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Alexander v. (First) Metbro Ltd & Anor [2004] ScotCS 207 (19 August 2004)

OUTER HOUSE, COURT OF SESSION

PD521/04

OPINION OF LADY PATON

in the cause

HAROLD CHANNER ALEXANDER

Pursuer;

against

(FIRST) METBRO LIMITED and (SECOND) SHIPBREAKING INDUSTRIES LIMITED

Defenders:

________________

First Defenders: Paterson,; Biggart Baillie

19 August 2004

New personal injuries rules: whether appropriate to include pleas-in-law
[1] The pursuer is a retired window-cleaner. He suffers from pleural plaques and asbestosis. He has raised an action in the Court of Session seeking damages (including provisional damages) for personal injuries against two former employers, Metbro Limited ("Metbro") and Shipbreaking Industries Limited, averring that they negligently exposed him to asbestos. The summons passed the signet on 29 March 2004. It was served on the defenders, and called on 29 June 2004.

[2] Metbro sought to lodge defences. In Answer 3 of their defences, they refer to section 17(2) of the Prescription and Limitation (Scotland) Act 1973 and contend that the action against them is time-barred. In Answer 4, they raise the issue of the pursuer's exposure to asbestos while employed by others. In Answer 5, they aver that there are no circumstances justifying an award of provisional damages. In Answer 6, they adopt the pursuer's case against the second defenders.

[3] The defences include nine pleas-in-law, as follows:

"1. The action insofar as directed against the first defenders (sic) being barred by the passage of time, should be dismissed insofar as directed against them.

2. The pursuer's averments insofar as directed against the first defenders being irrelevant et separatim being lacking in specification, the action insofar as directed against them should be dismissed.

3. The cause being unsuitable for jury trial, issues should not be allowed.

4. The pursuer's averments, insofar as material and directed against the first defenders, being unfounded in fact, they should be assoilzied.

5. The pursuer not having suffered loss, injury and damage through the fault et separatim breach of statutory duty of the first defenders, decree of absolvitor should be pronounced.

6. Separatim, esto the first defenders contributed to the development of the pursuer's conditions, which is denied, they are liable only to the extent of such contribution and any award of damages should be reduced accordingly.

7. Separatim, esto the pursuer has suffered loss, injury and damage as a result partly of the fault et separatim breach of statutory duty of the first defenders, which is denied, said loss, injury and damage having also been caused or

materially contributed to by the fault et separatim breach of statutory duty of the second defenders, any award of damages to the pursuer should be apportioned between the defenders inter se in terms of section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940.

8. There being no circumstances to justify an award of provisional damages, decree should not be pronounced as first concluded for.

9. In any event, the sums first et separatim second concluded for being excessive, decree should not be pronounced as concluded for."

[4] The General Department refused to accept the defences, pointing out that as a result of the new personal injuries rules, pleas-in-law are no longer necessary in defences to personal injuries actions in the Court of Session.

[5] Metbro insisted upon their pleas-in-law, and the matter was put out By Order on 7 July 2004.

The Coulsfield Working Party
[6] The new personal injuries rules emerged as a result of recommendations made by the Coulsfield Working Party. The aim of the working party was to simplify and expedite personal injuries claims in the Court of Session. The working party recommended inter alia simplified pleadings; a fixed procedural time-table; an automatic entitlement to recovery of certain documents; a compulsory exchange of information, including the lodging of pursuer's and defenders' valuations; the abolition of a party's automatic right to a debate; and the creation of compulsory pre-trial meetings which in effect advanced "door-of-the court" discussions to a date prior to the proof or trial.

[7] When dealing with the issue of simplified pleadings, the working party observed in their Supplementary Report:

"... what is necessary is a method of pleading which encourages brevity and simplicity and discourages technicality and artificiality ... Broadly, the group are emphatically of the view that pleadings should be short and should exclude mere stylistic standard phrases and ritual incantations ..."

[8] The goals of simplicity and brevity were reiterated by Lord Coulsfield in an introductory address delivered at seminars and meetings leading up to the introduction of the new rules. Under the heading "Simplified written pleadings", Lord Coulsfield observed:

"As has been explained, the unanimous view of the working party was that the present form of pleadings was too elaborate for routine personal injury actions occupying too much time at the start of a litigation without real productive results. Their view was that, realistically speaking, what is required is the briefest description of the events on which the claim is based, together with a brief indication of the ground of fault alleged, and a specific reference to any statutory provision which may be founded upon. Brief details of medical treatment are also required within the pursuer's statement. Some guidance as to acceptable styles of pleading will be given in Practice Notes. As far as defences are concerned, bare denials will be strongly discouraged. Each statement should be admitted where it can be, otherwise answered in a concise informative manner that makes the basis of the denial clear. Any substantive defence, such as sole fault or contributory negligence, will require to be stated in averment. There will be no pleas-in-law [italics added]. An open record is not required to be lodged in court, although parties have 8 weeks from defences to adjust their pleadings and 10 weeks for the pursuer to lodge a record. Adjustments may be exchanged electronically."

[9] Some styles of summonses and defences were prepared by members of the working party, but were not widely distributed. Those styles contained no pleas-in-law in either summonses or defences.

The new personal injuries rules
[10] Following upon the recommendations of the Coulsfield Working Party, new personal injuries rules were introduced by the Act of Sederunt (Rules of the Court of Session Amendment No.2) (Personal Injuries Actions) 2002, S.S.I. 2002 No.570. The new rules, in the form of a substituted Chapter 43 of the Rules of Court, came into effect on 1 April 2003.

[11] In keeping with the working party's aim of achieving brevity and simplicity in pleadings, rule 43.1(3)(c) excluded the ordinary form of summons by the simple expedient of disapplying rule 13.2 and Forms 13.2-A and B in actions to which Chapter 43 applied. Instead, rule 43.2(1) provided a new abbreviated form of summons in the style of Form 43.2-A. A significant feature of the abbreviated summons is that, unlike an ordinary summons, there are no pleas-in-law. Since 1 April 2003, practitioners in the Court of Session have complied with the rules, and have dispensed with pleas-in-law in summonses for personal injuries.

[12] However the new rules were silent on the question of the appropriate form of defences in personal injuries actions. In particular, the rules made no mention of the appropriateness or otherwise of inserting pleas-in-law in such defences. That led to a divergence in practice. Some practitioners continued to use pleas-in-law in defences to new personal injuries actions, and some did not.

Further Act of Sederunt: 29 June 2004
[13] Partly in an effort to resolve the divergence in practice, a further Act of Sederunt, namely the Act of Sederunt (Rules of the Court of Session Amendment No.4) (Personal Injuries Actions) 2004, S.S.I. 2004 No.291, was issued. It came into effect on 29 June 2004, substituting a new version of rule 43.1(3) and providing not only that the ordinary form of summons should not apply in new personal injuries actions, but also that "rule 18.1(1)(b) (defences to include pleas-in-law)" should not apply in such actions.

[14] It will be seen therefore that the legislative mechanism adopted for dispensing with pleas-in-law in defences to personal injuries actions in the Court of Session was the same as that used for dispensing with pleas-in-law in summonses in such actions.

Submissions on behalf of the first defenders
[15] At the By Order on 7 July 2004, counsel for Metbro accepted that the new Act of Sederunt (S.S.I. No.291) applied to their defences. It was however submitted that, whilst it was no longer "necessary" to have pleas-in-law in defences to personal injuries actions, nothing in the Rules of Court made such pleas-in-law incompetent.

[16] It was accepted that pleas-in-law might add little in a standard personal injuries case. Such pleas usually amounted to no more than a criticism of the relevancy and specification of the pursuer's pleadings, a statement that the facts were unfounded, and an assertion that the sum sued for was excessive.

[17] However in certain personal injuries actions, pleas-in-law were useful. A plea-in-law was "a distinct legal proposition, applicable to the facts of the case ..." (Young & Co. v. Graham, (1860) 23 D. 36). Pleas-in-law in a case such as the present had a clear function. They provided a succinct summary of the legal propositions advanced by Metbro against the background of the facts averred. There was thus provided, in an easily identifiable place at the end of the defences, a helpful summary of Metbro's legal propositions. Anyone reading the defences could see at a glance what Metbro's position was. Without pleas-in-law, the reader might have to scan through the whole defences, as a defender's legal propositions were often scattered throughout the text of the defences. For example, time-bar was mentioned in Answer 3 of Metbro's defences.

[18] In the present case, the first plea-in-law indicated that a time-bar point was being taken. The third plea-in-law stated that the cause was unsuitable for jury trial. The sixth plea-in-law was a Holtby plea, contending that the conduct of other parties had contributed to the pursuer's conditions, and that Metbro (if liable to any extent) were liable only to the extent of their contribution. The seventh plea-in-law was the standard but nevertheless useful one that damages should be apportioned between the defenders. The eighth plea-in-law maintained that the circumstances of the case did not justify provisional damages.

[19] In relation to the third plea-in-law (that the cause was unsuitable for jury trial), counsel made several submissions. Without such a plea, Metbro would, according to Hajducki, Civil Jury Trials, at paragraph 3.11, be unable to oppose a motion for issues. Further, where time-bar arguments were raised in terms of sections 17(2)(b) or 19A of the Prescription and Limitation (Scotland) Act 1973, sections 22(4) and 19A(4) of that Act specifically provided that the case should not be tried by jury. Without a plea-in-law clearly focusing that issue, parties might overlook the matter, and find themselves at a jury trial. A conclusion for provisional damages also made a case unsuitable for jury trial. A jury could not advise the court precisely what had been awarded for what aspect of injury or disablement or illness: cf. dicta of Lord Weir in Potter v McCulloch, 1987 S.L.T. 308. For all those reasons, Metbro wished to flag up the unsuitability of the case for jury trial, and they wished to do so by means of their third plea-in-law.

[20] The sixth and seventh pleas-in-law (the Holtby plea, and the contribution plea) were also useful. Anyone reading the pleadings could see at a glance the specific legal propositions put forward by Metbro.

[21] Counsel acknowledged a suggestion made by a participant at the Seminar on the New Personal Injuries Rules, held by the Faculty of Advocates Personal Injuries Law Group and the Court's Personal Injuries User Group on 29 May 2004. It had been suggested that, if pleas-in-law had to be dispensed with, a short summary of legal points which a defender wished to make could be included in the final answer of the defences. Counsel accepted that there would be no real difference between such a summary and formal pleas-in-law. Each would provide an easily accessible summary of the defender's position in law. But counsel noted that the new rules did not state that there should be a summary of legal propositions in the final paragraph of the defences. Unless practitioners were given guidance on the matter, their legal propositions might be scattered throughout the defences.

[22] In response to a suggestion that the language of pleas-in-law might be viewed as archaic and obscure, and thus not consistent with the brief, simple pleadings advocated by the Coulsfield Working Party and the new rules, counsel pointed out that standard pleas-in-law were being used daily. They were used in actions to which Chapter 43 did not apply. There was no reason to change their formulation. If a pursuer did not have a lawyer, the language could be explained.

[23] Counsel added that in certain simple personal injuries cases, those acting for the defenders might well choose not to add pleas-in-law. In terms of rule 43.6(5) and (6), a defender with no pleas-in-law was entitled to oppose a motion for a proof, and to give full written notice of the points of law which he wished to argue: cf. obiter dicta in Hamilton v Seamark Systems Limited, 26 February 2004, paragraphs [23] and [24], to the effect that there might be little difference between a proof and a proof before answer in the new personal injuries procedure. Counsel's point was that the terms of the Rules of Court left it open to a practitioner to choose whether or not to insert pleas-in-law, depending on the circumstances of the case.

[25] For all those reasons, and particularly for the reason that the new Rules of Court did not make pleas-in-law in defences to personal injuries actions in the Court of Session incompetent, counsel sought to have the defences for Metbro approved by the court, and accepted by the General Department.

Opinion
[26] The new rules are intended to provide an efficient procedure for the prompt resolution of personal injuries claims without undue delay or procedural technicalities. Significant features of the new procedure include simplified pleadings; the abolition of a party's automatic right to a debate; the compulsory exchange of information, including information relating to a party's valuation of the case; and compulsory pre-trial meetings at which agreement on certain matters (and possibly settlement) may be reached. It is generally acknowledged that the introduction of the new rules has required changes in both practice and attitude on the part of personal injury practitioners in the Court of Session.

[27] Against that background, I consider that the discarding of pleas-in-law represents an important aspect of the new approach. It might be said (as was persuasively argued by counsel in the present case) that pleas-in-law provide a useful summary of a defender's position in an easily accessible part of the pleadings. But a briefer and simpler summary of a defender's legal propositions could be set out in the final paragraph of the defences, without the need for pleas-in-law.

[28] Thus in the present case, Answer 6 might read:

"6. [Existing text] The pursuer's averments of fault et separatim breach of statutory duty on the part of the second defenders are admitted and adopted on the hypothesis of fact upon which they proceed. Sections 4, 29, 59 and 63 of the Factories Act 1961 are referred to for their terms beyond which no admission is made. Regulations 48, 53 and 76 of the Shipbuilding and Ship-repairing Regulations 1960 are referred to for their terms beyond which no admission is made. Quoad ultra denied. Reference is made to preceding Answers. [Additional text] The first defenders contend that: (i) the action against them is time-barred; (ii) the action is not suitable for jury trial; (iii) the first defenders are not liable to make reparation to the pursuer; (iv) even if the first defenders contributed to the development of the pursuer's conditions (which is denied) they are liable only to the extent of their contribution; (v) even if the first defenders are liable to the pursuer to some extent, the second defenders are also liable and damages should be apportioned between them in terms of section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940; (vi) there are no circumstances justifying an award of provisional damages; and (vii) the sums sought are excessive."

[29] From the point of view of brevity alone, it will be seen that the "additional text" suggested above contains just over 110 words. The nine pleas-in-law set out in paragraph [3] above contain well over 250 words.

[30] Hajducki, Civil Jury Trials, was published in 1998 (some years prior to the introduction of the new rules in April 2003) and for that reason cannot be regarded as authoritative on the question of the need for a plea-in-law in relation to jury trials in cases under the new personal injuries rules. In any event, the emphasis in paragraph 3.11 is upon fair notice to a pursuer that a defender opposes a jury trial. A summary in the last answer of the defences, as suggested above, would give fair notice.

[31] While many practitioners are, understandably, accustomed to pleas-in-law, and might prefer to continue using them, I consider that it is important for the success of the new personal injuries rules that the procedures are kept as simple, uniform, and consistent as possible. It is unsatisfactory to have pleas-in-law in some personal injuries defences in the Court of Session, but not in others. Further, it would be an unwelcome development to have pleas-in-law re-emerging in new personal injuries summonses in the Court of Session as a consequence of the argument presented by counsel in the present case (namely that the new rules do not specifically make such a summons incompetent). Finally, I consider it important from the point of view of maintaining the new approach or attitude to personal injuries cases in the Court of Session that the concept of brief, simple pleadings advocated by the Coulsfield Working Party is seen to be fully endorsed by the new practice and procedures, with personal injuries pleadings being noticeably different from, and shorter and simpler than, pleadings in ordinary actions.

[32] Accordingly, so far as the new personal injuries rules and procedures are concerned, pleadings which include pleas-in-law will not be accepted by the General Department. Defenders who wish to give a brief outline of their legal points should do so in simple language at the end of the last answer in the defences, as illustrated in paragraph [28] above.