Scottish Court of Session Decisions

Procedure roll hearings in these cases have been fixed for next week. In consequence of the Inner House decision in Landcatch Ltd v The International Oil Pollution Compensation Fund (19 May 1999), the pursuers have enrolled in each of these cases for a sist pending a decision by the pursuers in Landcatch as to further procedure by way of an appeal to the House of Lords. At the hearing on these motions senior counsel for the pursuers has moved in the alternative that the procedure roll diets should be discharged. The motions are presented on the basis that these cases raise a similar question to that in Landcatch. The motions are opposed by the defenders and the minuter on the ground that progress in these actions should not be delayed whatever further procedure there may be in Landcatch.

I entirely sympathise with the defenders and the minuter in their desire to conclude the Braer litigations without delay; but I think that it is important to distinguish between delays that are caused by or requested by parties and delays that are inherent in the normal processes of appeal to which unsuccessful litigants are entitled to have recourse. For as long as the economic loss point in these cases rested on an Outer House decision in Landcatch Ltd v The International Oil Pollution Compensation Fund ([1998] 2 Lloyd's L.R. 552) it was reasonable, I think, that other similar cases should be expedited. For that reason at an earlier stage I refused to discharge a diet of procedure roll in P. & O. Scottish Ferries v The Braer Corporation (7 January 1999, unrepd.).

However I regard the decision of the Inner House in Landcatch as a material change of circumstances. It is unfortunate that it has come out so close to next week's procedure roll diets; but it is a significant decision because it is the first appellate decision on the point in these processes, and because it may be the final decision in that case.

Counsel for the pursuers in these cases cannot reasonably be asked to make a formal concession at today's hearing that next week's cases are indistinguishable from Landcatch; but it is, I think, realistic to assume that they are.

In my view, the reasonable and practical decision is that next week's diets should not proceed. The following are the principal reasons why I reach that view.

First, the pursuers and their advisers now face serious and important decisions as to the future of their claims. They are entitled to receive considered advice in each case. They should not be placed under the stress of making an urgent decision on the continued prosecution of these actions by the imminence of the procedure roll diets. Secondly, if Landcatch is not appealed, or if it is appealed unsuccessfully, and if these diets go ahead, with the almost inevitable result of decrees of dismissal, there will have been a considerable waste of the time and money of the parties in next week's proceedings. Thirdly, and perhaps more importantly, in that event there will also have been a considerable waste of the administrative resources of the court. The court has an interest in this matter that is separate from the interests of the parties. Fourthly, to the extent that the present pursuers have a separate point to make based upon the approach to the interpretation of the Conventions, P. & O. Scottish Ferries (supra) and Skerries Salmon Ltd v The Braer Corporation (1 December 1998, unrepd.) will decide that point. Again the delay in reaching a decision on that is a delay inherent in the fact that those cases have been appealed. That delay will take place regardless of what happens next week.

These are the last relational economic loss cases to remain outstanding. It is agreed that in all of them the relational economic loss point overshadows the entire claim. The only independent heads of claim that have been identified by counsel are the roof claim in the L. Williamson case and the professional fees claim. The roof claim is now going to be deleted by Minute of Amendment and the professional fees point has been caught up in the cross-appeal in the Landcatch case.

Looking at the whole matter overall, I am in no doubt that the true cause of delay in all of these litigations is the Landcatch case, and the potential appeal in that case to the House of Lords, and the associated delay in the appeals in the P. & O. Scottish Ferries and Skerries Salmon cases. These delays will occur come what may. In my view, my decision today will not produce a deadlock or have the effect of prolonging these processes any more significantly than Landcatch will inevitably do.

The question then arises as to what the disposal of these cases should be today. I am not prepared to sist these actions. A sist would be inadvisable as it would bring all procedure to a stop. It is of doubtful competence anyhow for the reasons mentioned by Mr Tyre. In my view the best practical solution is to discharge the diets. The limitation action can then proceed on other fronts. If the defenders and the minuter consider at a later stage that there is reason why diets of debate should be fixed in these cases, the necessary procedural steps will be open to them.