26 June 2017

The case of Louisa Docherty & Others v Secretary of State for Business, Innovation & Skills & Another, which we previously commented upon, returned to Court in late March 2017.

The question before the Court was whether to allow the First Pursuers (who were the executors of Louisa Docherty as she died between court hearings) to amend their pleadings to introduce a new claim or whether that claim was time-barred.

In Docherty, the deceased had died of asbestosis. He lived, worked and died in England where the Pursuers resided. The claim was raised in Scotland as the exposure had occurred during his employment in the 1940s in Scotland. Twenty two of the twenty four Pursuers raised claims for loss of society under the Damages (Scotland) Act 2011 (‘the 2011 Act’) which was not an option available to them under the English Fatal Accidents Act 1976.

The Second Defenders (who had not appeared at the prior hearing due to oversight) sought to have the claim against them dismissed on the basis 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. Their position was that the 2011 Act had no applicability in England and the Pursuers could not rely on it. The Court agreed with their proposition and dismissed the Pursuers’ claim on the basis of relevancy.

The First Pursuers’ Minute of Amendment sought to introduce new claims for solatium, services and loss of financial support. It sought to introduce claims under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.  Both of those Acts apply in England, not Scotland. The Court was faced with the issue that although the case was raised within the triennium, the new claim in the Minute of Amendment was brought outwith the triennium.

The question of whether to allow the Minute of Amendment was a discretionary matter for the Court. The Court’s view was that it ought to be slow to exercise its discretion in favour of permitting an Amendment after the expiry of the triennium. The Court considered that the proposed Minute of Amendment would radically alter the First Pursuers’ case, stating “For the first time the First Pursuer in this case is 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."

The Court commented that the First Pursuers could have avoided the difficulties faced by bringing an action based on English law in England within the limitation period. The Pursuers accepted that the action was raised in Scotland in order that they might seek a remedy under the 2011 Act which would have been unlikely to succeed in English Courts.  It was therefore clear they had made a conscious decision to litigate the claim before the Scottish Courts. It was not until the Court held that original claim to be irrelevant that they sought to introduce the new claim based on English Law. The Court also quoted the Lord President in McElroy v McAllister, 1949 when he said, “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.”

The Court held the Defenders would suffer prejudice if the Minute of Amendment was allowed and therefore refused the First Pursuers’ application to amend. While parts of the claim remain ongoing in relation to the First Defenders, the judgment underlines the necessity that Pursuers raise claims in the correct forum. It illustrates the difficulties that can be faced if Pursuers indulge in forum shopping. The refusal of the Pursuers’ Minute of Amendment also demonstrates that Pursuers should not assume they will be able to substantively recast their claims late in the day, should their primary claim face difficulties, which is a welcome outcome for Defenders.