Attempting to avoid trial by jury

A motion that the pursuers be limited to a judicial trial by virtue of the Prescription and Limitations (Scotland) Act 1973 was unsuccessful.

Executive Summary

The defenders’ motion that the pursuers be limited to a judicial, rather than jury, trial by virtue of the Prescription and Limitations (Scotland) Act 1973 was unsuccessful.

Background

This is a claim for compensation and damages brought by the widow and family of Maxwell McClean who had died of mesothelioma on 29 July 2017. Mr. McClean had worked for the defenders for around 10 years and had developed mesothelioma as a result of exposure to asbestos during the course of his employment.

The defenders argued that the Prescription and Limitations (Scotland) Act 1973 (the Act) would preclude the pursuers from having their claim heard by a jury. Section 22(4) of the 1973 Act in conjunction with Sections 17.2 (b) and 18.2 (b) essentially prevents, in certain circumstances, claims where older and less cogent evidence will be presented from being heard by a jury.

The 1973 Act deals with the applicable time limits for bringing claims before the court (often known as the limitation period). The specific sections in question seek to protect juries from cases dealing with older or less cogent evidence where careful decisions must be taken as to how much weight can be given to the same evidence. For instance the evidence of a witness recalling an incident that occurred 30 years prior to a hearing would not normally be afforded the same weight as evidence recalling events from two or three years ago. This is a task usually reserved for legally trained judges.

The Court’s Decision

Section 17 of the Act deals with injury claims brought by the injured party themselves while Section 18 deals with claims brought after the death of the injured party. The present claim was brought well within the time limits set out in the Act however the defenders presented the court with a complex argument based on the same. In effect the defenders stated that Mr. McClean was aware of his potential claim prior to his death (although he had not started legal proceedings), and that as a consequence of this, the claim should be dealt with under Section 17 rather than Section 18. If the claim was dealt with under Section 17 then it fell into a category that meant it could not be heard by a jury. Given that the pursuers sought a substantial Loss of Society claim the advantages of this argument to the defendants were obvious. As outlined in our previous article there is a significant divergence in the amounts awarded by juries as compared to courts in such claims.

A version of this argument has been previously assessed and dismissed in the case of Mitchell v Advocate General for Scotland [2015] Rep LR 51 which also related to a mesothelioma claim. However, in this case the defenders attacked some of the reasoning in Mitchell and asked the court to review the position.

The Court rejected the defenders’ argument. The court noted that the defenders had presented no limitation arguments and had not questioned the cogency of the evidence. This undermined their position even before the technical discussion of the applicability of Sections 17 & 18 commenced. In any event the Court found that Section 18 (where the injured party had passed away) was applicable to the case irrespective of the deceased’s actions while alive.

Comment

The value of jury (as compared to judicial) awards was no doubt a spur to a rather novel attempt to forestall a jury trial and there is no doubt further attempts will be made in claims of this nature in the future. However, compensators should be careful in the arguments that they advance. Approaches that are too speculative or attempt to reopen previously decisions of the court will inevitably lead to costs penalties and this should be weighed against the potential saving.  

For any further information regarding any aspect of the issues raised in this case, please contact Pamela Stevenson, Partner on 0141 375 0867 or email pamela.stevenson@weightmans.com

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