Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 102

A1378/91

OPINION OF LADY STACEY

In the cause

JOHN COLE & OTHERS

Pursuer;

against

ADVOCATE GENERAL FOR SCOTLAND

Defender:

Pursuer:  Christine; Allan McDougall

Defender:  Balfour;  Morton Fraser

3 July 2015

[1]        I heard counsel in a procedure roll discussion and gave an ex tempore judgment. This is a revised version of that judgment.

[2]        This is a procedure roll in which Mr Christine appears for the pursuers and Mr Balfour for the defenders.  The pursuers are the family of John Cole deceased.  In 1990 Mr Cole raised an action, which I will refer to as the 1990 action, for reparation for personal injuries averring that he had been negligently exposed to asbestos dust while employed by the Ministry of Defence.  He sued the Lord Advocate as representing the Secretary of State.  He averred that he had developed pleural plaques.  The parties settled the action by way of joint minute to which the court interponed authority on or around 14 June 1991.  The minute reserved to the pursuer the right to apply for further damages in terms of section 12(2)(b) and 12(4)(b) of the Administration of Justice Act 1982 in the event of his contracting mesothelioma, lung cancer or asbestosis provided that that occurred within 20 years of the date of the joint minute and that it was caused by the exposure to asbestos. 

[3]        In 2011 Mr Cole raised an action, which I will call the 2011 action, in which he averred that he had contracted mesothelioma as a result of negligent exposure to asbestos during the same period of employment by the same employer, that is the Ministry of Defence. Mr Cole died on 30 December 2011.  The present pursuers were sisted as pursuers in place of Mr Cole in 2012.  The 2011 action was abandoned by those pursuers by minute of abandonment in which decree of absolvitor was sought, lodged on or around 5 October 2012.  In July 2014 the present pursuers were sisted as pursuers in the 1990 action.

[4]        Before me this morning Mr Balfour argues that the matter is res judicata.  He submits that the order of the raising of the actions and the decree of absolvitor is unusual in that the 1990 action obviously was raised first, the joint minute which provided for provisional damages was entered into, and then about 20 years later the second action was raised. That action was disposed of by a minute of abandonment about a year later. A minute was lodged in the 1990 action after the abandonment of the 2011 action. Counsel accepts that makes the order in which the actions have been dealt with is unusual,  but he argues that does not affect the principle on which he relies. 

[5]        The essence of the plea of res judicata is set out conveniently in the book McPhail on Sheriff Court Practice at paragraph 2.104, to which Mr Balfour made reference.  That sets out the five requirements for a plea of res judicata which he argued are that the prior determination was made by a competent court; that decree was pronounced after contention by the parties, and that it may be settled by compromise; that the subject matter of the two actions is the same; that matters in contention are the same; and that the parties in the second action are either the same as, or are representatives of,  the parties in the first action.  Mr Balfour relies on the case of Forrest & Dunlop 1875 3 R 15 for the proposition that a decree in foro may be reduced but cannot be ignored.  He made reference to the Lord Justice Clerk’s dicta in that case where he says as follows on page 16:

“The question is too clear for doubt.  A decree in absence is not an in entity.  It will receive effect as long as it stands, though it may be brought under review by reduction or suspension, but a decree by default is a decree in foro.  It may be taken out of the way by a reclaiming note and in the event of the reclaiming days being allowed to expire through inadvertence, a remedy is provided.  It is also open to the party to bring a reduction of the decree on the ground that it was obtained through inadvertence in which case the court, although it will require a strong statement of facts to support such an application, has the power to award substantial justice.  But that is not the question here.  It is whether after decree of absolvitor has been pronounced and extracted it can be ignored and a new action brought as a matter of course.  I am clearly of the opinion that it cannot and that the interlocutor of the Lord Ordinary should be adhered to”.

 

Mr Balfour argues that that is the situation we are in today despite the fact that the order of events is different. Mr Balfour also relies on the dicta of Lord Shaw of Dunfermline in Glasgow & South Western Railway Co v Boyd & Forrest 1918 SC (HL) 14 at page 32 where his Lordship states the well-known dictum to the effect that the point in a plea of res judicata is “the question always is what was litigated and what was decided”.  Mr Balfour draws attention to the rest of his Lordship’s dicta in that case in which it is stated that the question relates to matters which come before the court again and again. The distinction is drawn between actions which are dismissed, which are said to be open to the pursuer to bring another action, and actions in which the defender is assoilzied when it is not open to the pursuer to bring another action.

[6]        In tackling the question of the unusual aspect of this case which is the order in which things happened and the fact that there was an interlocutor for provisional damages, Mr Balfour asks rhetorically what should have been done.  His answer is that the 2011 action should have been abandoned under rule of court 29.1.1(b) by seeking dismissal and paying expenses.  That would have left the matter of the original action open.  He also asks what would happen if nothing was done, that is if the 2011 action remained extant and the pursuers lodged a minute as they now have to proceed with the 1990 action.  Mr Balfour’s answer to that is that a plea of lis pendens would have been taken by the defenders, that is they would have argued said there is another action pending about the same matter. That being a preliminary plea,  if they were successful (which they plainly would have been) then the action would have been dismissed.  Therefore Mr Balfour says that the right thing to do with the second action was to have it dismissed.  That was not done.  A decree of absolvitor was pronounced and Mr Balfour relies on his plea of res judicata and seeks a decree of absolvitor in the 1990 action today.

[7]        Mr Christine explained that the 2011 action had been raised in haste as Mr Cole was at that time very ill.  A commission to take his evidence was fixed and attempted but he was too ill to complete it and in fact died within days of the diet for the commission.  Mr Christine explained that the existence of the 1990 action with its provisional damages was not known to the agents at the time and presumably had simply been not understood or forgotten by Mr Cole who of course was in ill-health and would hardly be in a position to be sure about what had happened 20 years before.  The pursuers raised the 2011 action. The defenders pointed out to the pursuers’ agents that the first action existed when the second action was raised.  The pursuers’ agents then decided to abandon and as there was in their view no need to raise a new action because there was an existing action, they thought that there was no need to seek decree of dismissal and so the minute sought to abandon and consent to decree of absolvitor. 

[8]        Mr Christine argued that the 2011 action was “void” as he put it for two reasons.  Firstly, he submitted that it had been discovered after Mr Cole’s death that he did not in fact have mesothelioma which was the basis on which that action had been raised;  although he did have asbestosis.  Secondly, the raising of the action was, as things have turned out, the wrong procedure. It should have been dealt with by way of a minute in the old action, which is the minute which is before me today.  Mr Christine frankly accepted that there was no authority he could put before me to show that the action was void.  He argued however that the point of the rule embodied in the plea of res judicata is that new actions will not be continued to be raised after the matter in contention between the parties has been dealt with by a court.  He argued that he did not seek to raise a new action; he sought to proceed by minute in an existing action.

[9]        I accept that Mr Christine is correct to say that provisional damages were allowed by the court in this case and that is what he seeks to proceed with today.  He submits that the pursuers now want to bring the matter of the provisional damages to the court for decision and he argues that he is doing so, or attempting to do so, in the 1990 action which is not a new action.  He argues that the plea of res judicata should be repelled. 

[10]      I accept the arguments for counsel for the defenders.  The second action was raised in error. I can understand the circumstances which gave rise to that error.  Once the error was drawn to attention the pursuers’ agents consented to a decree of absolvitor being pronounced in an action in which the matter in issue was reparation for personal injuries caused by negligent exposure to asbestos.  It was clear that that was the very matter raised in the 1990 action and the development of the disease caused by that negligent exposure is the matter held in abeyance by the interlocutor granting provisional damages.  The court was asked to assoilzie the defenders in the 2011 action, and it did so.  Therefore it seems to me that the plea of res judicata is made out and when the pursuers seek to bring the matter left in abeyance by the first joint minute before the court I find that they cannot do so because that matter has been dealt with by their consenting to decree of absolvitor. The five requirements set out are met.  While I have before me an explanation of what has happened, the decree of absolvitor cannot simply be ignored.  It stands unless and until it is reduced. In my saying that, I should make clear that reduction is not before me.  It is an entirely different matter and for what it may be worth, I should say it is a remedy that is not lightly granted. 

[11]      I will therefore sustain the defenders’ plea of res judicata and grant decree of absolvitor.  I will grant expenses to the defenders of the procedure for minutes and answers and the procedure roll today.