The Court of Session Opinion of Lord Clark in Mary Forbes & Ors v. Enos Mclean Jnr  CSOH 88 was handed down this morning. Lord Clark refused the Defender's argument that the case should be dismissed on the basis that it was incompetent to sue the Defender in his capacity as executor of his late father's Estate. The Estate had been wound up more than 20 years prior to the Pursuer's death and the subsequent raising of this action.
This action, for mesothelioma, was raised in May 2016. The late Frederick Forbes was a painter and decorator, allegedly employed by the Dundee firm of Mclean & Stewart from 1957 to 1963. One of the partners in that business was Mr Enos McLean Snr, also long deceased by the time the action was raised. The issue of whether Mr Forbes was ever exposed negligently to asbestos with McLean & Stewart remains in dispute.
Originally, the action proceeded personally against Mr McLean Jnr on the basis that he was a partner in the firm of Mclean & Stewart. Clyde & Co raised objection to that by reason of the fact that that Mr McLean Jnr had only been made partner in his late father's firm in 1977, many years after Mr Forbes' employment with the partnership. The pursuers amended their case, and it thereafter proceeded on the basis set out above.
Clyde & Co took the case to a legal debate. We argued that once an estate is wound up, an action such as this, raised many years later, could not be competent against the executor. Otherwise, estates could never be wound up and would have to live on in perpetuity.
The issue to be decided was succinctly stated by Lord Clark as:
"Where an employee claims to have suffered personal injury at the time of his employment and the employer was either a partner in a partnership or was a sole trader, who has died, can the former employee (or his family members if he is also now deceased) sue the executor of the former partner or sole trader, perhaps long after the executor has ingathered and distributed the estate, as a means of seeking to cause the insurers under the employers’ liability insurance policy to meet the claim?"
Lord Clark refused the defender's argument that the case should be dismissed on the basis that it was incompetent to sue Mr McLean Jnr in his capacity as executor of his late father's Estate which, on the face of it, was wound up more than 20 years prior to Mr Forbes' death and the subsequent raising of this action.
What can we learn?
- As far as pursuers are concerned, there appears to be an undesirable lacuna in the law in this area. Procedures have been put in place to resurrect incorporated entities purely to allow litigation to proceed against them, and enforceable decrees (against insurers) to be pronounced. However, there is no such procedure in relation to partnerships or sole traders.
- Whilst of no legal significance to the issue to be decided, pursuers' counsel in the present action argued that insurance was in place for Mclean & Stewart. What was sought here was effectively restoration of the executry, in order to constitute a claim against the estate that the insurers would have to meet. If it was not competent to establish the claim against the estate, no enforceable decree against the insurers could be obtained.
- Lord Clark has decided that it is competent to sue the executor in these circumstances. However, this is by no means the end of the story. If the pursuers succeed at trial, then they will still have to establish that the claim on the partnership's EL insurance policy is an asset of the estate.
- The defender will therefor fight on, and this action (along with several similar actions in which Clyde & Co are acting) will proceed, but whether these pursuers will ever obtain enforceable decrees, and therefore compensation, remains to be decided.