New Petitions

The three minutes has been well emphasised, so I will try my best. As you know, lawyers do go on.

Thank you for giving me the opportunity to address you. Since I have only three minutes, I will go speedily to what I want to say.The petition is about consideration of our system of civil justice, which is based on written case. That means that each party is supposed to put its full case in writing before the court. The reason for that is to give notice to each side about what the case is and to show that the case is relevant in law. That is all very laudable, and has been described as the beauty of the Scots system. That is right—if it works properly. However, it does not.Asbestos cases are all one-sided. The case authorities are the judges who consider the system. The pursuer—the person who is taking the case—has to put everything into the written case, whereas the judicial authorities say that the defender—the person whom the claim is against—does not have to do anything. I will give you an example. We all know that there is a QE2 and that it was built between 1966 and 1968 by John Brown and Company Ltd of Clydebank. We all know that there is asbestos on the QE2—we have only to go and look at it. We all know that the asbestos was put in by joiners and laggers and that installing the asbestos would disturb it, exposing the joiners and laggers. We also know that it was well known in the late 1960s that asbestos was extremely dangerous in those circumstances.However, when it comes to the court case, the pursuer—the victim—states all that, and there is a pure denial of it by the defender. In other words, the defender denies, in the Scots courts, matters of historical fact—matters that are obvious and that are known by everyone. Those are called skeletal defences. Despite the fact that the case authorities think that that it is regrettable and unjust, they say that the pursuer has to prove his or her case. The defender can continue to deny everything, despite the fact that the position is obvious.We sued the council in Glasgow over the Red Road flats. Everyone in Glasgow knows that there was asbestos in the flats—a 1967 survey showed that that was the case. The council was negligent, but it denied that there was asbestos in the flats. Scottish pleadings allowed it to do that. Another example is Dalmuir, a well-known asbestos factory near Clydebank, where Turner and Newalls—one of our biggest asbestos producers—was negligent but is allowed to deny everything. The effect of that is delay in our pleadings and in our process. We are not allowed to receive interim payments on the base of written case because of the denials. The costs go up, the hearings take much longer than three years and we are denied jury trials.I am acting for people who have no time. They are dying of mesothelioma, and I have to tell them that I am sorry, but I cannot get them an interim payment or a jury trial because their employer is allowed to deny that there was any asbestos in the place that they worked in.We must ensure that the growing number of mesothelioma cases that are arising receive proper civil justice, rather than the charade that goes on in the Scottish courts.

One way of doing that would be to give the courts and the pursuer greater powers to force the defender into stating a candid position. In other words, defenders could not deny obvious facts.

Yes. That does not happen at the moment. The situation in the Scottish courts is very much hands off.

Asbestos-related illnesses are probably the hardest cases. There are hard cases where people are dying for other reasons, but I am dealing with someone whose life is draining away from them. I cannot get the case through the courts in time to get them the payment in advance to improve their quality of life and to help them when they are ill. There is no point in getting them damages just before they die. If they die, the widow and the family have to carry on the case—that adds to the grieving process.You are right—asbestos is the most obvious case. We know about John Brown's and so on, but there will be other cases where it is obvious that what is happening is a charade and an abuse of the system, because it delays payments.

Yes. We would have to give power to the court, and to the person who was pursuing the case, to force the defenders to look behind the written case. If the defenders are saying that John Brown's did not exist, they should be asked for proof. If a post-mortem report says that the cause of death was mesothelioma, the defender should be required to prove that it was something different. There must be better case management and greater control by the courts. Initiatives to force defenders to state a candid position should be introduced on behalf of the pursuer. At the moment, defenders will not do that.

The cases that I am talking about are with the Court of Session.

Yes. It is a Court of Session problem that is passed down to the sheriff courts, although jury trials are not possible in the sheriff courts.Some thought has been given to the reform of procedures—not because of the problems that I have described, but because cases go to the door of the court. That issue has been acknowledged, but the courts have not recognised or addressed it. Instead, they have said that the case of the pursuer needs to be as bare as that of the defender.

Yes. I do not mind stating a full case, providing the witnesses and producing all the evidence that I have. However, defenders are not forced to do that; if they were, courts would get to the nub of the case and would not be faced with a flak-and-blunderbuss approach.If the medical evidence was being disputed, we would know that that was the dispute in the case—not whether John Brown's existed or was negligent. We would get to the nub of the case, which would save time and effort.

The problem is acute. I am considering about 900 cases of asbestos-related illness, 450 of which are with the Court of Session, and the number of mesothelioma cases, which are the worst cases, is due to rise. All those cases are going to court, and in every case I have to re-prove everything.

I have to procure an expert's report, telling me that there was asbestos at John Brown's, that the shipyard owners knew about the dangers of asbestos, and that the steps that should have been taken were X, Y and Z. I must do that for every individual case.

The cases date back to the 1950s. Some were recorded in the late 1940s, but the most obvious cases of negligence are mainly from the 1950s and 1960s, when people knew of the dangers of asbestos.

It takes about three years for a case to go through court, from beginning to end. One of the reasons for that is the court system. The other reason is that I have to go through the entire procedure for each case and then, as a matter of practice, the defenders in the case settle the case only on the morning of the hearing.

I am dealing with a mesothelioma case for a widow who had been pursuing a case for three years. All the evidence was available and everything had been lodged. I received an offer to settle the case at 8 o'clock on the morning of the hearing.

It was reasonable. We negotiated further compensation, and the case was settled fully—there was no discount—and we got the full damages payment that morning. Why is the incidence of the hearing—which is set at an arbitrary time, by the court—the time to settle a case? Why can cases not be settled long before? Why can defenders not come forward and say that they will make an interim payment and that, while other things may be disputed, they will discuss the real nub of the case with us?Instead, I had to prepare for a hearing, produce evidence to prove that the man was employed by the shipyard—despite the fact that his certificate of apprenticeship was sitting there—draft in an expert to testify that the company was negligent and knew about all the documents, and prove that John Brown's existed and that the QE2 was built there.I also had to prove—despite the fact that the post-mortem report contained nothing to suggest otherwise—that the man died from mesothelioma, and to prove the case for damages. I then had to put a widow in the box to tell the court how bad she felt about her husband's death.

I know exactly what you mean. I understand that that might seem to be against common sense to someone who is not involved in the system, and the idea of lying comes to mind. However, the court has ruled that it is legitimate for the defenders to deny everything. The courts say that the pursuer has to prove their case, and that all the defenders have to say is that it is denied.The court is allowing the defenders to deny everything, which is part of the problem, and it is showing no signs—either through judicial decisions, which I have rehearsed in the petition, or through examining its procedures—of addressing that issue. That is why I have had to approach the Scottish Parliament.

In no case that I am dealing with will the man or woman who is suffering from mesothelioma have their case settled before they die.

One case in the past three years has been settled.

I settled one case for a man who is dying of mesothelioma. In all the other cases, the person died while they were waiting.

Not all the 400-odd cases concern mesothelioma; however, the number of such cases is increasing. Probably at least 33 to 50 per cent—and rising—of the cases are mesothelioma cases. I am dealing with cases in which the pursuers are trying to get the case through court, but are dying. I must be honest and say that I shall not settle those cases before the pursuers die.

Despite the fact that I have given everything I can—I have submitted every piece of evidence and everything on the written case, as well as all the witnesses—the person will die before I settle their case.

Not all the pursuers are dying. About 33 to 50 per cent of those cases concern mesothelioma—the worst cases—and the person will die within 14 to 18 months.

Yes. There is another irony because, when the person dies, the case will be strengthened. It never ceases to amaze me that insurance companies do not do anything sooner, as it would save them money if they settled the case before the person died. However, they go through the system.The case of the man who is dying will not get to a hearing for a further two years. The widow and family who will take on the case after the person dies will have to wait another two years before they get a hearing, and on the morning of the hearing I will receive an offer from the defenders. In 90 per cent of cases, I will receive a good offer, but that will not happen until the morning of the hearing.

That could be permitted through the rules of court. It may require an act of sederunt by the Lord President.

If there was a problem with the act of sederunt being ultra vires, it might be a matter for legislation.

Yes. It is all very well for lawyers to examine the system, but they do not recognise the problems. However, there is massive public interest in the cases, and I am frustrated—that is why I am here. I am faced with such cases day after day, week after week, and I am fed up of telling people who are dying of mesothelioma that I cannot do anything. I am trying my hardest.

The petition contains an excerpt from the British Journal of Cancer. The number of mesothelioma cases is rising and is not due to peak until 2018. The incidence of cases of mesothelioma is higher per annum than that of cervical cancer.

No. I am just worried that the matter might be referred to the people who are responsible for the system, who will not change it because they are part of it.

I mean the judiciary, the Lord President or the judges. The judges have said, in court decisions, that the present situation is okay. That is what I am worried about.

Yes. One of those committees should call for evidence from the people who are responsible for the rules and the system.

Yes. We contacted Gordon Jackson because his constituency covers the Govan shipyards and the Fairfields yard, and a lot of his constituents are pursuing cases. Des McNulty's constituency covers Clydebank, where John Brown's is based, and Duncan McNeil's constituency covers Inverclyde, where there is also shipbuilding. We raised with all those MSPs the problems of their constituents, and their advice was that we had no choice but to take the matter to the Scottish Parliament.

My firm deals with 90 per cent of the asbestos-related cases in Scotland.

Yes.

Yes. The worst cases involve mesothelioma, and their number is due to rise. Increasingly, younger people are contracting the disease. I am dealing with the case of a 42-year-old man with three children who has mesothelioma.

A jury decision would highlight the fact that the judges give very low awards that ordinary men and women in Edinburgh think should be greater. No one is going over the top about it. However, the public think that £50,000 is too little for a man's pain and suffering and loss of expectation of life at the age of 45. I cannot get a jury to highlight that fact, because of the judicial system. The defenders make the case complicated on the face of it, although they have no intention of disputing it.I would like to get a jury trial for a mesothelioma case, as I would like to know what a jury would make of a person's pain and suffering. That would signal to judges—if the matter went before a judge—that £50,000 was too little.

One considers such things and wonders why there is a delay.I have a further point to mention, although I know that the committee is pressed for time. Members have probably heard about the liquidation that is taking place of Chester Street Insurance Holdings—formerly Iron Trades Holdings. The company may pay only a percentage of the damages that are due, less the legal expenses, which makes the situation even worse. All the expense of pursuing cases will be met by victims.

That figure of 900 is static just now. An increase is forecast for next year and for the year after that. I think that we are talking about there being several thousand cases by 2005.

I find that they are immune to that type of approach.

I have, over the years.

Do you want me to comment on that idea?

I support the view that we should not let the insurance companies get away with not paying rightful damages and that the Government should not have to step in, allowing the companies to benefit from the situation. Additionally, ex gratia payments tend to be banded and do not allow for substantial damages. A set payment is allocated for certain damages, which tends to be quite low. I would be a wee bit worried about ex gratia payments, although I recognise where Dorothy-Grace Elder is coming from. In the first instance, the Government should give the pursuer and the courts the power to ensure that people get rightful compensation.

I thank the committee very much for its time and attention to this very important issue.