(FIRST) LOUISE DOCHERTY AND OTHERS AGAINST (FIRST) SECRETARY OF STATE FOR BUSINESS, INNOVATION AND SKILLS AND ANOTHER
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 mentioned in subsection (4) above, the period applicable as respects the cause of action surviving for the benefit of his estate by virtue of section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 shall be three years from –
(a) the date of death; or
(b) the date of the personal representative’s knowledge;
whichever is the later.
(6) For the purposes of this section “personal representative” includes any person who is or has been a personal representative of the deceased, including an executor who has not proved the will (whether or not he has renounced probate) but not anyone appointed only as a special personal representative in relation to settled land; and regard shall be had to any knowledge acquired by any such person while a personal representative or previously.
12.‑ Special time limit for actions under Fatal Accidents legislation.
(1) An action under the Fatal Accidents Act 1976 shall not be brought if the death occurred when the person injured could no longer maintain an action and recover damages in respect of the injury (whether because of a time limit in this Act or any other Act, or for any other reason)…
(2) None of the time limits given in the preceding provisions of this Act shall apply to an action under the Fatal Accidents Act 1976, but no such action shall be brought after the expiration of three years from –
(a) the date of death; or
(b) the date of knowledge of the person for whose benefit the action is brought;
whichever is the later.
(3) An action under the Fatal Accidents Act 1976 shall be one to which sections…33,… and 35 of this Act apply,…
38.‑ Interpretation.
(1) In this Act, unless the context otherwise requires –
“personal injuries” includes any disease and any impairment of a person’s physical or mental condition, and ‘injury’ and cognate expressions shall be construed accordingly;’
That, in light of sections 11(5) and 12(2), the limitation period in the present case ran from the date of the deceased’s death, being 30 September 2011. It expired on 30 September 2014.
The following further provisions of the Limitation Act 1980 relate to claims brought outwith the relevant time limits:-
‘33.‑ Discretionary exclusion of time limit for actions in respect of personal injuries or death.
(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –
(a) the provisions of section 11… or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
(2) The court shall not under this section disapply section 12(1) except where the reason why the person injured could no longer maintain an action was because of the time limit in Article 29 in Schedule 1 to the Carriage by Air Act 1961, the court has no power to direct that section 12(1) shall not apply.
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff of the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11… or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonable made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice be may have received.
(4) In a case where the person injured died when, because of section 11…, he could no longer maintain an action and recover damages in respect of the injury, the court shall have regard in particular to the length of, and the reasons for, the delay on the part of the deceased.
(5) In a case under subsection (4) above, or any other case where the time limit, or one of the time limits, depends on the date of knowledge of a person other than the plaintiff, subsection (3) above shall have effect with appropriate modifications, and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit.
(6) A direction by the court disapplying the provisions of section 12(1) shall operate to disapply the provisions to the same affect in section 1(1) of the Fatal Accidents Act 1976.
(7) In this section “the court” means the court in which the action has been brought.
(8) References in this section to section 11… include references to that section as extended by any of the provisions of this Part of this Act other than this section or by any provision of Part III of this Act.
35.‑ New claims in pending actions: rules of court.
(1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced –
(a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and
(b) in the case of any other new claim, on the same date as the original action.
(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either –
(a) the addition or substitution of a new cause of action; or
(b) the addition or substitution of a new party;
and “third party proceedings” means any proceedings brought in the course of any action by any party to the action against a person not previously a party to the action, other than proceedings brought by joining any such person as defendant to any claim already made in the original action by the party bringing the proceedings.
(3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor the country court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.
For the purposes of this subsection, a claim is an original set-off or an original counterclaim if it is a claim made by way of set-off or (as the case may be) by way of counterclaim by a party who has not previously made any claim in the action.
(4) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.
(5) The conditions referred to in subsection (4) above are the following –
(a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts s are already in issue on any claim previously made in the original action; and
(b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.
(6) The addition or substitution of a new party shall not be regarded for the purposes of subsection (5)(b) above as necessary for the determination of the original action unless either‑
(a) the new party is substituted for a party whose name was given in any claim made in the original action in mistake for the new party’s name; or
(b) any claim already made in the original action cannot be maintained by or against an existing party unless the new party is joined or substituted as plaintiff or defendant in that action.
(7) Subject to subsection (4) above, rules of court may provide for allowing a party to any action to claim relief in a new capacity in respect of a new cause of action notwithstanding that he had no title to make that claim at the date of the commencement of the action.
This subsection shall not be taken as prejudicing the power of rules of court to provide for allowing a party to claim relief in a new capacity without adding or substituting a new cause of action.
(8) Subsections (3) to (7) above shall apply in relation to a new claim made in the course of third party proceedings as if those proceedings were the original action, and subject to such other modifications as may be prescribed by rules of court in any case or class of case.’
In applying sections 33 and 35 in the circumstances which arise in the present case, the court would also have regard to the following provisions of the Civil Procedure Rules:‑
17.4‑ Amendments to statements of case after the end of a relevant limitation period
(1) This rule applies where‑
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired under‑
(i) the Limitation Act 1980;
(ii) the Foreign Limitation Periods Act 1984; or
(iii) any other enactment which allows such an amendment, or under which such an amendment is allowed.
(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.
(3) The court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.
(4) The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired.’”
[17] It can be seen from the above that, unlike Scots law, English law makes specific provision in both statute and Rules of Court dealing with the question of amendment of an existing action to introduce a new claim which would otherwise have been time barred.
English Law: Damages
[18] The following statement of the English law of damages was agreed in a Joint Minute:
“A. English law of damages
The proposed claims of the First Pursuers as the executors of the late James Docherty, are the claims which he would have been able to advance himself, against the defenders, immediately before his death, namely:
(a) A claim for pain suffering and loss of amenity arising from the development of asbestosis (including loss of future life expectancy), that being equivalent to a claim for solatium in Scotland; and
(b) 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, that being equivalent to a claim under section 8 of the Administration of Justice Act 1982 in Scotland.
These claims are preserved following the deceased’s death and can be pursued by his executors by virtue of section 1 of the Law Reform (Miscellaneous Provisions) Act 1934. In addition, as a consequence of his death, his executors would be able to claim for his funeral expenses. The relevant parts of section 1 are as follows:
‘1.‑ Effect of death on certain causes of action.
(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of action for defamation
(1A) The right of a person to claim under section 1A of the Fatal Accidents Act 1976 (bereavement) shall not survive for the benefit of his estate on his death.
(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person ‑
(a) shall not include –
(i) any exemplary damages;
(ii) any damages for loss of income in respect of any period after that person’s death;
(c) Where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.’
The proposed claims of the First Pursuers as executors of the late Louisa Docherty are, subject to the exception in section 1(1A) of the 1934 Act noted above, the claims which she would have been able to advance immediately before her death, as the widow of the deceased. The claim she would have been able to advance and which her executors propose to advance is one for loss of financial support up to the date of her death by virtue of s.1 of the Fatal Accidents Act 1976, the relevant provisions of which are as follows:‑
‘1. – Right of action for wrongful act causing death.
(1) If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover health damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.
(2) Subject to section 1A(2) below, every such action shall be for the benefit of the dependants of the person (“the deceased”) whose death has been so caused.
(3) In this Act “dependant” means‑
(a) the wife or husband or former wife or husband of the deceased;
(6) Any reference in this Act to injury includes any disease and any impairment of a person’s physical or mental condition.
1A. – Bereavement.
(1) An action under this Act may consist of or include a claim for damages for bereavement.
(2) A claim for damages for bereavement shall only be for the benefit –
(a) of the wife or husband or civil partner of the deceased;
(3) Subject to the subsection (5) below, the sum to be awarded as damages under this section shall be £12,980
2. – Persons entitled to bring the action.
(1) The action shall be brought by and in the name of the executor or administrator of the deceased.’”
Whether Scots or English law applies to amendment
Discussion
[19] The question of whether English or Scottish law applies to an amendment outwith the triennium was considered by Lord MacFadyen sitting in the Outer House in the case of Kleinwort Benson Ltd v Glasgow City Council 2002 SLT 1190. In that case the new claim had been introduced by adjustment, not by amendment. The Lord Ordinary allowed a preliminary Proof Before Answer to determine whether the new English law claim which the pursuers had introduced into their pleadings by adjustment was time barred or not.
[20] Lord MacFadyen also considered the Scottish procedural rules governing amendment of pleadings. He stated as follows:
“[52] It remains for consideration whether the Scottish procedural rules to which reference was made in the course of the debate preclude such application. They are not, in my opinion, excluded by s 23A. What s 23A excludes are the Scottish rules relating to limitation. I do not consider that either the rule in Sellars or the rule in Greenhorn and Jones can properly be regarded as part of the law of limitation. The rule in Sellars simply involves an application of the general procedural rule that the court does not control the terms in which pleadings are adjusted. The point, it seems to me, is that a party is free to add anything he chooses to his pleadings in the course of the adjustment. He does not require the leave of the court to do so. Any averments he adds by adjustment form part of the pleadings in the action. A limitation rule that depends on the date of commencement of the action thus cannot be relied upon to exclude averments added by adjustment in the ordinary procedural course of an action timeously raised Similarly, Greenhorn and Jones involve the application of the ordinary general rule that amendment is a matter for the court’s discretion. The Scots law of limitation says nothing about amendment to add a new or different claim to a timeously raised action after the expiry of the limitation period. Amendment is a matter for the court’s discretion. One factor which will militate against that discretion being exercised in favour of introducing a new and different case is the fact that it is brought forward after the last date on which it might have been raised as a separate action. But the ground on which such an amendment is refused is not that the law of limitation prohibits such amendment, but because the court regards it as inappropriate, in exercise of its general discretion to control amendment of the pleadings, to permit it to be made.
[53] The result, in my opinion, is that s 23A does not operate to exclude those rules of procedure in the present case.”
[21] I respectfully agree with Lord MacFadyen. In deciding whether or not to allow amendment in the circumstances of this case, the court is not applying the law of limitation. It is exercising its general discretion to control amendment of pleadings. Accordingly section 23A of the Prescription and Limitation Act 1973 does not apply and the matters are governed by the Scots law on amendment of pleadings.
Whether Amendment should be allowed under Scots Law
Submissions
[22] In the event that, as I have done, I were to come to the view that the Scots law of amendment would apply, the pursuers invited me to exercise my discretion in favour of allowing amendment. They argued that there had been no radical alteration in the case: the factual basis of the case was identical and remained based on the employment of the deceased by the second defender and his exposure to asbestos and breach of common law duties of care and statutory duty in terms of the Factories Acts and the Asbestos Regulations 1969. The facts gave rise in both Scotland and England to claims of an almost identical nature: in so far as they differed, there was no prejudice to the second defender as the quantification of the claims would be less than they would have been under Scots law. There had been no delay. No prejudice had been averred until adjustment of the answers on 5 July 2016, and it was only at this stage that the second defender had for the first time introduced averments about apportionment. The second defender would suffer no material prejudice if the amendment were permitted.
[23] The second defenders invited me to refuse amendment on the basis that the claim had been radically altered, after the expiry of the time limit, against a background of delay. The second defender would suffer prejudice ie the loss of an otherwise complete defence, and this was against the background of allegations of breach taking place from 60 years ago onwards and alleged exposure more than 70 years ago in circumstances where the parties were likely to raise apportionment, and against the background of a general lack of evidence.
Discussion
[24] In Perth & Kinross Council v Scottish Water, Lord Drummond Young, in giving the opinion of an Extra Division, stated:
“[10] The power conferred by Rule of Court 24 is wide, and provided that no time limits intervene it permits the substitution of one defender for another. Where a time limit has expired, however, as through the law of prescription, a further principle becomes relevant. This is stated in the opinion of LP Cooper in Pompa’s Trustees v Edinburgh Magistrates, 1942 SC 119, at 125:
‘[T]he Court will not in general allow a pursuer by amendment to substitute the right defender for the wrong defender, or to cure a radical incompetence in his action, or to change the basis of his case if he seeks to make such amendments only after the expiry of a time limit which would have prevented him at that stage from raising proceedings afresh.’”
[25] Lord Drummond Young went on to say:
“[12] The nature of the decision that the court is called upon to make in cases of this nature has been touched upon in a number of decisions. In our opinion a correct statement of the law is found in Sellars v IMI Yorkshire Imperial Ltd, 1986 SLT 629, where LJC Ross stated (at 635)
‘ [W]hen an amendment is proposed which would have the effect of radically altering the pursuer’s case after the expiry of the triennium, the court has a discretion as to whether or not to allow such an amendment. This is because, under [the relevant Rule of Court], the court has a discretion as to whether or not to allow an amendment. If an amendment has the effect of making a radical alteration to the pursuer’s case after the expiry of the triennium, the court may well exercise its discretion so as to refuse to allow the amendment, but, in my opinion, the court does have a discretion in the matter.’
An example of a case where that might be permitted was where a defender had deliberately concealed material facts from the pursuer. The conclusion that the court has a discretion was reached in view of the wording of the Rule of Court, which uses the word “may”, and also because in Pompa’s Trustees the Lord President used the expression “in general”, which suggested that on occasion the court might permit an amendment even after a statutory time limit had expired. We accordingly conclude that the question of whether to permit an amendment is a matter within the discretion of the court, and is not to be regarded as a matter of pure competency. Nevertheless, the principle laid down in Pompa’s Trustees applies, and if a fundamental amendment is proposed after the expiry of a time limit the court should be slow to exercise its discretion in favour of permitting the amendment; the fundamental policy of the law is that contained in the statutes governing prescription, limitation and other time limits, and that should normally be followed.”
[26] It is clear from that passage that the court should be slow to exercise its discretion in favour of permitting amendment after expiry of the triennium.
[27] Further, in my opinion the proposed amendment would have the effect of radically altering the first pursuers’ case. To adopt the language used in the MacPhail v Lanarkshire Health Board 1951 SC 301, the first pursuers have not presented the old front from a new angle, but have offered a new front: they have not only made alterations to the super structure but have changed the foundation of the action. The foundation of the action as originally pled has been held by Lord Boyd to be irrelevant. Now, for the first time the first pursuers are seeking to introduce a new foundation by introducing a new claim based on English law provisions which do not feature in the original pleadings. Without the amendment, the first pursuers’ case against the second defenders would be, like that of the second to twenty-fourth pursuers, irrelevant and would fall to be dismissed.
[28] Furthermore, the first pursuers could have avoided the difficulty in which they now find themselves by bringing an action based on English law in England within the time limit. In response to my enquiry as to why the action was not raised in England in the first place, the solicitor advocate for the pursuers frankly explained that it was in order that the pursuers might seek a remedy under the Damages (Scotland) Act which would have been unlikely to succeed in the English Courts. It is clear that the pursuers made a conscious decision that rather than pursue in the English Courts the remedy which they now seek to add by amendment, they would instead raise an action in the Scottish courts under the Damages (Scotland) Act. It was not until the court held that original claim to be irrelevant that they sought to introduce the new claim. They did not seek to advance the new claim prior to the hearing before Lord Boyd by including the new claim on an esto basis but instead focussed their case solely on the original claim under the Damages (Scotland) Act. As the Lord President said in McElroy v McAllister at page 139:
“If a pursuer chooses to sue not in the primary Court but in some other Court of his own selection, he has only himself to thank if he finds himself encumbered by difficulties which… prove insuperable.”
[29] Further, were amendment to be allowed, the defenders would suffer prejudice in that the action would continue notwithstanding the decision of Lord Boyd on the original claim.
[30] In all the circumstances, I exercise my discretion against allowing amendment.
Whether amendment should be allowed were English law to apply to the question of amendment
[31] In the light of the above, I do not require to consider whether I would have allowed amendment had the question of amendment been governed by English law rather than Scots law.
[32] Had I required to consider that matter, I would have appointed a preliminary Proof Before Answer. I had before me a Joint Minute agreeing English Law in the terms which I had set out above. It is clear from that Joint Minute that the question of whether to allow an amendment after the time bar is a matter for the discretion of the court. The first pursuers lodged as a production an opinion from an English Queen’s Counsel setting out how in his view the court would exercise its discretion. However, this was not agreed by the second defenders. The parties being in dispute about English law on this point, a preliminary Proof Before Answer would have been required.
Decision on Amendment
[33] In the light of the above, I refuse the pursuers’ motion to amend in respect of the second defenders. The consequence of that is that the first pursuers’ case against the second defenders is irrelevant for the reasons set out in the opinion of Lord Boyd. Accordingly I dismiss the action in so far as against the second defenders.
Whether case should be dismissed against the First Defenders
Submissions
[34] Counsel for the first defenders submitted that it followed from the decision of Lord Boyd that the case against the first defenders should be dismissed also. The lex causae of the action was the law of England. The lex loci delicti, where damnum and injuria concurred was England (Rothwell v Chemical Insulating Company Ltd 2008 1 AC 281 at 311). The claims of the pursuers were irrelevant for the reasons set out by Lord Boyd.
[35] The solicitor advocate for the pursuers argued that the law applicable to the pursuers’ claims against the first defender was the law of Scotland. The harm for which the first defender was responsible occurred at Scott’s Shipyard in Greenock. The liability of the first defenders could not be effected by subsequent exposure to asbestos firth of Scotland or where he lived when he developed asbestosis (Connelly v RTZ [1999] CLC 533; Durham v T & N Plc (1 May 1996 C A unreported). He further argued that liability for the death of the deceased was joint and several among those who contributed to it (Barker v Corus [2006] 2 AC 572 at paragraph [69]); Wright v Stoddard International 2008 rep LR2 paragraphs 124-149. He invited me not to dismiss the action against the first defenders but instead to put the case out by order to discuss further procedure.
Discussion
[36] This case was put out before me by order in order to deal with the amendment procedure. The amendment procedure had come about because Lord Boyd had proposed dismissing the action against the second defenders at the instance of the first pursuers, but had first allowed the pursuers to consider a Minute of Amendment in relation to the first pursuers’ claim. That process is now complete in respect of the second defenders, as I am refusing amendment in respect of the second defenders and dismissing the first pursuers’ claim against the second defenders.
[37] The submissions made on behalf of the first defenders and the pursuers’ response to these went beyond the question of whether or not amendment should be allowed. They went to the question as to whether the action against the first defenders should be dismissed. In my opinion, the appropriate place for such a discussion would be at a Procedure Roll hearing.
[38] I refuse the first defenders’ motion to dismiss the petition. In doing so, I make no decision on the merits of their arguments. I do so merely because the appropriate place for these arguments to be made would be at a Procedure Roll debate (or perhaps, if there were dispute as to English law, at a preliminary Proof Before Answer).
[39] The reasons set out above for not allowing amendment to bring the new claim against the second defenders apply also to the new claim against the first defenders. Accordingly I will not allow amendment which introduces that new claim.
[40] However, there are parts of the Minute of Amendment which do not relate to the new claim and which parties might wish to be incorporated into the record before any Procedure Roll debate, for example, amendment to take into account of the fact that Louisa Docherty is now deceased and the substitution of her executors. It may also be helpful for both parties to tidy up their pleadings to take account of my decision. Accordingly I will put out by order for discussion as to further procedure. I would anticipate that at the By Order hearing I may allow further adjustment directed at focusing the pleadings on the remaining dispute between the pursuers and the first defenders in relation to the original claim.
Order
[41] I refuse the pursuers’ motion to amend in respect of the case against the second defenders, and dismiss the action against the second defenders. I refuse the first defenders’ motion to dismiss the action. I shall put out the case By Order on a date to be fixed to discuss with the pursuers and first defenders further procedure in the light of this decision. I shall continue until that date consideration of the Minute of Amendment insofar as it relates to the first defenders. I reserve all questions of expenses in the meantime.