Relatives’ Actions Timeously Raised Under Section 18(2)(a) Are Not Caught by the Jury Trial Bar in Section 22(4) of the 1973 Act

Relatives’ Actions Timeously Raised Under Section 18(2)(a) Are Not Caught by the Jury Trial Bar in Section 22(4) of the 1973 Act

Introduction

This commentary examines the Scottish Court of Session (Outer House) decision in Barbara MacVicar or Butt and others v Robert Nimmo [2025] CSOH 85, Opinion of Lord Cubie (22 April 2025). The case arose from a fatal mesothelioma claim brought by the widow and family members of the late Edward Samuel Butt. The immediate procedural issue was whether the action could competently proceed to a civil jury trial—the pursuers having enrolled a motion “for issues”—in the face of the defender’s objection under section 22(4) of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”).

The defender argued that because the deceased’s personal claim would only have been “entertained” by virtue of the date-of-knowledge extension in section 17(2)(b) of the 1973 Act, the relatives’ action should be barred from a jury trial under section 22(4). The pursuers countered that their claim was brought timeously under section 18(2)(a) (within three years of death), did not depend on the postponement provision in section 18(2)(b), and therefore fell outside the statutory jury trial bar.

At the heart of the dispute was the proper construction of section 22(4): namely, what “the said subsection (2)(b)” refers to in a relatives’ action under section 18, and what Parliament meant by an action that “would not be entertained but for” that provision.

Summary of the Judgment

Lord Cubie allowed the pursuers’ motion for issues, holding that section 22(4) does not bar a jury trial for a relatives’ action that is timeously raised under section 18(2)(a) and does not itself rely on the postponement provision in section 18(2)(b). The court adopted and followed the reasoning in Mitchell v Advocate General for Scotland [2015] CSOH 2; 2015 SLT 92 and McLean v Fairfield Shipbuilding Ltd [2019] CSOH 33; 2019 SLT 476.

In short:

  • In a claim under section 18, the phrase “the said subsection (2)(b)” in section 22(4) refers to section 18(2)(b), not to section 17(2)(b).
  • Only where the relatives’ action depends on section 18(2)(b) (date-of-knowledge postponement) does the statutory exclusion of jury trial in section 22(4) apply.
  • The defender’s attempt to treat the deceased’s hypothetical reliance on section 17(2)(b) as a gateway to excluding the jury was rejected; the word “entertained” does not import a cross-referencing “but for” chain to the deceased’s personal claim.

The motion for issues was granted, and the defender was found liable in the expenses occasioned by the opposed motion.

Analysis

1) Precedents Cited and Their Influence

The court expressly aligned its reasoning with prior Outer House authorities:

  • Mitchell v Advocate General for Scotland [2015] CSOH 2; 2015 SLT 92 (Lord Tyre): Mitchell dealt directly with the construction of section 22. Lord Tyre held that “the said subsection (2)(b)” in section 22(4) must be read as a reference to whichever subsection (2)(b) applies to the action actually before the court: section 17(2)(b) for a living pursuer’s personal injuries claim under section 17; and section 18(2)(b) for a relatives’ claim under section 18. The reasoning found “support … in the use of the words ‘or, as the case may be’ in subs.(2)” of section 22 and in the language of section 22 before the 1985 amendment. Crucially, Lord Tyre observed that if Parliament had intended to exclude relatives’ jury trials even where the relatives did not rely on section 18(2)(b) (but where the deceased would have needed section 17(2)(b)), it would have said so—e.g., by referring to “the said subsections (2)(b)” in the plural.
  • McLean v Fairfield Shipbuilding Ltd [2019] CSOH 33; 2019 SLT 476: Following Mitchell, the court held that the section 22(4) prohibition on jury trial bites only when the relatives’ action itself depends upon section 18(2)(b). Where the action is timeously raised under section 18(2)(a), the bar does not apply.
  • Unreported decision of Lord Kinclaven (noted in Civil Practice Bulletin, Civ PB 2015 122, 8): The court was told of a further consistent first‑instance decision rejecting the broader reading of section 22(4) advanced by defenders.

Together, these authorities have developed a coherent first‑instance line that is now reaffirmed: the section 22(4) jury-trial bar is action-specific and subsection-specific. It turns on whether the pursuer before the court is invoking the relevant “(2)(b)” postponement in their own action, not on any hypothetical analysis of a different person’s (the deceased’s) separate cause of action under section 17.

2) The Court’s Legal Reasoning

Lord Cubie’s approach is rooted in close textual and contextual statutory construction, supported by legislative structure and a modest policy rationale.

  • Textual anchor—“the said subsection (2)(b)”. Adopting Lord Tyre’s reasoning in Mitchell, the court read “the said subsection (2)(b)” in section 22(4) as a reference to the applicable (2)(b) postponement provision in the chapter under which the claim is brought. For a relatives’ action, that can only be section 18(2)(b). If the pursuers do not invoke section 18(2)(b), section 22(4) is not engaged. The drafting choice—single, not plural—was treated as deliberate. If Parliament intended to catch relatives’ claims merely because the deceased would have needed section 17(2)(b), it would have signposted that explicitly (for example, by using “subsections” in the plural).
  • “Entertained” does not import a cross-claim “but for” chain. The defender’s key submission was that the action would not be “entertained” but for section 17(2)(b)—i.e., a counterfactual dependence: absent section 17(2)(b), the deceased’s claim would have been time-barred; absent the deceased’s viable claim, the relatives would have no claim. The court accepted that “entertained” can mean “given consideration”, but rejected the defender’s chain of dependency. In relatives’ claims, Parliament provided their own postponement mechanism—section 18(2)(b)—which “engages the same considerations as section 17(2)(b) and is a potential barrier to proceeding to a jury for an action brought under section 18. In circumstances when this action has been properly brought under section 18(2)(a) these considerations fly off.” The statutory trigger for the jury bar is whether the present action is maintainable only because of its section 18(2)(b).
  • Legislative structure and context. Lord Cubie agreed with Lord Tyre that the drafter knew of section 18(2)(a) when section 22 was framed and amended. Had Parliament wanted to exclude jury trials in all fatal cases where the deceased’s hypothetical personal claim would have needed section 17(2)(b), it could—and would—have said so. Instead, section 22(4) targets cases where the pursuer’s action depends on a date-of-knowledge extension, i.e., where a live and contested time-bar question would have to be left to a jury.
  • Policy fit—why this distinction makes sense. While acknowledging some “puzzlement” at the apparent difference of treatment (the deceased’s own action might have been excluded from a jury while the relatives’ claim is not), the court saw intelligible policy: the section 22(4) bar keeps juries away from the complex and often highly fact-sensitive limitation disputes that arise when a pursuer invokes a postponement under subsection (2)(b). Where a relatives’ action is brought squarely within section 18(2)(a)—within three years of death—there is no live limitation controversy to withdraw from the jury.

3) Impact and Practical Implications

This decision consolidates a settled Outer House approach and carries significant practical consequences for fatal claims, particularly in long-latency disease cases (e.g., asbestos-related mesothelioma):

  • Clear route to jury trials for relatives’ claims under section 18(2)(a). Where the action is raised within three years of death and does not require section 18(2)(b), defenders cannot rely on the deceased’s hypothetical need for section 17(2)(b) to defeat a motion for issues.
  • Pleading strategy for pursuers. Practitioners should scrupulously plead the action as timeous under section 18(2)(a) where possible and avoid invoking section 18(2)(b) unless necessary. Doing so preserves the availability of a civil jury trial on liability and quantum.
  • Defence strategy recalibration. The “entertained but for section 17(2)(b)” objection is now even less likely to succeed at first instance. Defenders aiming to avoid juries will need to identify other statutory or case-management grounds or show the relatives’ action itself relies on section 18(2)(b).
  • Settlement dynamics. With jury trial remaining available in many fatal claims, parties may adjust negotiation strategies. While the decision does not address valuations, the availability of a jury forum can affect parties’ risk assessments.
  • Prospect of appellate clarification. Although the Outer House decisions are persuasive rather than binding inter se, the line of authority is now consistent. Any departure is unlikely absent Inner House or legislative intervention. If defenders seek a different construction, a test case may be required at appellate level.

Complex Concepts Simplified

  • Section 17 vs Section 18 (1973 Act):
    • Section 17 governs time limits for personal injury actions brought by the injured person. The ordinary rule is three years from the date of injury (section 17(2)(a)), with a postponement where the pursuer only later became aware of key facts (section 17(2)(b)).
    • Section 18 governs fatal claims by relatives. The ordinary rule is three years from the date of death (section 18(2)(a)), with a similar postponement where the relatives only later became aware of key facts (section 18(2)(b)).
  • Section 22(4) “jury trial bar”: This provision says that an action which would not be “entertained but for” “the said subsection (2)(b)” shall not be tried by jury. The critical question is: which “(2)(b)” is being referred to? The court holds it is the “(2)(b)” applicable to the action actually before the court: section 17(2)(b) for a section 17 claim; section 18(2)(b) for a section 18 claim.
  • “Entertained but for”: In this context, “entertained” was argued to mean “the court would not even consider the action” absent the relevant postponement. The court rejected using this phrase to link a relatives’ action back to the deceased’s hypothetical personal claim. The question is whether the relatives’ action itself needs section 18(2)(b). If it does not (because it is in time under section 18(2)(a)), section 22(4) does not prevent a jury trial.
  • “Allowing issues”: In the Court of Session, “issues” are the formal questions sent to a civil jury for determination. A motion “for issues” seeks an order that the case be tried by a jury rather than by a judge sitting alone.
  • Section 19A discretion: Separate from sections 17 and 18, section 19A empowers the court to allow an action to proceed even if time-barred, where equitable. It was not invoked here, but it frequently features in the wider limitation landscape. Section 22 contains other subsections addressing how 19A interacts with jury trial; the present decision turns specifically on subsection (4).

Key Passages Highlighted

Lord Cubie endorsed Lord Tyre’s central construction in Mitchell:

“It seems to me that the most natural construction of s.22 is that the words ‘the said subsection (2)(b)’, which appear in both subs.(3) and (4), refer to s.17(2)(b) in a case brought by an injured person under s.17 and to s.18(2)(b) in a case brought by the relatives of a deceased person under s.18… If the intention of Parliament had been to exclude from jury trial a claim under s.18 which did not depend upon the application of s.18(2)(b), but where a claim by the deceased would have required to rely upon s.17(2)(b), one would have expected subs.(4) to make this clear, for example by referring to ‘the said subsections (2)(b)’ in the plural.”

On the defender’s “entertained” argument:

“I recognise that use of the word ‘entertained’ in section 22(4) is capable of meaning to ‘give consideration’ to. The defender’s argument is that this action under section 18(2)(a) would not have been considered unless section 17(2)(b) was engaged. But section 18(2)(b) engages the same considerations as section 17(2)(b) and is a potential barrier to proceeding to a jury for an action brought under section 18. In circumstances when this action has been properly brought under section 18(2)(a) these considerations fly off.”

Why the Court’s Approach Is Persuasive

  • Statutory coherence: The reading ties the operative jury-trial bar to the actual subsection that bears on the limitations posture of the claim before the court. It avoids importing a chain of hypotheticals about other potential claims by other persons at other times.
  • Drafting choices matter: Parliament used the singular “the said subsection (2)(b)” and elsewhere signposted “or, as the case may be,” indicating an either/or cross-reference. If a broader sweep had been intended, the language would have been broader.
  • Policy alignment: Limitation disputes can be evidentially intricate. Section 22(4) plausibly aims to keep those threshold disputes away from juries. Where the case is plainly in time under section 18(2)(a), the policy for removal from a jury is not engaged.

Conclusion

Barbara MacVicar or Butt and others v Robert Nimmo [2025] CSOH 85 confirms and strengthens a clear first‑instance line: in relatives’ fatal claims, the section 22(4) prohibition on civil jury trial applies only if the relatives are invoking the date‑of‑knowledge postponement in section 18(2)(b). It does not extend to cases raised timeously under section 18(2)(a), even where the deceased’s personal action, had it been litigated, would have required reliance on section 17(2)(b).

By adopting Mitchell and McLean, Lord Cubie gives further certainty to practitioners that the availability of a jury in fatal claims turns on the limitation posture of the relatives’ action itself. The court’s interpretation of “the said subsection (2)(b)” and its rejection of a cross-claim “but for” reading of “entertained” provide a principled, textually moored rule with a coherent policy foundation. The decision is likely to influence case management, pleading strategy, and settlement dynamics in fatal claims, particularly in asbestos-related litigation. If a different balance is desired, the remedy lies in legislative amendment; until then, the Outer House’s consistent approach should be treated as the practical guide for future cases.

Case Details

Comments