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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2024] CSIH 26

A91/13

Lord President

Lord Malcolm

Lord Pentland

OPINION OF THE COURT

delivered by LORD CARLOWAY, THE LORD PRESIDENT

in the reclaiming motion

in the cause

LAURA McCLUSKEY

Pursuer and Respondent

against

SCOTT WILSON SCOTLAND LTD

Defenders and Reclaimers

____________

Pursuer and Respondent: R Sutherland; Allan McDougall

Defenders and Reclaimers: Barne KC; Reid KC; CMS Cameron McKenna Nabarro Olswang LLP

28 August 2024

Introduction

[1]

This reclaiming motion (appeal) concerns a plea of res judicata. The pursuer is one of a

cohort of persons who have raised actions against the defenders for personal injuries arising

from the same, or substantially the same, negligence. A previous lead action from amongst the

cohort has already been decided (McManus v Scott Wilson Scotland [2020] CSOH 47; and in the

Inner House 2021 SLT 985). The defenders contend that the issues which the pursuer now

wishes to raise are res judicata; they have already been judicially determined. The appeal

concerns the effect of a lead action in which generic issues have already been litigated.

The Practice Direction and Procedure

[2]

Before the advent of group proceedings, the Rules of Court provided that, if the Lord

President was of the opinion that an aspect of procedure was unsuitable for the efficient

disposal of proceedings, he could direct that the unsuitable aspect be disapplied, and an

alternative procedure substituted (RCS 2.2(1) and (2)). The Lord President required to consult

with the relevant parties before making such a direction (RCS 2.2(3)).

[3]

The pursuer was one of a large number of litigants whose homes had been built on

contaminated land. Practice Direction No 1 of 2013, Personal Injury Actions relating to alleged

ground contamination at the Watling Street Development in Motherwell, was issued under RCS 2.2.

It applied to actions raised by the residents, or former residents, of properties in that

development. This included the present action and that brought by Angela and Robert

McManus. The Direction allowed for the nomination of a Lord Ordinary to manage the actions.

It gave the judge extensive case management powers (para 10) to facilitate the speedy

determination of the actions (para 10 (p)). It required (para 13) the nominated judge to:

"give early consideration to whether in order to determine ... any generic issues in the

actions, the lead actions which the parties have identified are appropriate to be

progressed at an advanced rate."

[4]

The pursuer's action was raised in September 2012. It was sisted initially in January

2013 and periodically thereafter pending "investigations" in terms of the Direction and then, in

May 2016, to await the resolution of the McManuses' action in the Outer, and then the Inner,

House.

[5]

The McManuses' action had been brought against the main developers (City Link

Development Co), their landlords (North Lanarkshire Council) and the defenders, who were

sub-contractors for the investigation of the ground conditions. On 13 January 2016 the cases

against the developers and the landlords were dismissed (McManus v City Link Development Co

[2016] Env LR D1 ). The dismissals were reclaimed, but that against City Link was abandoned

and, on 14 February 2017, the appeal against the landlords was refused (2017 Hous LR 84). The

case then proceeded, slowly, against the defenders.

[6]

On 10 July 2018, parties were appointed to lodge a joint statement of issues by

25 September 2018. On 12 February 2019 the scope of the proof (which had not yet been

allowed) was limited initially to four issues ((a) to (d)) on the defenders' Statement of Issues

(No 107 of process). These were, in summary: (a) were the defenders negligent in the course of

the remediation of the Watling Street site; (b) if so, in what respect were they negligent; (c) if

there was a breach of duty, did that cause there to be contamination at or around the houses in

which the pursuers lived; and (d) if it has resulted in contamination at or around the houses

what substances were present in the pursuers' houses and in what quantity? The McManuses'

Statement of Issues was longer, but paragraphs (a) to (h) were said by them to reflect the

defenders' issues (a) to (d).

[7]

On 18 March 2019 the court indicated that all of the items on the defenders' Statement (ie

paras (a) to (d)) were to be determined after proof. However, when proof was allowed by

interlocutor dated 25 June 2019, the scope was limited to the first two issues on that Statement.

These were, as later described by the court on a reclaiming motion (2021 SLT 985 at para [6]):

"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?

Did the defender breach any of those duties in the course of the remediation of

the Watling Street site?"

Issues of causation were taken out of the equation. The interlocutor of 25 June, which set the

parameters for the lead action, was not reclaimed.

McManus v The Defenders

Pleadings

[8]

In order to consider the res judicata plea, a comparison has to be carried out between

what was decided in McManus and what the pursuer seeks to prove in this action. In their

averments, the McManuses said that, prior to the development, the site had been in various

uses, including an iron and steel works and a manufacturer of aircraft instruments and x-rays.

Electroplating had been carried out by previous occupants. These uses left contaminated waste

on site, including solvents in the form of volatile organic and semi-volatile organic compounds

(VOCs and SVOCs). These released vapours which could harm the central nervous system and

increase the risk of cancer.

[9]

The pleadings provide a detailed history of the development project. Put short, the

McManuses' case against the defenders was that they were acting as environmental consultants

on the project, and that it was their responsibility to: (i) investigate the extent of contamination

on the site; (ii) advise on remediation which would make the site suitable for residential

development; (iii) prepare a scheme of remediation; and (iv) administer and supervise the

remediation contract. That included providing advice on the potential groups at risk from the

contaminants on site, including future occupants, how harm could arise from those

contaminants, and how to prevent such harm from occurring. Specific criticisms included that

the investigation did not take proper account of the known previous uses of the site. Soil

sampling undertaken at the outset of the development did not comply with established practice

for site investigation. Despite the results of the soil sample testing indicating the presence of

VOCs and SVOCs, no further investigation was carried out as to the extent of contamination by

solvents. During remediation works, contrary to the agreed course of action, contaminated land

was not removed and replaced with clean material, but was levelled instead, resulting in further

distribution of contaminants around the site. The defenders issued a Certificate of Substantial

Completion for the remediation work. The defenders knew of, and provided advice in relation

to, the use of waste material to form a landscape bund onsite. They failed to investigate and

advise on the nature, concentration and distribution of the contamination of the site by solvents,

as a reasonably competent environmental consultant would have done. They failed to do this in

1990, and missed further opportunities to do so in 1992, 1993, 1994, 1995 and 1997. Reference

was made to the defenders having recommended, during remediation works, that a "suitable

thickness" of topsoil and subsoil be provided in garden areas. Subsequent investigation had

found that less than the recommended depth of clean topsoil was in place in the gardens on

part of the site.

[10]

In 2010 and 2011, an environmental assessment was carried out by North Lanarkshire

Council. This demonstrated the presence of a variety of contaminants, including VOCs and

SVOC.

The Proof and Answer

[11]

The McManuses led evidence from Elizabeth Copland, a geologist. She testified that the

defenders had failed to prepare an initial competent contamination desktop study. This had led

to data gaps regarding the layout of the buildings which had formerly occupied the site and the

processes which had been carried on within those buildings. Potential sources of contamination

had never been identified. This was the McManuses' central criticism of the defenders. The

failure to carry out a competent desktop study was contrary to ordinary and accepted practice.

No consideration was given to VOCs due to the defective investigation at the outset.

[12]

The defenders adduced Philip Crowcroft, a specialist in "land condition". He testified

that the defenders had acted in accordance with the common, accepted practice at the time. The

defenders had been entitled to rely on the Regional Chemist's testing. The defenders' reports

had been clear on what they had done and had cautioned that problems might still exist

between the test bores. This too accorded with the practice at the time. The developers would

be expected to pick up any undiscovered contaminants by sight and smell when digging

drainage ditches and foundations.

[13]

The Lord Ordinary found ([2020] CSOH 47) that the defenders had owed a duty of care

to any future residents of the site. He held that they had not breached that duty. He preferred

the evidence of Mr Crowcroft to Ms Copland on the basis of their relative experiences and

qualifications. Contrary to the pursuers' submissions, he found that the defenders had carried

out a desktop analysis and had done so using the appropriate level of skill and care (see Lord

Ordinary's Opinion at para [56]). They had investigated the site in accordance with normal

practice at the time. They had been entitled to rely on the expertise of the Regional Chemist

(ibid paras [57] and [59]). The defenders had made it clear that there might be undetected areas

of contamination. The Lord Ordinary repelled the McManuses' pleas that they were entitled to

reparation because they had suffered loss, injury and damage through the fault of the

defenders. He sustained the defenders' fourth plea that the McManuses' averments were

unfounded in fact and, on that basis, granted decree of absolvitor.

[14]

The McManuses reclaimed, largely on the basis that the Lord Ordinary had erred in his

approach to the evidence and had reached erroneous decisions of fact. On 7 July 2021 the

reclaiming motion was refused (2021 SLT 985). The Court did not consider that the Lord

Ordinary had erred in preferring the evidence of the defenders' expert. The Lord Ordinary had

not strayed beyond the permitted scope of the proof.

[15]

The McManuses applied for permission to appeal to the Supreme Court of the United

Kingdom. Their grounds of complaint in the application are not easy to follow. They appear to

be that the McManuses were disadvantaged because of the Lord Ordinary's decision not to

allow causation to enter the scope of the proof. The defenders had in some way engineered a

conflict of interest on the part of one of the McManuses' experts which meant that he was not

available at the proof. The Lord Ordinary then asked the defenders' expert about causation,

when the pursuers had no witness to counter this. In the application for permission, the

McManuses stated:

"Point (iv) Class Action Rights

The rights of numerous other litigants who form, with the Appellants, an effective `class'

and whose health and safety is currently compromised may be adversely impacted by

the decision in the instant case which is the lead action in what is effectively a Class

Action."

The pursuer's pleadings

[16]

Following the refusal of permission to appeal by the UK Supreme Court in McManus,

the pursuer revived the current action. Like the McManuses, the pursuer sought damages

based on the defenders' breach of duty in relation to her home on the Watling Street site. Her

averments are broadly the same as those of the McManuses. She makes the same averments

regarding the historic use of the site, the history of the development project and the defenders'

involvement in it at each stage (arts 3 16).

[17]

The pursuer makes additional averments concerning air sampling carried out in 2011,

when vapours containing harmful levels of SVOCs and VOCs were said to have been found

(art 18). The defenders' remediation strategy had been based on the search for heavy metals.

Remediation had focussed on the removal of these contaminants or capping the affected areas

with clean soil. There had been no investigation of whether the ground was contaminated with

VOCs. Capping risked leaving VOCs on site (art 19). A covering of topsoil was intrinsic to the

remediation strategy. Though the defenders had recommended, at numerous times during

development, that a "suitable" depth of topsoil was needed in garden areas, they had not

specified what "suitable" meant. No consideration had been given to front gardens. Soil

sampling, which had been undertaken in 2011, had demonstrated no subsoil or topsoil in

several sampled locations. The defenders' failure to test for VOCs and to provide proper topsoil

capping had led to the continued presence of contaminants (art 20).

The Lord Ordinary's decision

[18]

At the Procedure Roll, the defenders argued that the pursuer was bound by McManus.

The pursuer was attempting to re-litigate the issues which had already been determined in that

action. Her claim was therefore res judicata and ought to be dismissed. On broadly the same

grounds, the defenders argued that the pursuer's action was irrelevant and amounted to an

abuse of process. The Lord Ordinary did not agree.

[19]

The Watling Street actions were covered by the Direction which had been made after

consultation with the parties. The Direction did not state that the outcome of the lead action,

which was McManus, would be binding on the others. However, the issues which had been

considered in McManus were generic. Those were the nature and scope of any contractual and

delictual duties owed by the defenders, to whom they were owed, and whether there had been

any breach of those duties. The generic nature of those issues could readily be inferred from the

submissions made by the McManus pursuers in support of their application for permission to

appeal to the UK Supreme Court.

[20]

A plea of res judicata was based on considerations of public policy, equity and common

sense. These would not tolerate repeated litigation of the same issue between the same parties.

The key questions were what was litigated and what was decided (Grahame v Secretary of State

for Scotland 1951 JC 368 at 387). Reference to the "same parties" could include parties whose

interests were sufficiently similar (RG v Glasgow City Council 2020 SC 1 at para [27]). All the

pursuers had the same interests in the generic issues, which had been determined in McManus.

Applying RG v Glasgow City Council, the interests of the pursuer were sufficiently similar to the

interests of the pursuers in McManus to meet that part of the test for res judicata.

[21]

The media concludendi were not the same. The pursuer made averments of an additional

breach of duty by the defenders. These were that there were investigations which the defenders

ought to have carried out which would have had implications for their remediation strategy.

Even if these matters had been wrongly omitted from the pleadings in McManus, it could still

not be said that the media concludendi were the same (Primary Health Care Centres (Broadford) v

Ravangave 2009 SLT 673, at para [23]). That part of the test for res judicata was not met and the

defenders' plea fell to be repelled.

[22]

For the purposes of relevancy, some of the same considerations, namely public policy,

equity and common sense, applied (Friel v Brown 2020 SC 273, at para [19]; Greig v Magistrates of

Kirkcaldy (1851) 13 D 975 at 981). A decision reached in a first instance civil case, which had

been appealed and affirmed, ought to be treated as sound. It was not equitable, and did not

accord with common sense, to have the defenders face the same issues in a large number of

cases, when there had already been a lead action. The decision in McManus was a precedent.

The decision in McManus on breach of duty could not be re-litigated. To the extent that the

pursuer's case contained the same averments as in McManus regarding breach of duty it was

irrelevant. However, due to the further averments of breach of duty, which could affect the

outcome, the action could not be dismissed in its entirety.

[23]

To dismiss a case on the basis of an abuse of process was draconian, and ought only to

be done as a last resort (Friel v Brown at para [17]). Given the further averments and the

additional alleged breach of duty, the case was not entirely ruled by McManus. The action

should not be summarily dismissed on the basis that it was an abuse of process.

[24]

The Lord Ordinary considered that the action could proceed to a proof before answer in

restricted scope. He did not determine that scope; ie by stipulating what matters of fact,

different from those found in the previous proof, required inquiry. Instead, he fixed a By Order

hearing at which he would require to be addressed on: (i) whether any of the new averments

had already been dealt with in McManus; (ii) whether any of the new averments could support

any of the breaches which had been alleged in McManus; and (iii) whether the averments

determined in McManus had any bearing on the breaches now alleged. After hearing parties, he

would identify the limited number of issues to be dealt with at proof, and exclude other

averments from probation. The By Order hearing did not happen because, in the meantime, the

Lord Ordinary granted leave for the defenders to reclaim his decision.

Submissions

Defenders

[25]

The plea of res judicata was based upon public policy, equity and common sense

(Grahame v Secretary of State for Scotland at 387). It was available to support the good

administration of justice by limiting duplicative litigation (Virgin Atlantic Airways v Zodiac Seats

UK [2014] AC 160 at para 25). The court had to look at the reality of what had been decided (RG

v Glasgow City Council at para [27]; see generally the requirements in Primary Health Care Centres

(Broadford) v Ravangave at para [21]). The only issue upon which the defenders had failed was

media concludendi, yet these were clearly the same as those in McManus.

[26]

The Lord Ordinary in McManus had found that the defenders owed a duty of care to all

future residents, but that they had fulfilled that duty. His findings were adhered to on appeal.

The other actions had been put on hold pending resolution of McManus. A cohort of similar

cases should be managed efficiently and expeditiously and in a manner which was fair and

proportionate to the interests of all involved (Depuy International v Gilchrist 2024 SCLR 141 at

paras 43 and 46). Those interests included the right of the defenders under Article 6 of the

European Convention to have their civil obligations determined within a reasonable time. To

allow the pursuer's case to proceed on a limited, and insignificant, difference in pleadings,

would be in conflict with that right.

[27]

There were three routes by which the pursuer's claim could be barred from proceeding:

res judicata; abuse of process; or relevance. The Lord Ordinary erred in refusing to sustain the

defenders' plea of res judicata. A plea of res judicata could only succeed if: (i) there had been a

prior determination pronounced by a court of competent jurisdiction; (ii) there was a decree in

the prior action in foro contentioso without fraud or collusion; (iii) the subject matter of the two

actions was the same; (iv) the media concludendi in the two actions were the same; and (v) except

where the earlier decree was in rem, the parties to the second action were the same as, or

representative of, the parties to the earlier action, or had the same interest as those parties. Only

(iv) and (v) were in dispute.

[28]

The Lord Ordinary had been correct to conclude that the interests of the pursuers in

McManus and in the present action were sufficiently similar to support the plea. The issue

therefore came down to whether the media concludendi were the same. The question was what

was litigated and what was decided (RG v Glasgow City Council, at para [27]). In McManus what

was litigated and decided was the nature of any duty that the defenders owed to future

residents, and whether that duty had been fulfilled. Those issues were conclusively answered.

The media concludendi were the same. McManus was based on failures in the investigation and

remediation scheme as designed by the defenders. That was precisely what the pursuer's case

was about. A plea of res judicata could not be defeated by introducing averments which simply

bolstered a failed claim. This was particularly so when a cohort of similar actions were being

managed as a group. The pursuer's new averments addressed the lack of testing for solvents

and the risk of migration of VOCs, both of which had been addressed in the closed record in

McManus. There was a new allegation about topsoil capping, but the issue of capping had been

in the McManus pleadings too. These averments did not give rise to new media concludendi; they

were merely an amplification of the case addressed in McManus. The key point was that, once

there had been a decision that there was no breach of duty, that was the end of the matter. One

could not get over that hurdle by salami slicing the issue of breach of duty by reference to

different or new breaches.

[29]

On relevancy, the Lord Ordinary erred in determining that he could not conclude that

the case in its entirety would necessarily fail.

McManus determined that the defenders had

fulfilled the duties which they owed to future residents. That rendered the pursuer's case

irrelevant. In any event, before deciding whether a proof was merited, the Lord Ordinary ought

to have determined which of the pursuer's averments were irrelevant and whether what

remained was a relevant case.

[30]

A case which was obviously without merit could be categorised as an abuse of process

(Clarke v Fennoscandia (No.3) 2005 SLT 511 at paras [17], [40] and [44]). It had been recognised in

England and Wales that an action which was part of a group of related or associated actions

could be dismissed as an abuse of process (Ashmore v British Coal Corp [1990] 2 QB 338; Allsop v

Banner Jones [2022] Ch 55). It was an abuse of process in a case within a scheme of marshalled

litigation to seek to avoid the outcome of the lead cases (Society of Lloyd's v Fraser [1998] CLC 1630

1630 at 1650). McManus had now been finally disposed of. Although dismissal as abuse of

process was a measure of last resort, matters had to be viewed in the context of the procedural

history of the group of actions, and the fact that the pursuers in that group had continuity of

both solicitor and counsel throughout. The pursuer sought to relitigate the same issue, using

substantially the same evidence in the hope of obtaining a different outcome. That fell squarely

within the definition of an abuse of process given in Clarke.

Pursuer

[31]

The Lord Ordinary did not err in refusing to sustain the defenders' plea of res judicata.

The pursuer had not been heard fully on the merits of her claim. There was no contractual

agreement with the defenders or between the pursuers that the outcome of McManus was to be

binding.

The pursuer was a different person to the pursuers in McManus. She was suing as the

occupier of different premises. She had her own separate legal interest in the subject matter of

the action. A common interest in a subject matter was different from identity of position in two

separate claims for damages (MacArthur v County Council of Argyll (1898) 25 R 829). It could not

be said that, because two persons litigated against the same defender on the same grounds but

each for their own separate legal interest, those persons were the same parties in the sense

necessary to support a plea of res judicata. A common factual background was a relevant

starting point (RG v Glasgow City Council at para [31]) but, where an individual was suing for

damages arising from personal injury, the two processes were not identical. The court would

be entitled to give weight to some, if not all, of the facts determined in the McManus action.

However, the pursuer's case was not pled on the same basis as McManus. Her case did not

involve a rehearsal of the same facts and expert evidence as in McManus. Dismissal of the

pursuer's action on the basis of res judicata would amount to a significant interference with a

fundamental right of access to justice.

[32]

To sustain a plea to the relevancy of an action, the court required to be satisfied that the

case could not succeed, even if the pursuer proved all that was averred. The onus was on the

defenders to show that the pursuer must necessarily fail. It would cause injustice to deny the

pursuer the opportunity to prove her averments. Until the Lord Ordinary heard parties on:

(i) whether any of the new averments were, in effect, already advanced and dealt with in

McManus; (ii) whether any of the new averments could support any of the breaches alleged in

McManus which were also pled in the present case; and (iii) whether the averments determined

in McManus had any bearing on the further breach of duty now alleged, and determined the

scope of the restricted proof, he would not have given a final, reasoned conclusion on the

question of relevancy. He had been entitled to decide that a restricted proof ought to be

allowed.

[33]

The Lord Ordinary was correct to determine that the pursuer's action ought not to be

summarily dismissed on the basis that it was an abuse of process. Whether a particular

litigation amounted to an abuse of process depended upon the circumstances (Green's

Encyclopaedia, vol 1, Abuse of Civil Process, paras 51 77). Every person had a right of access to

the courts to settle disputes. Dismissal on grounds of abuse of process was a draconian power

which ought to be regarded as an option of last resort (Tonner v Reiach and Hall 2008 SC 1). It

was only exercisable in cases which might otherwise be considered manifestly unreasonable or

inconsistent with the court's obligations in the administration of justice.

Decision

[34]

In Grahame v Secretary of State for Scotland 1951 SC 368, it was said (LP (Cooper) at 387)

that:

"The plea [of res judicata] ... 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".

There are two questions to be answered. Is this action being litigated between the same parties?

If so, does the issue proceed on substantially the same basis?

[35]

On the first question, it is obvious that the pursuer is not the same as those in McManus.

That is not the end of the matter. As was said in RG v Glasgow City Council 2020 SC 1 (LP

(Carloway), delivering the Opinion of the Court, at para [27]):

"The reference to the `same parties' [in Grahame] should not be construed too strictly. It

is sufficient if the interest of the parties in the first and second action is the same".

The cases cited gave examples of the members of the same association suing sequentially (Gray

v McHardy (1862) 24 D 1043), those representing the same navigational interests (Glasgow

Shipowners' Association v Clyde Navigation Trs (1885) 12 R 695 ) and beneficiaries under the same

will (Allen v McCombie's Trs 1909 SC 710). In Gray, it was made clear (LJC (Inglis) at 1047) that,

contrary to the Lord Ordinary's (Ardmillan) thinking, the answer was not that the previous

decision would form a precedent, which would require to be followed in the later action, but

rather that the plea of res judicata ought to be sustained (cf Greig v Magistrates of Kirkcaldy (1851)

13 D 975, Lord Cuninghame at 981).

[36]

In the present situation, the pursuer, the McManuses and others were the subject of the

Practice Direction No 1 of 2013. McManus became the lead action. There was no objection to

that occurring; all parties being represented by the same counsel and agents. The McManuses'

application for permission to appeal to the UK Supreme Court makes it clear that the cohort

were regarding McManus as if it were a lead in a class action. The whole purpose of having a

lead action is that issues common (generic) to all the actions can be litigated in the one case. It is

a corollary to that that the decision on these generic issues will apply (that is be binding) on all

the litigants. The interests of the pursuer on the generic issues were identical to those of the

McManuses. For the purposes of res judicata, the interests of the parties in all the cases are taken

to be the same.

[37]

The second question is whether the issue in McManus was litigated on substantially the

same grounds as the pursuer's case. In RG v Glasgow City Council it was said (LP (Carloway) at

para [27]) that:

"... 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 at

387)."

The media concludendi are the grounds of action (Trayner: Latin Maxims and Phrases, cited in

Primary Health Care Centres (Broadford) v Ravangave 2009 SLT 673, Lord Hodge at para [23]). The

result in McManus was the repelling of the McManuses' pleas-in-law that they had suffered

injury as a result of the defenders' fault and the sustaining of the defenders' plea that the

McManuses' averments were unfounded in fact thus meriting decree of absolvitor from the

conclusion for payment of damages. That is exactly the same as in this case. However, as was

said in Primary Health Care Centres (Lord Hodge at para [23]), citing Grahame, there should be

less focus on the conclusions and pleas and more on "the essence of the matter ... What was

litigated and what was decided".

[38]

The essence of the McManuses' action was an allegation of professional negligence on

the part of the defenders; that being their failure to detect contaminants in the ground upon

which the development was to take place. The issues which were set down for proof were, as

specified above, first, what duties did the defenders owe to the occupiers and, secondly, did the

defenders breach any of those duties. The Lord Ordinary determined that the defenders did

owe certain duties to the occupiers, notably to use the appropriate skill and competence of

environmental engineers, but that they had not breached their duty. They had acted in

accordance with the common and accepted practice at the time. That was what was litigated

and determined. The pursuer is trying to re-litigate that issue; that she cannot do as it is res

judicata.

[39]

The manner in which the pursuer seeks to circumvent the plea is to make additional

averments about particular solvents which should have been looked for and how they might

have been dealt with. These issues were all canvassed in McManus and dealt with by the Lord

Ordinary. Adding additional detail to the pursuer's pleadings does not change the essence of

what was litigated; the grounds of action remain the same, viz. whether the defenders were

professionally negligent when carrying out their investigations and making appropriate

recommendations.

[40]

For these reasons, the defenders' plea of res judicata ought to have been sustained. The

consequence of this is absolvitor since the plea is a peremptory one (see McPhee v Heatherwick

1977 SLT (Sh Ct) 46, Sheriff Macphail at 48, citing, inter alia, Forrest v Dunlop (1875) 3 R 15 ). The

reclaiming motion will be allowed accordingly and the Lord Ordinary's interlocutor of

23 January 2024 recalled.

[41]

The court is concerned about the Lord Ordinary's decision to put the case out By Order

for the purpose of being addressed on, inter alia, whether the averments which were unique to

this action had already been dealt with in McManus. That was an issue which must have been

central to any consideration of the res judicata plea. The Lord Ordinary ought to have been

addressed upon this in the submissions on the Procedure Roll. He ought to have been able to

determine it without the need for a further hearing. It ought simply to have been a question of

comparing the closed records. By Orders following a debate or proof ought to be relatively rare

events; they have the potential to add further unnecessary procedure and expense. Parties

ought to have addressed all reasonably likely outcomes following the evidence and/or

submissions. The Lord Ordinary ought to have dealt with all the issues arising; if necessary

having sought further submissions, preferably in writing, in the event of an issue unexpectedly

arising at avizandum.

[42]

In light of this decision, it is not necessary to address any issues of relevancy.

Abuse of Process

[43]

The sudden advent of "abuse of process" as a stand-alone concept in Court of Session

procedure, as distinct from being a ground of action, was described in Friel v Brown 2020 SC 273

(LP (Carloway), delivering the Opinion of the Court, at [17]) under reference to Tonner v Reiach

and Hall 2008 SC 1. It is not now disputed that the court does have a power to dismiss an action

summarily, but it is a draconian one which should be regarded as a last resort (Grubb v Finlay

2018 SLT 463 LP (Carloway), delivering the Opinion of the Court, at para [34] citing Tonner,

Lord Abernethy, delivering the Opinion of the Court, at para [123]). In Grubb it was said that its

use as a last resort applied particularly in a situation where decree is not sought under reference

to a particular plea. In this case, the bases for arguing "abuse of process" were broadly the

same as for the plea of res judicata. The system allows for the proper tabling and determination

of such a plea, usually at the Procedure Roll stage, without a last resort. Abuse of process is

much more of a term of art under English striking out procedure. It is certainly used in

situations in which a claimant seeks to avoid the consequences of generic issue determinations

(eg Ashmore v British Coal Corp [1990] 2 QB 338). This procedure differs from that in the Court of

Session.

[44]

It is at least interesting that in Greens Encyclopaedia the title Abuse of Civil Process,

(Blades (later Lord Blades)) is a reference to a cause of action. It begins (Vol I para 51) by

quoting from McGregor v McLaughlin (1905) 8 F 70 (LP (Dunedin) at 74) whereby:

"Everyone is perfectly entitled to have recourse to the forms of process, and the mere

fact that in the end his action turns out to be wrong will not subject him to a claim for

damages without the averment of something further".

[45]

In this case, the pursuer had sued the defenders, but she lost on the generic issues in

McManus. The defenders sought to categorise her attempt to revive her action as an abuse of

process, but they did not advance any basis for this other than that they maintained

(successfully as it turns out) that they have a good plea of res judicata. It is not necessary to

determine this issue, since the plea has been disposed of in the defenders' favour. Suffice it to

say that an action, which fails because a plea of res judicata is sustained, is not, per se, an abuse of

process.

Disposal

[46]

The court will allow the reclaiming motion, recall the interlocutor of 23 January 2024,

sustain the defenders' plea of res judicata and grant decree of absolivitor.