Scottish Court of Session Decisions

On 8 April I refused the first defenders' motion to allow their Minute of Amendment number 21 of process to be received and answered. On 18 May 1999 I refused to allow paragraph 1 of the first defenders' Minute of Amendment number 24 of process to be received but, in the absence of opposition, allowed the second paragraph to be received and the Record to be amended in terms thereof, the pursuer requiring no time to answer. While paragraph 1 of number 24 of process bears some resemblance to parts of the earlier minute, I regarded the differences between the two as material. The fact that I had refused to allow the earlier minute to be received played no part in my determination of the issue in respect of number 24. A number of submissions made in respect of the first minute were, however, repeated before me and were, indeed, relevant to the question of whether I should allow number 24 to be received.

Paragraph 1 of the minute can be divided into three parts. The first four sentences are new averments about the role of Scottish Gas in instructing and supervising the deceased's work. The next sentence beginning "Esto the deceased ..." expands upon the defences presently on record, i.e. that the first defenders deny having employed the deceased and deny that he was involved in working with asbestos gas mains pipes, by adding that the first defenders were unaware that gas mains pipes were constructed using asbestos, and in particular, that those belonging to Scottish Gas were so constructed. The final sentence avers that, in the 1970s, the only asbestos used in the production of gas mains pipes was "a mixture of chrysotile and cement" which in the earlier minute was referred to as "white asbestos".

There was presented to me on behalf of the first defenders a list giving dates when certain action was taken to investigate the case and indicating significant dates in the progress of the action. The action was raised in June 1995. The evidence of the deceased was taken on 1 July 1996 on commission. He died on 29 July 1996. The action was sisted to enable the present pursuers to become parties thereto. The sist was recalled on 1 August 1997. The Record closed on 22 October 1997.

I was informed that at the commission the deceased was cross-examined on behalf of the first defenders on the basis that he had been employed by them. It was not suggested that he did not work with asbestos nor that he worked with white asbestos. The only suggestion that was made was that asbestos pipes were not common and that they were constructed with a device to prevent dust emerging from them. There was no cross-examination directed to the instruction and supervision role played by Scottish Gas employees.

Mr McGregor, for the first defenders, explained that it was only at the commission that the first defenders learned that the deceased claimed to have worked with the first defenders in the Aberdeen area. Up to that point, the first defenders' enquiries had been in and around the Glasgow area. In addition, it was only at the commission that the first defenders learned the identity of the employees with whom the deceased claimed to have worked. Without directing my attention to specific parts of the list presented to me, Mr McGregor submitted that it explained why it was only in April 1999 that the first defenders were in a position to submit the current Minute of Amendment. When I asked what event had occurred to enable them to do so, it was explained that they had on 14 April 1999 received their expert's report. The details thereof were not explained to me. It was submitted, however, that until 14 April the first defenders were not in a position to amend in the terms now proposed.

The list of dates given to me for the first defenders shows that the expert was not instructed until 30 March 1999. It is not easy to see in the summary of events that anything of significance occurred in a year or more prior to that date. No explanation was tendered for such late instruction of the expert. Mr McGregor submitted that no prejudice would be caused to the pursuers if I were to allow the Minute of Amendment to be received. He submitted that a letter to an expert would be sufficient to confirm the position in relation to white asbestos or a mixture of chrysotile and cement in the 1970s, and that the other matters in the minute related to things the pursuers would require to prove in any event.

Mr Cowie in reply submitted that paragraph 1 of the amendment came too late and that to allow it to be received now would prejudice the pursuers. The proof is due to be heard on 28 June 1999. The averments now made by the first defenders about how their employees were instructed and supervised by Scottish Gas twenty odd years ago required to be investigated, but that investigation could not be carried out in the short time that would be available to answer and proceed with the proof. The case was already of some antiquity. The first defenders had tendered no explanation for not making these averments nor indeed the averments about their lack of knowledge of the use of asbestos in the construction of gas mains pipes at an earlier stage. He also submitted that, apart from the first four sentences, the first paragraph was a thinly disguised attempt to re-introduce the same material as was the subject of the earlier Minute of Amendment which I refused. However, as I have indicated already, I considered the differences between the minutes were material. In particular, the earlier minute did not deal with the question of the first defenders' knowledge nor how gas mains pipes were produced in the 1970s.

I accepted Mr Cowie's submissions in respect of the first part of paragraph 1. I considered it was unrealistic to allow a Minute of Amendment in these terms to be received so close to the proof when it was likely the investigation of these averments could not be completed at an early enough date to enable the proof to proceed. Standing that fact and the absence of any explanation for this part of the amendment being tendered at this stage, and bearing in mind the age of the case and its subject matter and the desirability that such a case should be determined on the date now fixed and that parties' attention should not be deflected at this late stage from preparation for the proof by doubt and uncertainty about the future conduct of the case, I decided that the appropriate course to follow was to refuse to allow the first part of paragraph 1 of the amendment to be received.

I regarded the second part as unnecessary since parties were agreed before me that, in order to succeed in the common law case, the pursuers must prove that the first defenders knew or ought to have known of the presence of asbestos. I regarded the last sentence as irrelevant to the only question towards which I was told it was directed, namely whether the new gas mains pipes actually being used at the time the pursuer was employed by the first defenders contained offensive asbestos rather than "safe" asbestos, since it was not when the pipes were produced but when they were used that mattered. There are no averments about when the pipes used in the 1970's were produced.

Had it been necessary to decide whether parts 2 and 3 should be received in the light solely of submissions about timing, I would have refused to allow them to be received, since no clear and satisfactory explanation was tendered for these averments being introduced at this late stage, and since their introduction would inevitably require investigation on behalf of the pursuers in an unrealistically short time of facts and events of over 20 years ago. I did not accept Mr McGregor's submission that the issue of the material used to produce gas mains pipes in the 1970s could be dealt with by a simple letter to an expert.

In addressing me, Mr Cowie relied, in support of his submissions about prejudice, on the fact that the deceased had been examined and cross-examined in July 1996 and thereby the first defenders were put in a particularly privileged position, since defenders do not usually have the advantage of the victim's evidence long before the proof. He suggested that any significant alteration to the first defenders' case thereafter was prejudicial to the pursuers because their best witness was now unavailable to respond thereto. While the passage of time since July 1996 without these averments being tendered is significant, I did not regard the very fact of the deceased's death itself to be a material factor in considering the question of prejudice. After all, the averments give no indication that he claimed to have worked for the first defenders in Aberdeen. It is plain that information came to light in the commission that the first defenders were bound to investigate and that that investigation might provide new material supportive of the first defenders' denial of liability.

Mr McGregor did not oppose Mr Cowie's motion for the expenses occasioned by the Minute of Amendment.