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LAURA McCLUSKEY AGAINST SCOTT WILSON SCOTLAND LIMITED [2024] ScotCS CSOH_4 (23 January 2024)
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[2024] CSOH 4
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OUTER HOUSE, COURT OF SESSION
[2024] CSOH 4
A91/13
OPINION OF LORD CLARK
In the cause
LAURA McCLUSKEY
Pursuer
against
SCOTT WILSON SCOTLAND LIMITED
Defender
Pursuer: Sutherland; Allan McDougall
Defender: Barne KC; CMS Cameron McKenna Nabarro Olswang LLP
23 January 2024
Introduction
[1]
This case is one of a group of actions raised in 2013. The actions were brought by
persons who claim to have suffered personal injury as a result of the inhalation of harmful
substances alleged to be present in land upon which a housing development was
constructed. The housing development, which is in Motherwell, is known as "the Watling
Street development". The pursuer in this case was a tenant in one of the properties in the
development. The defender is a limited company which provides civil engineering services.
[2]
The lead case identified from the group of actions is McManus v Scott Wilson Scotland
Limited. There are 43 other cases, including the present one, and these were sisted pending
2
the outcome of the lead case. McManus went to a preliminary proof in 2020. I held that the
defender owed a duty of care to the pursuers but had not breached that duty in any of the
ways argued for the pursuers. A reclaiming motion (appeal) was lodged on behalf of the
pursuers and it was heard and refused by the Inner House in 2021. Permission to appeal to
the Supreme Court was refused.
[3]
The present case called before me for a diet of debate. The defender contends that
this pursuer seeks to establish that the defender was in breach of the same duty that the
defender was held not to have breached in McManus. The averments in this case are said to
be in all material respects the same as those for the pursuers in McManus, with this case
prepared by the same solicitors and presented by the same counsel. It is argued that the
pursuer's case should be dismissed because of the doctrine of res judicata, or as being
irrelevant or because it is an abuse of process. The pursuer argues that these principles do
not apply and that there are additional averments in this action, including a further alleged
breach of duty, that were not made in McManus.
[4]
The legal form of the defender's business, and its name, have changed over time.
When the alleged breaches of duty are said to have occurred (1990-2001) a predecessor
carried out the work. References herein to the "defender" should be taken to cover the
present company and its predecessor.
Submissions
Submissions for the defender
Res judicata
[5]
In Grahame v Secretary of State for Scotland 1951 SC 368 at 387, the Lord President
(Cooper) gave the classic statement of the plea of res judicata. The plea was considered by
3
the First Division in RG v Glasgow City Council 2020 SC 1 where the Lord President
(Carloway) said that it is sufficient if the interest of the parties in the first and second action
is the same and there is no need for excessive concentration on the precise nature of the
remedies sought in each action. The facts found in McManus were about the site works and
investigations undertaken by the defender which are said to have been negligent by the
present pursuer. The interests of the pursuers in McManus and the present pursuer are the
same. The question is what was litigated and what was decided. The key question was
breach of duty and it was decided, on those same facts, that there was no breach. Decisions
were reached on generic issues which arise in the present case.
Relevance
[6]
The same arguments can be viewed through the lens of relevancy (see eg Friel v
Brown 2020 SC 273). On the facts the pursuer offers to prove, it has been conclusively
determined that the defender fulfilled its duty of care to a person in the position of the
pursuer. In those circumstances, it can be said that the pursuer's case will necessarily fail
(cf Jamieson v Jamieson 1952 SC (HL) 44) and so it can properly be said to be irrelevant.
Abuse of process
[7]
Reference was made to Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd
[2014] AC 160 (at para [25]), where Lord Sumption described res judicata and abuse of process as
"distinct although overlapping legal principles with the common underlying purpose of
limiting abusive and duplicative litigation." Dismissing a claim where the party pursuing it
is guilty of an abuse of process is an inherent power of the court: Shetland Sea Farms Limited v
Assuranceforeningen Skuld 2004 SL 30, (at para [143]). A case which wastefully occupies the
4
time and resources of the court with a claim which is obviously without merit can be
categorised as an abuse of process: Clarke v Fennoscandia Limited (No.3) 2005 SLT 511 (at
paras [17], [40] and [44]). In this case, the pursuer seeks to re-litigate the same issues, to lead
substantially the same evidence, in the hope of obtaining a different outcome. That falls
squarely within the example of an abuse of process given in Clarke (see also RG v Glasgow
City Council, at para [32]).
[8]
In Society of Lloyd's v Fraser & Ors [1998] CLC 1678 at 1650., the Court of Appeal said
that it is an abuse of process for parties coming within a scheme of marshalled litigation to
seek without justification to avoid the outcome of the cases which have been selected for
hearing. In Ashmore v British Coal Corporation [1990] 2 QB 338 the plaintiff was not bound by
the findings of an earlier "sample" action that had been selected by the court to litigate one
of many equal pay claims. The court decided that where sample cases had been selected to
enable the tribunal fully to investigate and make findings on all relevant evidence, re-
litigation of the same issues would defeat the purpose of sample selection and be contrary to
the interests of justice and public policy. This approach has echoes in this jurisdiction:
Greig v Magistrates of Kirkcaldy (1851) 13 D 975 (at 981). Whether McManus was a "test" case
or a "lead" case is a distinction without a difference. It formed part of a managed cohort of
cases.
Submissions for the pursuer
Res judicata
[9]
For the doctrine of res judicata to apply, the principles set out in cases such as the
following must be satisfied: Primary Health Care Centres (Broadford) Ltd v Ravangave
5
Ct) 46 (approved by Lord Macfadyen in Irving v Hiddleston 1998 SC 759). Applying the
principles, in RG v Glasgow City Council, the court concluded in that case that: "the media
concludendi in the two processes [was] different and res judicata cannot therefore apply with
full force and effect" (at para [29]). While the court is entitled to give weight to some, if not
all, of the facts determined in the McManus action, this pursuer will adduce evidence on
causation of loss and on breach of duty which was not previously before the court.
Dismissal of an action on the basis of res judicata would amount to a significant interference
with a fundamental right of access to justice in respect of an individual who is a different
person with their own distinct legal rights.
[10]
The point referred to by the defender on "the same parties", made in RG v Glasgow
City Council (at para [27]), is a reference to established case law that applies where the new
pursuer is a representative of the same legal interest as the previous pursuer, or that the
legal interest of the new pursuer is derived from the same legal interest as the previous
pursuer (see Earl of Leven and Melville v Cartwright (1861) 23 D 1038; Carmichael v
Anstruther (1866) 4 M 842). There is no contractual agreement with the defender, or between
the pursuers, that the outcome of McManus is to be binding in respect of any other pursuer.
The pursuer in this case is a different person from the pursuers in McManus. She is suing as
the occupier of different premises, and as having her own separate legal interest in the
subject-matter of the action. A common interest in a common subject-matter is a different
thing from being the same parties in two separate claims for damages: MacArther v County
6
Relevance
[11]
The appropriate principles to be applied are those set out in Jamieson v Jamieson
(Lord Normand at 50) and Miller v SSEB 1958 SC (HL) 20. The onus is on the defender to
show that even if the pursuer succeeds in proving all that is averred, she is bound to fail.
The ability to refuse a case to proceed at debate should not be used in a way that would
cause injustice by denying a pursuer the opportunity to prove averments unless the case
must fail. It is not axiomatic that if one pursuer cannot prove all that is required for a case of
fault in relation to the defender's actings, a different pursuer could not necessarily prove
fault in relation to the same actings. In any event, although the pleadings in the two cases
are necessarily similar, they are not identical. There are additional averments of fact and
additional averments of fault which have been made in light of advice of the further expert
in relation to issues of causation.
Abuse of process
[12]
Reference was made to the dicta in Moore v Scottish Daily Record and Sunday Mail
Ltd 2009 SC 178, Hepburn v Royal Alexandra Hospital NHS Trust 2011 SC 20 and Clarke v
Fennoscandia. Every person has a right of access to the courts to settle disputes. Dismissal of
an action on the basis of an abuse of process is a significant interference with a fundamental
right of access to justice. It is a draconian power which should be regarded as an option of
last resort: Tonner v Reiach and Hall 2007 SC 1. This power is only exercised in cases which
might otherwise be considered to be manifestly unreasonable or inconsistent with the courts
obligations in the administration of justice.
[13]
The present pursuer is entitled to raise and continue her own action against the
defender. She is not bound to accept that the decision in the previous action is
7
determinative of her own right of action against the defender notwithstanding the factual
background is the same. Further, and in any event, the conduct of the McManus litigation
was substantially affected by the relatively late withdrawal of the expert witness instructed
for the pursuers. The evidence led in McManus exposed an overlap of issues concerning the
remediation of the ground and the causation of harm. As issues concerning causation were
not a matter for proof the pursuers in McManus did not instruct a new expert witness on
causation issues to replace their original expert. The defender's evidence included aspects
related to causation which the pursuers' expert in McManus had not been instructed to deal
with. Moreover, the pleadings in the present action are not identical to the pleadings in the
McManus action. The pleadings in the present action take account of the advice of a further
expert witness instructed for the pursuer.
Decision and reasons
Context
The pursuer's pleadings
[14]
The pursuer's averments in this case in relation to existence of duty and breach of
duty have a substantial degree of similarity to those in McManus. The history is set out in a
similar manner. The averments are slightly restructured, in effect breaking up some of the
Articles of Condescendence in the McManus pleadings. But while much of the averments
coincide, additional averments are made by this pursuer.
[15]
It is not necessary to set these out in full detail, but they include factual averments
about investigations the pursuer says should have been carried out and a claim that there
has been a further breach of duty by the defender. For example, it is said that no
consideration was given to the potential presence of VOC (volatile organic compounds), no
8
further laboratory analysis was undertaken on samples that exhibited elevated
cyclohexane/toluene extract and the specific nature of the organic materials was not
identified. Presence of these contaminants would, it is averred, have had potentially
significant implications for the development of the remediation strategy. The failure to
properly investigate the potential for the presence of residual VOCs on the site and the
failure to provide proper topsoil capping on the site are averred to have undoubtedly led to
the presence of contaminants in shallow soils, that would not otherwise be present if the
works had been undertaken to a higher standard and suitable validation of the garden areas
undertaken. The further breach of duty averred is that any reasonably competent
environmental consultant would have been able to identify the lack of proper capping
materials on the properties.
[16]
On behalf of the pursuer, it was suggested (as noted above) that evidence relevant to
causation which also impinged on breach of duty is to be led in this case, should it proceed.
The broad point made for the pursuer appeared to be that there were matters relevant to
causation, but also to breach of duty, heard as evidence at the proof in McManus and that the
pursuers were hampered by not being able to lead evidence on these matters, which the
present pursuer can now do. It was submitted that evidence of material still present in the
ground has a bearing on what the defender should have done. Senior counsel for the
defender expressed the view that if there is evidence relevant and admissible on breach of
duty which also overlaps with causation then it should have been led in McManus. Senior
counsel also submitted that as a matter of form and substance the new alleged failures and
duty were covered by the proof in McManus and would not have any effect on the core
finding that the remedial solution proposed was suitable. However, that submission was
not developed. Indeed, I was not addressed, by either party, on any detailed analysis of the
9
specific new averments in this case to seek to show whether or not the outcome could differ
from that in McManus.
Group litigations in Scotland
[17]
Before 2018, group cases were covered by a specific Practice Direction. It is now
possible to apply to the court for permission to bring group proceedings under Part 4 of the
Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. A central theme of
Part 4 of the 2018 Act is that there is a court-appointed representative party on behalf of the
group. More details of the rules are set out in the Act of Sederunt (Rules of the Court of
Session 1994 Amendment) (Group Proceedings) 2020. These state that where the
Lord Ordinary gives permission for group proceedings to be brought the Lord Ordinary is
to make an order which inter alia "specifies that group members may withdraw their consent
to being bound by the group proceedings" (26A.12(1)(f)). Part 9 of the Act of Sederunt deals
with an interlocutor, given in group proceedings and, at 26A.28(1)(b) states that it
"binds all such persons, other than any person who has, as at the date of the
interlocutor, withdrawn their consent to their claim being brought in the
proceedings".
So, under the new scheme, there is a default position that the outcome of the group
proceedings is binding on the group. Part 4 of the 2018 Act has no retrospective effect and
does not apply to the present group of cases.
[18]
The cohort of cases which include the present action were covered by Practice
Direction No 1 of 2013: "Personal Injury Actions relating to alleged ground contamination
at the Watling Street Development in Motherwell". The Lord President, having consulted
with parties in the proceedings, made the directions. Among other things, the directions
state that each action would proceed as an ordinary action and that the pursuer and
10
defender required to take certain steps. The court was given powers, including to determine
further procedure, to order each party to produce a statement of valuation of claim, to order
the appointment of actions to procedure roll hearings or proofs on all or any parts of the
action and to sist actions or make "such other order as it thinks fit for the speedy
determination of the actions". The Direction states:
"13.
The nominated judge shall give early consideration to whether in order to
determine or give guidance on any generic issues in the actions, the lead actions
which the parties have identified are appropriate to be progressed at an advanced
rate."
The Direction does not state that the outcome of the lead action will be binding.
[19]
As noted, McManus proceeded as the lead action. Following a debate in that case, a
reclaiming motion and refusal of an application to appeal to the Supreme Court, it came
before me for a proof before answer to be fixed. Each side set out the matters to be
determined. Initially, the proof was fixed to deal with these issues: (i) the nature and scope
of duties owed by the defender, whether contractual or delictual, and to whom were they
owed; (ii) breach of duty; (iii) causation; (iv) the substances present in the house and their
quantity. The court was then advised that one of pursuers' experts, Mr Brien, had a conflict
of interest and was no longer available, raising problems with the pursuers being able to
properly address the third and fourth issues. The proof before answer was therefore
restricted to the first two issues.
[20]
Following my decision in McManus and the refusal of the reclaiming motion, when
the pursuers sought to appeal to the Supreme Court, it was submitted that this was in effect
a Scottish version of a "Class Action" and that "directions had previously been given which
effectively sought to treat this case as the lead case". The pursuers went on to submit that
"Given the potential consequences of the Lord Ordinary's decision to a large number
of vulnerable people, it is right in principle that the Supreme Court should adopt a
11
more expansive approach to its consideration of the application for permission than
might otherwise be appropriate were the only persons concerned in the matter the
two individual Appellants".
[21]
It can readily be inferred from that proposition that the two issues dealt with in
McManus were indeed generic. That is also reflected in what was said by the Inner House
when refusing leave to appeal to the Supreme Court:
"[6]
The Lord Ordinary heard a proof before answer on two issues:
1.
What duties (whether contractual or delictual) did the defender owe
in relation to the work it undertook at the Watling Street site, to whom did it
owe those duties, and what was the scope of those duties?
2.
Did the defender breach any of those duties in the course of the
remediation of the Watling Street site?"
[22]
The pursuer in the present case contended that in McManus the defender "rejected in
advance of the proof any notion that the outcome of that litigation is binding on them as
regards proof of negligence". In submissions, counsel for the pursuer referred to an email
on this matter but it was not put before the court. The defender did not accept that it had
made the statement suggested by the pursuer.
[23]
Accordingly, while not subject to any express term or agreement that the decision in
McManus would be binding, it is a lead action which dealt with issues generic to all actions
in the group and, on behalf of the pursuers in that case, it was submitted to be akin to an
English Class Action.
[24]
Against that background, I turn to address the three issues raised.
Res judicata
[25]
In Grahame v Secretary of State for Scotland (at 387), the Lord President (Cooper)
described the plea of res judicata as:
12
"common to most legal systems, and is based upon considerations of public policy,
equity and common sense, which will not tolerate that the same issue should be
litigated repeatedly between the same parties on substantially the same basis."
The key questions in that regard, the Lord President stated are "What was litigated and
what was decided?"
[26]
In RG v Glasgow City Council, the Lord President (Carloway) said (at para [27]):
"The reference to the `same parties' should not be construed too strictly. It is
sufficient if the interest of the parties in the first and second action is the same
(Gray v McHardy, Lord Justice Clerk (Inglis), p1047; Glasgow Shipowners' Association
and ors v Clyde Navigation Trs, Lord Shand, p699; Allen v McCombie's Trs,
Lord President (Dunedin), p715). Equally, in relation to the media concludendi,
excessive concentration on the precise nature of the remedies sought in each action
should be avoided in favour of a simple inquiry into `What was litigated and what
was decided?' (Grahame v Secretary of State for Scotland, p387)."
In that case, the court determined that the interests of the reporter and the local authority
were not truly different, both being manifestations of the state. Similar approaches were
taken in the earlier cases founded upon. For example, in Allen v McCombie's Trs an action by
one beneficiary against trustees to replace a sum allegedly lost by wrongful investment
would be res judicata in respect of the other beneficiary, if she were to bring an action on that
same basis.
[27]
The pursuer here is of course a different person from the pursuers in McManus. The
pursuer sues in respect of a different property in the housing scheme and has her own
pecuniary interest. However, this pursuer requires to establish existence of duty and breach
of duty by the defender, before the court can go on to consider causation and loss. These
first two points are the only issues focussed upon in McManus. Those issues are generic and
in which all pursuers have the same interests. Differences about causation and loss are not
relevant. Ample time was given in McManus for the parties to gather all of the relevant
13
expert evidence and other information on these generic issues. As a result, the interests of
the parties in both cases are sufficiently similar to meet this part of the test on res judicata.
[28]
I note that in the reclaiming motion in McManus it was submitted on behalf of the
pursuers as reclaimers (explained at para [40] in the Opinion of the Inner House) that some
of the issues the Lord Ordinary took into account went beyond the scope of the proof,
because they concerned causation rather than the existence of a duty or the occurrence of a
breach. The Inner House (at para [63]) rejected the contention that the Lord Ordinary had
regard to matters which were irrelevant and inadmissible. This provides clear support for
the view that parties were able, if so minded, to bring before the court in McManus the
matters now relied upon in the additional averments for the pursuer, albeit that the pursuer
claims that having lost one of its experts the new expert used in McManus could not give
such evidence.
[29]
However, that leaves open the question of media concludendi. The concept is
discussed by Lord Hodge in Primary Health Care Centres (Broadford) Ltd v Ravangave (at
para [23] et seq). It had previously been referred to as an "abstract expression". In short,
Lord Hodge concluded that the precise meaning of the phrase and the difference between it
and the subject matter of the action may not matter. He referred to Grahame in which the
Lord President stated that judges were "directed to look at the essence of the matter rather
than the technical form, and simply to inquire - What was litigated and what was decided?"
Lord Hodge also referred to the decision of the House of Lords in Glasgow and South Western
Railway Co v Boyd & Forrest 1918 SC (HL) 19, 1918 1 SLT 14, where two of the judges
mentioned in their speeches that res judicata would apply where the pursuer in the second
action had the opportunity to plead a case in the earlier action but had failed to do so. There
are, of course, different pursuers in the cases here. In any event, Lord Hodge did not
14
consider that matter to be relevant to what was litigated and what was decided: a matter
that is omitted is not part of the same media concludendi. Here, there are additional
averments and an alleged further breach of duty. Even if these can be viewed as wrongly
omitted by the pursuer in McManus, I cannot at this stage be satisfied that in the present case
this aspect of the test for res judicata is met.
Relevance
[30]
In Friel v Brown the pursuer sought damages for the allegedly negligent prescription
of a drug, when there had been a criminal trial in which the jury had determined that the
damage suffered by the pursuer was not caused by the effects of the drug. It was decided by
the Inner House that dismissing the case on the basis of abuse of process was wrong but that
it should have been dismissed as irrelevant. As explained by the Lord President (Carloway)
(at para [19]), for the purposes of relevancy in that case, some of the issues regarding res
judicata apply, namely public policy, equity and common sense considerations. While Friel
was about a fact already taken to be proved beyond reasonable doubt, I do not consider that
to be materially different from a fact proved (in McManus) on the balance of probabilities
and having reached final determination. The public policy point founded upon for
relevancy in Friel involved the strong requirement that a criminal conviction will be treated
as sound. In my view, the decision reached in a first instance civil case, that is appealed but
upheld, should also be treated as sound. In that regard I note that in Greig v Magistrates of
Kirkcaldy Lord Cunninghame said (at 981):
"If the objection of res judicata is not pleadable against a new litigant, we are at least
bound to consider a right fairly tried, whether affirmed on appeal or acquiesced in,
as an adjudged question, in which the decision is binding on the Court, at all events
as a precedent directly in point."
15
Public policy, supporting decisions on the same facts and avoiding re-litigation of points
that have already been decided, applies here. Equity and common sense can also allow
relevancy to be the correct conclusion. It is not equitable to have the defender face the same
issues in a large number of cases, when there has already been a lead action, nor does that
meet the test of common sense. The decision in McManus is a precedent.
[31]
When one also considers the standard approach to relevancy (in Jamieson v Jamieson
and Miller v SSEB) a key point is the defender succeeding in showing that even if the
pursuer proves all that is averred she is bound to fail. Averments are irrelevant if they are
insufficient in law to render the defender liable. In Friel that principle, although not
expressly referred to, could readily be applied based on the jury's decision in the previous
case. I am persuaded that a similar approach falls to be applied here. The final and binding
decisions reached in McManus about the allegations of breach of duty cannot, of themselves,
be re-litigated. To the extent that the pursuer's case uses the same averments in McManus to
seek to prove the same breaches of duty it is therefore irrelevant. In that regard, the
defender's submissions are accepted. However, in the present case there are the further
averments and alleged breach of duty and I conclude that I cannot entirely dismiss this case
on the basis of relevancy, when the outcome can, potentially, be influenced or affected by
the new averments.
Abuse of process
[32]
The potential effect of the further averments for the pursuer also need to be
considered when turning to abuse of process. To summarily dismiss a case on that ground
is a draconian power, used as a last resort (Friel v Brown, at para [17]). There are cases in
England in which actions in related or associated litigations have been dismissed on this
16
ground. Perhaps the leading example for present purposes is Ashmore British Coal
Corporation. An industrial tribunal dealt with some 1,500 cases about women engaged as
colliery canteen workers. They complained to an industrial tribunal about being employed
on less favourable terms than certain male comparators. Sample cases were selected for trial
representing the issues common to all claims, but the tribunal also decided that the decision
in such cases, although persuasive in effect, would not be binding on the other claims. The
appellant's claim was stayed (sisted). The tribunal found that the applicants in the sample
proceedings had not been employed on like work with their chosen comparator, who
worked alone on the night shift, and that in any event the employers were entitled to rely on
a statutory provision, because the variation in the rates of pay was due to a material factor
which was not the difference of sex.
[33]
The Court of Appeal held that, having regard to all the relevant circumstances of the
particular case, public policy and the interests of justice were very material considerations.
Where sample cases had been selected to enable the tribunal fully to investigate and make
findings on all the relevant evidence, re-litigation of the same issues, being analogous to a
collateral attack on the tribunal's decision, would defeat the purpose of sample selection and
be contrary to the interests of justice and public policy unless there were fresh evidence
which entirely changed the aspect of the case. In the absence of any such evidence, since the
applicant had not taken the opportunity of putting forward her claim for selection and since
the issues had been fully investigated in the sample proceedings, it would be unfair to other
claimants and contrary to the interests of justice to permit her to re-open the issue.
[34]
I accept that in this jurisdiction abuse of process is at least capable of being used to
dismiss an action, as a last resort, in circumstances in which a group of related actions have
been the subject of case-management under a Practice Direction and a lead action has
17
proceeded and been finally determined, with all of the other cases sisted for many years to
await its outcome. The pursuer's new averments concern matters which, while said to be
relevant to causation and that not being an issue at the proof before answer in McManus, are
also relevant to breach of duty. I have real difficulty in understanding that facts relevant to
breach of duty were omitted because they were viewed as relating to causation. I accept the
defender's position that the pursuers should have recognised in advance of the proof in
McManus that this ought to have been the subject of evidence to be led. If, as is submitted,
the pursuers had no available expert evidence on the matter because of the change in
experts, the pursuers could have appealed against the decision to fix the proof. However,
the question remains as to whether having not picked up, in McManus, the need to lead
evidence on the new averments now raised, the pursuer's case in the present action becomes
an abuse of process.
[35]
Given the further averments and the additional alleged breach of duty, the present
case was not entirely ruled by the decision in McManus. In all of the circumstances, I am
unable to conclude that this action should be summarily dismissed on the basis that it is an
abuse of process.
Outcome
[36]
Further averments are made in the present case which, for the reasons stated above,
take the case outwith the boundaries of res judicata, do not allow complete dismissal on the
basis of irrelevancy and do not cause this action to be an abuse of process.
[37]
But it would be entirely inappropriate for our court system to deal with this case in
its entirety (or indeed each of the many other cases in the cohort) when the generic issues
have already been placed before a Lord Ordinary and the Inner House and an appeal has
18
not been allowed to proceed to the Supreme Court. Such duplication is unacceptable. The
pursuers in McManus, in seeking an appeal to the Supreme Court, recognised that the
decision would affect all other pursuers. It would be manifestly unfair to re-litigate the
same issues. My findings in McManus were general findings in respect of all future
residents of the site. It is not appropriate that the court and the defender should be put to
the time and expenses of running the same proof again. The averments in the present case
which are also in McManus are irrelevant insofar as they are said to show the alleged
breaches of duty averred in that case and repeated here.
[38]
There is some degree of force in the defender's argument that where in the lead
action the evidence now sought to be adduced could have been led, and should have been
recognised as requiring to be lead, a fresh action should not proceed. But to get there the
defender requires res judicata, or a complete lack of relevancy or abuse of process to apply to
all averments in the present case and I have concluded that they do not.
[39]
The outcome I have reached is therefore not one submitted on behalf of either party:
the pursuer seeks to allow the action to proceed in full; the defender seeks dismissal. I shall
allow the action to proceed but only in a restricted form. I emphasise again that the
decisions reached in McManus about the allegations of breach of duty made there, and
substantially covered in the pursuer's averments in this case, cannot of themselves be re-
litigated. The Practice Direction allows me to determine appropriate further procedure.
Having already dealt with the issues in a debate, and noting the likely need for at least some
further factual evidence, it will not be appropriate to fix a further diet of debate. There will
have to a proof before answer, albeit in restricted scope.
[40]
Before I determine what remaining issues are to be dealt with at the proof before
answer I require to hear from parties. Without prejudice to that generality, I will require to
19
consider: (i) whether any of the new factual averments were, in effect, already advanced
and dealt with in McManus; (ii) whether any of the new factual averments can support any
of the alleged breaches in McManus which are also pled here; and (iii) whether the factual
averments made and decided upon in McManus have any bearing on the further breach of
duty now alleged. It is possible that some reference to the evidence in McManus may be
required for contextual purposes and it may well be that the summaries of the evidence in
my Opinion in that case and in the Opinion of the Inner House suffice in that regard.
[41]
I shall therefore fix a by-order hearing, to take place in early course, to be addressed
on these matters. Once I have heard from parties at the by-order hearing, the limited
number of issues to be dealt with at the proof before answer will be identified and any
averments which are not allowed to be the subject of evidence will be excluded from
probation.
Disposal
[42]
On res judicata and abuse of process, I shall sustain the sixth and eighth pleas-in-law
for the pursuer and refuse the first and second pleas-in-law for the defender. On relevancy,
I shall sustain the third and fourth pleas-in-law for the defender, but only to the extent noted
above. A by-order hearing will be fixed in order to identify the precise scope of the proof
before answer. In the meantime all questions of expenses are reserved.
