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Forum shopping in asbestos claims | Inner House of the Court of Session overturns decision

29th Aug, 2018 / Legal & Law Firm, News

In March this year Lord Tyre was asked to determine a dispute over the applicable law in an asbestos claim. The pursuers argued that it was Scots law,…

Inner House of the Court of Session overturns decision prioritising location of manifestation over place of exposure in determining jurisdiction in an asbestos case.

James Docherty’s Executors & Ors v Secretary of State for Business, Innovation and Skills [2018] CSIH 57

Executive summary

In March this year Lord Tyre was asked to determine a dispute over the applicable law in an asbestos claim. The pursuers argued that it was Scots law, as it was in Scotland that the exposure to asbestos in the employment of the defenders occurred. The defenders argued it was English law, because it was in England that the disease developed and where the deceased died. Lord Tyre favoured the defenders’ position and dismissed all but one of the pursuers’ claims. The pursuers appealed and the decision has this week been reversed.

Facts

Twenty three relatives of the late Mr James Docherty (“the deceased”) raised proceedings against Scotts Shipbuilding and Engineering Company (“the Company”). They claimed damages for the death of the deceased due to alleged exposure to asbestos dust between 1941 and 1947 in the defenders’ yard in Greenock, Scotland. The action was raised against the Secretary of State as the person responsible for the liabilities of the Company. Liability was disputed.

The deceased first experienced respiratory symptoms in around 2003. In 2009, he had a CT scan which revealed basal bronchiectasis with fibrosis and mild pleural thickening. At the date of the diagnosis and in the lead up to his death, the deceased was living in England. Proceedings were raised by the deceased’s widow as an individual and on behalf of the deceased’s estate, together with twenty three relatives of the deceased. It was acknowledged by those acting for the pursuers that the proceedings were raised in Scotland because the Damages (Scotland) Act 2011 allowed the relatives to make claims which would not have been permitted under English Law.

The case was taken to debate on the issue of the applicable law. Lord Tyre favoured the defenders’ position that location of manifestation of symptoms was the determinative factor and dismissed the relatives’ claims.

Inner House decision

The Inner House expressed concerns regarding the consequences for both prospective defenders and pursuers if the decision were allowed to stand. For defenders, it was highlighted that they may be operating exclusively in Scotland and yet find themselves facing a claim governed by the law of a country with which they had no prior connection. For pursuers, it was pointed out that a person who had worked in Scotland and sought to claim against his employer, could be deprived of a claim for damages by moving to a foreign country where the law differed…. READ FULL ARTICLE

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