Section 22(4) 1973 Act: Jury Trial Bar Applies Only Where the Pursuer Relies on Section 17(2)(b) or 18(2)(b) (Not Merely Because the Deceased Would Have Needed Section 17(2)(b))

Section 22(4) 1973 Act: Jury Trial Bar Applies Only Where the Pursuer Relies on Section 17(2)(b) or 18(2)(b) (Not Merely Because the Deceased Would Have Needed Section 17(2)(b))

1) Introduction

Barbara MacVicar or Butt and others against Robert Nimmo ([2026] CSIH 6) is a reclaiming motion in the First Division of the Inner House concerning the availability of a civil jury trial in a fatal personal injury action.

The pursuers are the widow/executrix of the late Edward Samuel Butt and other relatives. They sue the defender, Robert Nimmo, alleging the deceased was exposed to asbestos during employment (c. 1977–1979), developed mesothelioma in 2020, and died on 28 November 2021. The action includes (i) executry claims (solatium/pain and suffering, services, funeral expenses) and (ii) relatives’ claims (loss of support and non-patrimonial loss) under the statutory scheme referred to in the pleadings.

The procedural dispute is narrow but important: the defender argued that, because the deceased himself would have required the “date of knowledge” type relaxation under section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973, the statutory jury-trial exclusion in section 22(4) applied to bar jury trial in the relatives’ post-death action. The pursuers said their claim was brought timeously under section 18(2)(a) (within three years of death), so section 22(4) did not bite.

2) Summary of the Judgment

The Inner House refused the reclaiming motion and adhered to the Lord Ordinary’s interlocutor allowing issues (jury trial). The court held:

  • Section 22(4) (“An action which would not be entertained but for the said subsection (2)(b) shall not be tried by jury.”) bars jury trial only where the particular action before the court depends on the relaxation in the applicable subsection (2)(b).
  • In an action brought following death, limitation is governed exclusively by section 18; the reference in section 22(4) is sensibly read as referring to section 18(2)(b) in such a case (and to section 17(2)(b) in a living pursuer’s section 17 action).
  • Because this action was raised within three years of death under section 18(2)(a) and did not require reliance on section 18(2)(b), it was not “an action which would not be entertained but for” subsection (2)(b). There was therefore no statutory exclusion of jury trial.

The court also made an ancillary procedural order: because a jury trial proceeds on the basis that questions of relevancy have been disposed of, certain averments in answer 6 “after the general denial” were to be refused probation, applying Moore v Stephen & Sons 1954 SC 331, 334.

Finally, the court stressed the importance of factual accuracy in notes of argument, criticising an incorrect statement (later corrected and apologised for) that the deceased had raised and settled an action in his lifetime.

3) Analysis

3.1 Precedents Cited

(a) Mitchell v Advocate General for Scotland [2015] CSOH 2; 2015 SLT 92

This Outer House decision addressed the same interpretative issue: what “the said subsection (2)(b)” in section 22(4) refers to when the statutory scheme contains both section 17(2)(b) (non-fatal personal injuries) and section 18(2)(b) (fatal claims).

The Lord Ordinary in Mitchell adopted a “natural construction”: section 22(4) refers to the applicable subsection (2)(b)—section 17(2)(b) for section 17 cases and section 18(2)(b) for section 18 cases. Importantly, Mitchell rejected the idea that section 22(4) implicitly extends to bar jury trial in a section 18 action merely because the deceased, had he sued while alive, would have required section 17(2)(b).

The Inner House in the present case expressly agreed with this approach and treated it as consistent with how Parliament would be expected to legislate had it intended the broader exclusion contended for by the defender (noting the absence of language such as “subsections (2)(b)” in the plural or an explicit cross-reference).

(b) McLean v Fairfield Shipbuilding Ltd [2019] CSOH 33; 2019 SLT 476

McLean also took the view that post-death claims are governed by section 18 and that executors and relatives have claims that arise on death and are not simply co-extensive with the deceased’s pre-death limitation position. The decision highlighted that executors’ rights transmit on death and that the statute provides a distinct limitation timetable for death-related claims.

The Inner House endorsed this reasoning, using it to reinforce the core point: in a section 18 action brought within three years of death, the pursuer is not relying on any “late knowledge” relaxation, and section 22(4) does not automatically exclude jury trial.

(c) McKay v Scottish Airways 1948 SC 254

The defender relied on McKay for the proposition that the deceased’s right of action is an “indispensable foundation” for relatives’ claims, and argued that the pursuers should have “no greater rights than the deceased” in relation to jury trial where the deceased would have been time-barred absent section 17(2)(b).

The Inner House rejected that use of McKay. It explained that McKay was about the effect of a contractual renunciation (in conditions of carriage) and whether it barred relatives’ claims. While McKay contains observations about relatives’ rights being independent yet sharing a common wrong as their foundation, those observations do not decide (and do not assist with) the present statutory question: which limitation provision applies to a post-death action, and whether that action depends on subsection (2)(b) for competency.

(d) Moore v Stephen & Sons 1954 SC 331, 334

This authority was applied for a procedural consequence of allowing issues. The court reiterated that a jury trial proceeds on the footing that relevancy is resolved and the case is tried on the pleadings as relevant; accordingly, certain averments (here, in answer 6 after a general denial) should be refused probation.

Although not central to the limitation/jury-trial question, the citation matters for practitioners: choosing (or securing) jury trial can have knock-on effects for what is permitted to go to proof and what must be excluded from probation at that stage.

3.2 Legal Reasoning

(i) Text, structure, and “the said subsection (2)(b)”

The defender’s argument depended on reading “the said subsection (2)(b)” in section 22(4) as referring (in a death case) to section 17(2)(b) if the deceased would have needed it. The Inner House considered that inconsistent with the statutory architecture:

  • Section 17 governs actions “in respect of personal injuries not resulting in death.”
  • Section 18 governs actions “where death has resulted from personal injuries.”
  • Section 22(4) is an interpretative/supplementary provision operating within that scheme; it is therefore read as “tracking” the operative provision applicable to the action.

The court concluded that, in a section 18 action, the only “sensible” reading is that section 22(4) refers to section 18(2)(b), not section 17(2)(b).

(ii) Purposive interpretation and legislative history

The Inner House placed substantial weight on the policy origin of section 22(4): the Edmund Davies Committee report (1962, Cmnd 1829), which recommended safeguards when claimants invoke a relaxation of the three-year rule because juries may be less able than judges to evaluate “stale” recollections.

That recommendation was enacted and then preserved through later reforms. The court relied on the Scottish Law Commission’s 1983 report (Scot. Law Com. No.74), which proposed explicit wording that section 22(4) should apply where an action would not be entertained but for subsection (2)(b) “of the said section 17 or 18”. Although the enacted 1984 wording was shortened to “the said subsection (2)(b)”, the court saw no basis to infer an intention to alter the established policy. The policy target was actions depending on the relaxation, not actions that are timeous but connected to an injury that was long latent.

(iii) Application to the facts: timeous section 18(2)(a) claim

The pursuers sued within three years of death, satisfying section 18(2)(a). No extension or “discoverability” postponement under section 18(2)(b) was required. The condition for section 22(4) is therefore not met: this was not an action that “would not be entertained but for” subsection (2)(b).

(iv) The court’s response to “absurdity” and “no greater rights” arguments

The defender argued it was “absurd” if relatives could have a jury trial where the deceased would not have been able to (because his lifetime action would have required section 17(2)(b), triggering section 22(4)). The Inner House rejected that characterisation:

  • Parliament deliberately created a distinct limitation regime for post-death actions (section 18), including a three-year period from death.
  • The “jury bar” is not a free-standing protective mechanism for defenders whenever long-latency disease is involved; it is tied to the procedural and evidential concern that arises when the court is asked to relax the ordinary limitation rules.

3.3 Impact

  • Clarifies the scope of section 22(4): the bar on jury trial turns on whether the pursuer must rely on the relaxation provision in the action actually raised (section 17(2)(b) or section 18(2)(b)), not on a counterfactual analysis of what the deceased would have needed had he sued during life.
  • Practical consequences in fatal asbestos/industrial disease litigation: many long-latency diseases would likely have required section 17(2)(b) for a lifetime claim, but post-death claims are frequently raised within three years of death. This decision supports the availability of jury trial in such timeous fatal claims, potentially affecting forum strategy, valuation dynamics, and settlement posture.
  • Reduces interlocutory satellite litigation: by endorsing a straightforward “action-specific” reading of section 22(4) and aligning with Mitchell and McLean, the Inner House strengthens predictability in jury/proof disputes where limitation is not in issue.
  • Procedural discipline around jury trial: the reminder drawn from Moore v Stephen & Sons 1954 SC 331, 334 underlines that once issues are allowed, pleadings and probation consequences follow; parties must ensure their record is fit for a jury trial footing.

4) Complex Concepts Simplified

  • Reclaiming motion: an appeal to the Inner House against an interlocutor of a Lord Ordinary.
  • Jury trial vs proof: in certain civil actions (notably personal injury), Scots procedure may require trial by jury unless “special cause” exists or another statutory rule intervenes; a “proof” is a judge-alone evidential hearing.
  • Limitation / time-bar: a rule setting the time within which proceedings must be raised. In personal injury, the standard is generally three years, but special rules apply in death cases.
  • Section 17 vs section 18 (1973 Act): section 17 applies to non-fatal personal injury actions; section 18 applies to actions brought following death resulting from personal injuries (including by executors and relatives).
  • Section 17(2)(b) and 18(2)(b): “relaxation” provisions that can postpone/extend the practical start of the three-year period where knowledge of key facts was not reasonably practicable earlier.
  • Section 22(4): a procedural safeguard—if (and only if) the action’s competency depends on using the relaxation provision, the case “shall not be tried by jury.”
  • Refused probation: the court disallows certain pleaded averments from being the subject of evidence at proof/trial. In the context of issues, it reflects that the case proceeds on a settled relevancy footing.
  • Summar roll / procedure roll: procedural stages concerned primarily with legal issues such as relevancy and specification, rather than the leading of evidence.

5) Conclusion

[2026] CSIH 6 confirms that the jury-trial exclusion in section 22(4) of the Prescription and Limitation (Scotland) Act 1973 is triggered only where the action before the court depends on the statutory relaxation under the relevant subsection (2)(b). In a post-death action governed by section 18, raised timeously within three years of death under section 18(2)(a), the fact that the deceased’s hypothetical lifetime claim would likely have depended on section 17(2)(b) does not bar jury trial.

The decision consolidates and elevates the Outer House approach 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, while confining McKay v Scottish Airways 1948 SC 254 to its proper context. It strengthens the predictability of jury trial entitlement in fatal personal injury litigation and reaffirms that the “no jury” safeguard is aimed at cases that require an extension of the limitation period—not at long-latency disease cases as a class.

Case Details

Comments