April 6, 2017

Louisa Docherty and Others v Secretary of State for Business Innovation and Skills and ICI

This case dealt with the issue of whether, despite the original claim being raised within the triennium, was a new claim set out in a subsequent Minute of Amendment time barred.


In 2015, twenty four pursuers attempted to recover damages following the death of their relative.  They alleged he had been exposed to asbestos fibres in the course of his employment and as a consequence developed asbestosis. This exposure had occurred both when the deceased was employed by the first defender in Scotland from 1941-1947, and during the course of his employment with the second defender, in England, from 1954-1979. Despite the greater extent of exposure in England, and the pursuers all residing there, the action was raised in Scotland, primarily because of the disparity in bereavement awards.  In England, the Fatal Accidents Act 1976 provides that only a limited class of relatives can recover damages. The award itself is small, about £14,000. In Scotland, such an award is governed by the Damages (Scotland) Act 2011, which permits unlimited sums to be recovered, not only by spouses, civil partners, parents or children of the deceased, but also grandparents, aunts and uncles, nieces and nephews and step-children. Scotland also affords the possibility of the case being heard by a civil jury, who traditionally award far higher sums than judges, England does not.   Lord Boyd dismissed the second to twenty fourth pursuers’ claims against the second defender, but did not dismiss the first pursuer’s claim against them.  The first pursuer was afforded the opportunity to amend their claim.

The first and second defenders lodged Answers to the Minute of Amendment and a lengthy adjustment period followed.

Meantime, the first pursuer died, and the pursuers required to amend their pleadings further.  The Amendment deleted in its entirety the claim originally made by the first pursuer.  It replaced the original first pursuer’s claim with a new claim for solatium and a claim for the care provided to the deceased by his family during his illness in terms of section 8 of the Administration of Justice Act 1982, the funeral costs and a claim for loss of financial support for the period up to the death of the widow.  The Amendment introduced an averment stating that the claims as executors of both deceased were made under section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 and section 2 of the Fatal Accidents Act 1976.  These Acts apply in England but not in Scotland.  The issue which arose was that although the original claim was brought within the triennium, the new claim set out in the Minute of Amendment was not. 


When the case called By Order before Lord Ericht, the pursuer sought to move for amendment in terms of the Minute of Amendment and Answers, under deletion of certain averments made to the first defender’s Answers.  The second defender opposed the amendment and the first defender sought dismissal of the case against them and opposed deletion of the averments in their Answers.

The issues were (1) whether amendment to bring in the new claim after expiry of the triennium was governed by Scots or English Law; (2) if Scots law applied, whether the court should exercise its discretion in favour of amendment; (3) if English law applied, whether the court should allow amendment and (4) whether the case against the first defenders should be dismissed.


The court exercised its discretion and refused the pursuers’ motion to amend in the new claim.  Section 23A of the Prescription and Limitation Act 1973 did not apply and the matters were governed by the Scots law on amendment of pleadings.  The court should be slow to exercise its discretion in favour of permitting amendment after expiry of the triennium.  The proposed amendment would have the effect of radically altering the first pursuer’s case.  “The first pursuers have not presented the old front from a new angle, but have offered a new front: they have not only made alterations to the super structure but have changed the foundation of the action.” 

In respect of the case against the second defender, the court dismissed the action against them in relation to the first pursuer too.  The first pursuer’s case against the second defender was irrelevant for the reasons set out by Lord Boyd in 2015.  

In so far as the first defender was concerned, the court refused their motion to have the case dismissed against them, however made no decision on the merits of their arguments.  The court’s view was that the hearing to deal with the amendment procedure was not the appropriate forum for dealing with the question of whether the case should be dismissed against the first defender.  The court continued the matter to a further procedure hearing to allow consideration to be given to the pleadings and further procedure insofar as relating to the first defender only.