Scottish Court of Session Decisions

This is one of six Braer claims in which there is a conjoined proof before answer. In all six cases the claimants claim upon the insurer's limitation fund under sections 1 and 12 of the Merchant Shipping (Oil Pollution) Act 1971 for compensation for damage to asbestos cement roofing materials.

The claims are opposed by Mr James L.R. Robb and by Huxter Salmon Limited, both of whom are claimants on the limitation fund.

The pursuer, Assuranceforeningen Skuld ("Skuld"), is the insurer of the Braer. It has not compeared at the proof; but counsel and solicitors who have hitherto represented it in these proceedings now represent Huxter Salmon Limited. The first defender, the International Oil Pollution Compensation Fund, has compeared. Counsel and solicitors who represent it also represent Mr Robb.

In the course of the sixth day of the proof senior counsel for Huxter Salmon Limited has sought leave to lodge two Dispositions, dated 1983 and 1995 respectively, which relate to the title of the property which is the subject of Miss Fowlie's claim. The purpose of his lodging these documents is to prove that at the material date Miss Fowlie was owner of the property only to the extent of a one half pro indiviso share, and therefore, I infer, is entitled at most to one half of the value, if any, of her claim. This is the point that I had to decide in Eunson v The Braer Corporation and Others (unrepd, 30 July 1998).

The present claimant raised an action against the owner, The Braer Corporation, and Skuld in December 1995. The Record was closed on 19 November 1997 and again on 10 December 1997. By interlocutor dated 13 November 1998 the action was sent to the procedure roll on the preliminary pleas of all parties. The pleas for the first and second defenders did not raise any question as to the pursuers' title and interest to sue.

In Answers lodged on 22 January 1999 (No. 14A of process) to a Minute of Amendment for the pursuer, the first and second defenders took the present point in the following terms:

They tabled the following new plea in law:

By interlocutor dated 4 May 1999 I allowed the Closed Record to be opened up and amended in terms of the Minute of Amendment and Answers. On 14 May 1999 I withdrew the case from the procedure roll and allowed a proof before answer. The Closed Record was then reprinted. The third plea in law for the first and second defenders, which I have quoted, was omitted from the reprinted Record. Counsel for the claimant says that this was done by deliberate decision. Counsel for Huxter Salmon Limited says that it was done per incuriam.

A Practice Note relating to the Braer actions was issued on 15 May 1999. It had the effect of ending all procedure in the actions raised against The Braer Corporation and Skuld. It provided that the claims made in those actions should thereafter be pursued in the form of claims in the Skuld limitation proceedings.

By a Notice to Admit lodged on 28 January 1999 in the present claimant's action against The Braer Corporation and Skuld the first and second defenders called on the claimant to admit that:

By Notice of Non-Admission lodged on 24 February 1999 the claimant denied the calls. By letter dated 8 April 1999, after sundry correspondence on the subject, the solicitors for the claimant sent to the solicitors for The Braer Corporation and Skuld copies of the relevant title deeds. By letter dated 12 April 1999 the solicitors for The Braer Corporation and Skuld replied as follows:

Since then, so far as I am aware, no communication has been sent by the solicitors for The Braer Corporation and Skuld to the solicitors for the claimant intimating any modification of that view, whether on the advice of counsel or not.

During April, May and early June I conducted a number of By Order and motion roll hearings in this and in the five related cases. On each occasion the discussion was on procedural matters relating to the forthcoming proofs before answer. I understood that there was to be a conjoined proof before answer in six selected roof cases in which the questions would relate to the causes of the damage, if any; the measure of compensation, if any; and the related matter of betterment. So far as I recollect, and so far as my notes disclose, counsel for the first and second defenders did not mention the question of title and interest to sue as being one that the first and second defenders wished to raise in this case.

Huxter Salmon Limited has not taken any such point expressly in its pleadings. Its adjusted Condescendence and Claim was lodged on 28 May 1999. In it it adopts the first and second defenders' pleadings in the following terms:

The present claimant is one of the claimants referred to.

I shall refuse the motion for late lodging of these productions. I doubt whether Huxter Salmon Limited has record for the point. As I read it, its claim adopts the contention for the first and second defenders that the present claim does not fall within section 1 of the 1971 Act. It does not take any express point of title or interest to sue. Although it adopts the first and second defenders' pleadings, that cannot, in my view, amount to an adoption of a plea that is not, for whatever reason, tabled in the Closed Record in the present claimant's action; and it cannot be held to have given fair notice of the point by a wholesale and anticipatory adoption of the pleadings of The Braer Corporation in every action to which The Braer Corporation has been convened as a defender.

However, it is unnecessary for me to decide the question on a technical point of pleading. I am satisfied that it would be unfair to allow the objector now to take the point in view of the history of the claim to date. In my view, the stance adopted by counsel for the objector is at variance with the position represented by the objector's solicitors in the letter of 12 April 1999 which I have quoted. In view of the silence of the first and second defenders on that question in subsequent correspondence and at the subsequent By Order and motion roll hearings, the present claimant and her advisers were justified, in my view, in understanding that the point as to title and interest to sue had been given up. That is the understanding on which the claimant came to proof. It cannot be fair for the claimant to be confronted with this point in the middle of the proof.

Even if there had not been the correspondence to which I have referred, I would have been unwilling to exercise my discretion in favour of the objector in the particular circumstances of this case. The objector could have lodged these documents long ago. The claimant produced the title deeds last April. Questions of title and interest to sue should, where possible, be disposed of in advance of any proof. If the objector had raised the point at the appropriate time it could have been resolved at a procedure roll debate, as happened in the Eunson case (supra), or, if the facts were contested, at a preliminary proof. I would not have been willing to have the claimant's proof conjoined with the others while that point remained unresolved. I would therefore have refused the present motion on the further ground that it came too late.