A rather unusual situation has arisen in the case of Stewart and Others v Trafalgar House Steamship Company Limited and Others where what is effectively an English claim is able to be litigated in the Court of Session in Edinburgh. The decision on this point was issued by Lord Uist on 5 March and can be read here.

James Stewart had been employed by the merchant navy and was exposed to asbestos negligently while working for three separate companies. Mr Stewart died in 2008 and his family raised an action against those companies. Company A is Scottish while companies B and C are English. 

It is clear that in these circumstances, where defenders are domiciled or registered in different jurisdictions within the UK, a claimant may raise a single action in one of the relevant jurisdictions on the basis the claims are "so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings" (paragraph 5(a) of schedule 4 to the Civil Jurisdiction and Judgments Act 1982).

On this basis, the Stewart family was entitled to raise an action in either Scotland or England and chose to raise their action in the Court of Session in Scotland. The difficulty with the Stewart family's case was that it transpired the Scottish company was not liable and so the action against company A was abandoned. This resulted in the rather odd situation where an action was progressing in the Court of Session against two English companies.

The remaining companies suggested that the Scottish courts did not have jurisdiction to continue to deal with the case and Lord Uist heard arguments from both sides on this point. One of the main issues seemed to be whether it is competent for the court to deal with jurisdiction issues at any stage in an action other than at the outset.

Lord Uist took the view that jurisdiction is established at the time an action is raised and that it would be "quite impracticable for the court to monitor or keep under review the question of jurisdiction throughout the course of an action" (paragraph 19). This means Scottish jurisdiction in the Stewart family's case remains, regardless of the fact the action had been abandoned against the Scottish company.

While these circumstances are relatively unusual, the decision may be of some concern to insurers, particularly given the value of fatal cases is considerably higher in Scotland than it is in England. It seems anomalous that a Scottish court can hear what is essentially an English case: the exposure to asbestos at the heart of the action was due to negligence by English companies. Of course, it may be that this decision will be appealed but in the meantime, it is worth bearing in mind that questions of jurisdiction may require to be considered at any stage in an action.