Summary

Scottish court refuses amendment of industrial disease claim to change statutory basis for action after the expiry of limitation period. The suggestion is that the same decision may not have been reached in the English courts.

Background

In this case, the alleged wrong occurred in England, but English law denied a remedy to all but one of the pursuers, the deceased’s widow, under the Fatal Accidents Act 1976 (“the 1976 Act”). The twenty-four pursuers (claimants) decided to raise a claim in the Scottish courts under the Damages (Scotland) Act 2011 (“the 2011 Act”). The Scottish court decided that the second to twenty-fourth pursuers’ claims should be dismissed. Read more about that decision in our Law Now of 10 November 2015;

http://www.cms-lawnow.com/ealerts/2015/11/can-you-sue-in-scotland-to-obtain-a-remedy-not-available-in-england?cc_lang=en

The action was served on the defenders on the eve of the triennium (the deadline for bringing the case). After the Scottish court held that the claim should have been brought under the 1976 Act, the first pursuer sought to amend her claim. This was opposed by the second defenders on the basis that the claim had time barred; while it was accepted that the original claim was brought within the triennium, it was argued that the new claim was out with the deadline and should not be allowed. The court had to consider whether the amendment was governed by Scots or English law, and if it should be allowed under the applicable law.

Whether the amendment should be allowed

The court decided that it was not applying the English law of limitation, it was exercising its general discretion to control amendment of pleadings. Accordingly, Scots law governed the matter.

As the court determined that the amendment should be considered under Scots law, the court required to be persuaded to exercise its discretion in favour of allowing amendment. The court reaffirmed that it should be slow to exercise its discretion in favour of permitting amendment after expiry of the triennium. The proposed amendment would radically alter the first pursuer’s case. The pursuer’s agent had made a conscious decision to raise the proceedings in the Scottish courts under the 2011 Act which offered additional remedies that the 1976 Act did not. The court also considered that the defenders would suffer prejudice if the amendment was allowed. Accordingly, the court exercised its discretion against allowing amendment.

Had the decision been governed by English law rather than Scots law, the court would have fixed a preliminary Proof Before Answer to determine how the English courts would have exercised its discretion.

Comment

This case is a salutary reminder that the forum may determine procedural points rather than the governing law applying to a claim.

The pursuer lodged an opinion from a QC in England, which suggested that the English courts would have exercised its discretion in favour of allowing the amendment. The court’s decision in this action is indicative that Scottish courts may be slower to exercise their discretion in favour of allowing amendment of a claim out with the relevant time limits than their counterparts in England.

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