16 December 2015
Some festive cheers for insurers and defender firms alike can be found in the recent judgment from the Court of Session in the case of Louisa Docherty & Ors v The Secretary of State for Business Innovation & Skills. The Docherty case provides a recent illustration of the approach taken by the Court when considering the applicable law to be applied in cross-border cases where issues of forum shopping arise.
Louisa Docherty & Ors v The Secretary of State for Business Innovation & Skills [2015] CSOH 149.
This recent judgment from the Court of Session provides a useful illustration of the Court’s approach to forum shopping by claimants. A link to the judgment can be found here.
In Docherty, claims were brought in respect of a deceased who had died as a result of exposure to asbestos. The deceased had been employed by the Second Defenders, Imperial Chemical Industries Limited, at their plant in Teesside. He lived, worked and died in England. Both parties agreed that the Scottish Courts had jurisdiction given that the Second Defenders were domiciled in Scotland. The question of jurisdiction was distinct from the applicable law. The case was taken to debate by the Second Defenders on their proposition that the Damages (Scotland) Act 2011 was not applicable in England. Their argument was that English Law ought to apply and the appropriate remedy was found under the Fatal Accidents Act 1976.
The matter fell to be decided at common law given that the wrongs complained of occurred before the coming into effect of the Private International (Miscellaneous Provisions) Act 1995 or the Rome (II) Regulations. The Pursuer required to establish double actionability both in Scots and English Law in order to succeed in their argument that Scots law ought to apply. The issue was for what were the Second Defenders legally responsible.
The Pursuers’ proposition was that matters should be approached from the perspective of the deceased. Had he lived, he could have pursued the claim in either Scotland or England. The Pursuers encouraged the Court not to take a technical approach. They submitted that the Court ought to take a flexible approach when determining the applicable law.
The Court’s view was that the remedy to which the Pursuers were entitled was regulated by the law of the place where the wrong had occurred. In this case, England. The 2011 Act had no applicability in England and the Pursuers could not rely on it. The Court considered that the Pursuer’s proposition to approach matters from the perspective of the deceased was wrong. A claim under s.4 of the 2011 Act was one which vests in the relatives of the deceased, not the deceased. If the Pursuers’ proposition was correct, it would mean that Second to Twenty Third Pursuers, who had no claim in English law for a tort committed in England, could not only bring an action for damages in Scotland but could seek a remedy not available in English Law under the Fatal Accidents Act 1976.
This case provides a useful illustration that Pursuers require to choose their forum with care. At face value it can seem more attractive for claimants to raise proceedings before the Scottish Courts if the wrongdoer is domiciled in Scotland, given the more generous scope of the Damages (Scotland) Act 2011 compared to the restrictive provisions of the Fatal Accidents Act 1976.
The judgment in Docherty may be suggestive of the Court’s approach when the Court quoted Lord Cooper’s remarks from McElroy v McAllister 1949 SC 110,
“Pursuers should not be encouraged to improve their position vis-à-vis of their opponents by invoking some secondary forum in order to exact compensation for a type of loss which the primary forum would not regard as meriting reparation.”
We agree with this analysis as the correct approach that ought to be taken by the Courts. Whilst the judgment in Docherty is an outer-house judgment and not binding in future cases, its reasoning is persuasive and it is of a wider application where an insurer or wrongdoer is domiciled in Scotland.
The judgment also provides a timely reminder of the issues insurers ought to be aware of in disease claims, particularly in cross-border cases where parties being sued on a joint and several basis. There is a trend presently being seen where more claims are being brought relating to asbestos exposure from the 1960s onwards, a time in which workers were becoming more mobile, often travelling to secure work.
It is perhaps too early to say whether the judgment in Docherty will obviate Pursuer firms’ litigating claims in Scotland which ought properly to be brought in the English Courts. At the very least, it ought to give them pause for thought.
If you require further information about this update, please do not hesitate to contact:
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Mark Hastings |
Suzanne Rosenshine |