LAURA McCLUSKEY AGAINST SCOTT WILSON SCOTLAND LIMITED

Factual and Procedural Background

This case is part of a group of personal injury actions initiated in 2013 by individuals claiming harm from inhaling substances allegedly present in land where a housing development was constructed in The City, known as "the Watling Street development". The Plaintiff was a tenant in one of the properties in this development. The Defendant is a limited company providing civil engineering services, including its predecessor entity responsible for the work during 1990-2001.

The lead case in the group, referred to as the lead action, proceeded to a preliminary proof in 2020. The court found that the Defendant owed a duty of care but had not breached it. An appeal was refused by the Inner House and permission to appeal to the Supreme Court was denied. The present case was called for debate, with the Defendant arguing that the Plaintiff’s claim is materially the same as in the lead case and should be dismissed on grounds of res judicata, irrelevance, or abuse of process. The Plaintiff contends there are additional averments, including a further alleged breach of duty, not raised in the lead case.

The group cases were managed under a Practice Direction from 2013, which treated each action as ordinary and did not specify that the lead action’s outcome would be binding on others. The new Group Proceedings regime introduced in 2018 does not apply retrospectively to these cases.

Legal Issues Presented

1. Whether the doctrine of res judicata applies to bar the Plaintiff's claim on the basis that the issues have already been decided in the lead case.
2. Whether the Plaintiff’s averments are irrelevant in light of the findings in the lead case.
3. Whether the Plaintiff’s action constitutes an abuse of process by seeking to re-litigate issues already determined.

Arguments of the Parties

Defendant's Arguments

• The doctrine of res judicata applies because the interest of the parties and the issues litigated in the lead case and the present case are the same, particularly regarding duty and breach.
• The Plaintiff’s claim is irrelevant since it has been conclusively determined that the Defendant fulfilled its duty of care; thus, the claim must fail.
• The Plaintiff’s action is an abuse of process as it seeks to re-litigate the same issues and evidence, wasting court resources and contradicting public policy against duplicative litigation.
• Reference was made to case law confirming the court’s inherent power to dismiss claims that are obviously without merit and to prevent re-litigation of matters already decided.

Plaintiff's Arguments

• The doctrine of res judicata does not apply fully because the Plaintiff is a different individual with distinct legal rights and claims relating to a different property.
• The Plaintiff will adduce new evidence on causation and breach of duty that was not presented in the lead case, including allegations of a further breach regarding failure to investigate volatile organic compounds and inadequate topsoil capping.
• Dismissal on the basis of irrelevance or abuse of process would unjustly interfere with the Plaintiff’s fundamental right of access to justice.
• The pleadings in the present case differ in structure and content, reflecting additional factual and fault averments advised by a new expert witness.
• The Plaintiff was hampered in the lead case by the withdrawal of an expert witness, limiting evidence on causation and breach, which this case seeks to address.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the applicability of res judicata, relevance, and abuse of process to the Plaintiff’s claim in light of the lead case’s findings. It recognized that the lead case addressed generic issues of duty and breach, which are common to all actions in the group. The Defendant’s interests and the Plaintiff’s interests in these issues were sufficiently similar to invoke res judicata principles.

However, the Plaintiff is a distinct individual with a separate legal interest and alleges additional breaches and facts not previously litigated, including failures related to volatile organic compounds and soil capping. The court accepted that these new averments might affect the outcome and thus precluded full application of res judicata.

Regarding relevance, the court held that the Plaintiff’s case is irrelevant to the extent it repeats the same averments found lacking in the lead case, but the new averments prevent complete dismissal on this ground.

On abuse of process, the court acknowledged its power to dismiss duplicative claims but emphasized this is a last resort. Given the additional averments, the court found it could not summarily dismiss the action as abusive.

The court concluded that while the generic issues found in the lead case cannot be re-litigated, the Plaintiff’s additional averments justify a restricted proof before answer. The court will hold a by-order hearing to define the scope of the remaining issues and evidence admissible at proof.

Holding and Implications

The court’s final decision is to ALLOW THE ACTION TO PROCEED IN A RESTRICTED FORM. The generic issues of duty and breach decided in the lead case are binding and cannot be re-litigated. However, the Plaintiff may pursue additional averments and alleged breaches not previously addressed.

This decision prevents the wasteful duplication of the full proof process for issues already determined, while preserving the Plaintiff’s right to pursue new factual and legal claims. No new precedent altering the principles of res judicata, relevance, or abuse of process was established. The court reserved questions of expenses and scheduled a by-order hearing to clarify the precise scope of further proceedings.