription and Limitation (Scotland) Act 1973 provides as follows:
“23A Private international law application
(1) Where the substantive law of a country other than Scotland falls to be applied by a Scottish court as the law governing an obligation, the court shall apply any relevant rules of law of that country relating to the extinction of the obligation or the limitation of time within which proceedings may be brought to enforce the obligation to the exclusion of any corresponding rule of Scots law.”
English Law of Limitation
[16] The following statement on the English law of limitation was agreed in a Joint Minute:
“B. English law of limitation
The time within which actions for personal injury and death may be brought in England is governed by the Limitation Act 1980, the relevant provisions of which state:
‘11.‑ Special time limit for actions in respect of personal injuries.
(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.
(2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with the subsection (4) or (5) below.
(4) Except where subsection (5) below applies, the period applicable is three years from –
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
(5) If the person injured dies before the expiration of the period...
To continue reading
Request your trial
-
Mrs L Steele v EDF Energy Nuclear Generation Ltd: 4110640/2021
...which the defender claims is timebarred. That was referred to in Docherty 10 v Secretary of State for Business, Industry and Strategy [2017] CSOH 54 a personal injury action in which the motion was to allow an amendment and in the circumstances of that case the discretion was not exercised ......
-
Mr I Mkwebu v The Aedan Burt Care Trust (ABC Trust) and others: 4114277/2019 and others
...30 which the defender claims is timebarred. That was referred to in Docherty v Secretary of State for Business, Industry and Strategy [2017] CSOH 54. That was a personal injury action in which the motion was to allow 4114277/2019 and others Page 24 amendment and in the circumstances of that......
-
Miss D Pron and Mrs I Pron v Menzies Distribution Ltd: 4106963/2020
...which the defender claims is timebarred. That was referred to in Docherty 15 v Secretary of State for Business, Industry and Strategy [2017] CSOH 54 a personal injury action in which the motion was to allow an amendment and in the circumstances of that case the discretion was not exercised ......
-
George Docherty And Others Against The Secretary Of State For Business, Innovation And Skills
...Amendment was opposed by both defenders and, following a further hearing, Lord Ericht refused to allow the amendment to be made (see [2017] CSOH 54). By interlocutor dated 29 March 2017, Lord Ericht dismissed the action in so far as directed against ICI. He declined, however, to accede to a......