Scottish Court of Session Decisions

[1] In this action the executor, and certain members of the family of the deceased Robert Benson, claim damages on the basis that the deceased's death from mesothelioma on 22 February 1996 was due to asbestos exposure in the course of his employment with, and by reason of the fault of, the defenders and their predecessors. Notwithstanding the position adopted by the defenders on record, liability to make reparation to the pursuers has, I was informed, been admitted. By interlocutor dated 6 September 2001 the Lord Ordinary inter alia of consent allowed issues.

[2] Rule of Court 37.1, so far as relevant, provides as follows:

[3] Within 14 days of 6 September 2001 there was lodged in process on behalf of the pursuers a document headed "Proposed Issue for the Pursuers". Under the heading "Damages Claimed" there was set out on the left hand side of the document in relation to each pursuer the heads of damage claimed by that pursuer. On the right hand side there was set out in relation to each pursuer a figure representing the total damages claimed by that pursuer, with spaces below (apparently to be filled in by the jury) opposite each of the heads of damage claimed. There was set out a further space underneath for the sum total of damages in respect of each pursuer, again apparently to be filled in. As lodged the document contained no question directed to the issue of liability.

[4] On 3 October 2001 a motion on behalf of the pursuers for approval of the proposed issue came before me. The solicitor advocate for the pursuers sought leave at the outset to amend the proposed issue at the Bar in certain respects. In particular he sought to add a question on liability in the following terms:-

He explained that although the reality was that the jury would be asked only to determine the amount of damages he accepted, on consideration of certain observations made in the case of Mitchell v Laing 1998 S.C.342 (which counsel for the defenders had referred him to the day before), that it would be appropriate that such a question be included at the outset. He also sought to amend the proposed issue by deleting from it certain heads of damage relating to certain pursuers, for which he accepted - again as I understood it following discussion with counsel for the defenders - there was no support in the pleadings.

[5] The motion was opposed on behalf of the defenders. There were three main grounds for this opposition. First it was maintained that since the pursuers had failed to lodge within the time limits provided any document which could properly be described as a proposed issue, they must be held to have departed from their right to jury trial. Secondly, although it was recognised that even in those circumstances the Court could order, on cause shown, that this consequence should not follow it would not be enough, and was not enough, for the pursuers to submit that there had been a mistake as to the need to include a question on liability. It was counsel's position that although the defenders had consented to the allowance of issues, this was not because they wanted a jury trial but rather because it was then accepted that there was no basis for opposition. Thirdly, in so far as reference was made in the document lodged to the claim by the first pursuer as executor nominate of the deceased for "past services rendered by the pursuers", (a) this, for clarity, should expressly refer to past services rendered by the pursuers "to the deceased", and (b) there should be separate heads in respect of each of the pursuers given that it was the duty of the executor to account to those who had rendered services to the deceased.

[6] In developing the first ground of opposition, counsel's position was that the document lodged could not be a proposed issue because it contained no issue. An issue was a question of fact for the jury to decide. Reference was made to Bell's Dictionary p.586 and Hajducki on Civil Jury Trials at p.67. Reference was further made to Welsh v Stewart 1808 Murray's Reports Vol.I p.399, as authority for the proposition that a schedule of damages was not part of an issue (and cited as such in Hajducki op cit at para.3.24). Although counsel also referred to certain authorities which supported - at least pending any authoritative reconsideration - the established practice of including a question on liability even where liability was not in dispute (in particular reference being made to Morton (Cooley's Factor) v Edinburgh and Caledonian Railway Co 1845 8D 288, Dobie v Aberdeen Railway Co 1856 18D 862, Black v North British Railway Company 1908 S.C.444, and Mitchell v Laing, these references were essentially made in support of his second position, counsel accepting, as I understood it, that if the document lodged on behalf of the pursuers could be said to have contained a question or questions for the jury to decide, the absence of a question on liability did not mean that it could not be described as an issue. Counsel accepted however that the defenders had not enrolled for a proof, the argument having first occurred when he was instructed to oppose the motion. It did not appear as a ground of opposition in the Motion Sheet. Nevertheless, in these circumstances he moved me to allow a proof before answer, seeking leave to make that motion at the Bar.

[7] As regards the second ground of opposition the submission was that the established practice was so well known that failure to appreciate it could not amount to cause shown for the purposes of Rule 37.1(2). Although the overlooking by solicitors of the time limit for lodging issues (apparently because of a change in personnel in their office) had been held to be enough in McGhee v Matthew Hall Ltd 1996 S.L.T.399, the present case was much less strong for the pursuers. As I understood it, however, counsel accepted (at least by the end of the hearing) that the form of the proposed question on liability could not be quarrelled.

[8] On behalf of the pursuers their solicitor advocate did not accept that the document which had been lodged could not be described as a proposed issue. In any event the omission to include a question on liability was the result of an understandable mistake or oversight. In similar circumstances the Lord Ordinary in Mitchell v Laing had questioned the need for such a question. Nothing had been said to suggest that the pursuers were not entitled, on their pleadings, to a jury trial. It would be unjust to deny them that right as a result of the inadvertence of their agents. In the circumstances it would be unjust for them to be held to have departed from their right to a jury trial.

[9] In considering these submissions I accepted that an issue no doubt requires to include a question or questions for the jury. I formed the clear view, however, that the document lodged by the pursuers did, at least impliedly, contain a series of questions for the jury - namely what they considered to be appropriate compensation for certain claimed heads of damage and, consequentially, what total figure for damages in respect of each pursuer they assessed as being appropriate. I regarded the case of Welsh v Stewart as clearly distinguishable. In that case the issue asked "What loss and damage the pursuers have sustained ...?.". Beneath that there was a schedule which indicated only the total sum of damages being claimed in respect of various elements of the claim - a schedule which, not surprisingly in these circumstances, was described by the Lord Chief Commissioner (on p.402) as not being part of the issue. It was to be noted also that in Black v North British Railway Co it was nowhere suggested that the proposed question "What is the amount of the loss, injury and damage sustained by the pursuers?" could not be described as an issue. Further it did not, it seemed to me, obviously follow in any event that, whatever its deficiencies, the document lodged by the pursuers could not be described as a "proposed" issue - for consideration and, if, and only if, appropriate, approval by the Court in due course.

[10] However, even if wrong thus far, I was satisfied, for the reasons advanced on behalf of the pursuers, that cause had clearly been shown for the Court to order that the pursuers had not departed from their right to jury trial and that it would be right to give effect to that (as I understood counsel for the defenders accepted in that event would be appropriate) by allowing the proposed amendment and approving the issue as amended.

[11] In relation to the defenders' third ground of opposition I agreed that the words "to the deceased" should be included where sought, but, understanding from the solicitor advocate for the pursuers that the pursuers themselves were content to leave any final accounting to the executor, considered it inappropriate, in the interests of simplicity, to make any further changes.

[12] In all the circumstances I allowed the proposed issue to be amended at the Bar and approved it. That decision, I understand, has now been reclaimed.