Reclaiming Motion in the cause Laura McCluskey against Scott Wilson Scotland Ltd (Court of Session)

Factual and Procedural Background

This appeal concerns a plea of res judicata in personal injury actions arising from alleged negligence related to contaminated land at a residential development site known as the Watling Street Development. The Plaintiff is among a cohort of residents who raised claims against the Defendant, a company contracted for environmental investigation and remediation work on the site. A lead action, brought by other residents (referred to here as Lead Plaintiffs), had already been decided in both the Outer and Inner House courts, with findings that the Defendant owed a duty of care but had not breached it.

Practice Direction No 1 of 2013 was issued to manage the group of related actions efficiently, nominating a judge to oversee generic issues common to all claims. The Plaintiff’s action was initially sisted pending resolution of the lead action. The lead action focused on whether the Defendant was negligent in investigating and remediating the site contamination, specifically excluding causation issues.

The lead action concluded with findings that the Defendant had fulfilled its duty of care, based on expert evidence regarding the adequacy of investigations and remediation practices at the time. The Plaintiff subsequently revived her claim, asserting broadly similar allegations but including additional averments concerning contamination by volatile organic compounds (VOCs) and semi-volatile organic compounds (SVOCs), and alleged deficiencies in soil capping and air sampling.

The Defendant pleaded res judicata, arguing that the Plaintiff’s claim raised issues already determined in the lead action and that proceeding would be an abuse of process and irrelevant. The Lord Ordinary refused to sustain the plea, allowing the Plaintiff’s action to proceed to a restricted proof. The Defendant sought to reclaim this decision.

Legal Issues Presented

1. Whether the plea of res judicata applies, barring the Plaintiff’s claim on the basis that the issues raised were already determined in the lead action.
2. Whether the Plaintiff’s claim constitutes an abuse of process by seeking to relitigate issues decided in the lead action.
3. Whether the Plaintiff’s claim is irrelevant in light of the findings in the lead action.

Arguments of the Parties

Defendant's Arguments

• The plea of res judicata is supported by public policy, equity, and common sense to prevent repeated litigation of the same issues.
• The interests of the Plaintiff and the Lead Plaintiffs are sufficiently similar to be considered the "same parties" for res judicata purposes.
• The issues litigated and decided in the lead action—the nature and scope of the Defendant’s duties and whether those duties were breached—are the same as those raised by the Plaintiff.
• The Plaintiff’s additional averments do not amount to new grounds of action but are merely amplifications of the same issue of breach of duty.
• Allowing the Plaintiff’s claim to proceed would undermine the efficient management of the cohort of claims and infringe the Defendant’s right to have civil obligations determined within a reasonable time.
• The plea of res judicata should have been sustained, resulting in dismissal (decree of absolvitor) of the Plaintiff’s claim.
• The Plaintiff’s action is also irrelevant and amounts to an abuse of process as it seeks to relitigate the same issues already conclusively decided.

Plaintiff's Arguments

• The Plaintiff is a different individual from the Lead Plaintiffs and occupies different premises, thus having a separate legal interest.
• There was no contractual or procedural agreement that the lead action’s outcome would be binding on the Plaintiff.
• Although some facts and expert evidence overlap, the Plaintiff’s case includes additional averments and is not pleaded on the same basis as the lead action.
• Dismissing the Plaintiff’s claim on the basis of res judicata would significantly interfere with her fundamental right of access to justice.
• The Lord Ordinary was entitled to allow a restricted proof to determine whether the new averments could support breaches of duty not previously adjudicated.
• Dismissal on grounds of abuse of process is a draconian power and should only be exercised as a last resort; the Plaintiff’s renewed action does not per se constitute abuse of process.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McManus v Defendant [2020] CSOH 47; 2021 SLT 985	Lead action establishing duty of care and breach of duty issues in group litigation	Determined that Defendant owed duty but did not breach it; formed basis for res judicata plea in current case
Grahame v Secretary of State for Scotland 1951 JC 368	Principles of res judicata: prevents repeated litigation of same issue between same parties	Guided the court’s assessment of whether the Plaintiff’s claim raised substantially the same issues as the lead action
RG v Glasgow City Council 2020 SC 1	Interpretation of "same parties" for res judicata includes parties with sufficiently similar interests	Supported the court’s conclusion that the Plaintiff and lead action parties had sufficiently similar interests
Primary Health Care Centres (Broadford) v Ravangave 2009 SLT 673	Focus on "what was litigated and what was decided" for res judicata, rather than precise remedies sought	Used to analyze whether new averments constituted new grounds or merely amplifications of decided issues
Friel v Brown 2020 SC 273	Abuse of process as a draconian power of last resort	Informed the court’s view on the limited circumstances in which abuse of process dismissal is appropriate
Clarke v Fennoscandia (No.3) 2005 SLT 511	Definition and scope of abuse of process	Referenced in considering whether the Plaintiff’s renewed action constituted abuse of process
Depuy International v Gilchrist 2024 SCLR 141	Efficient management of cohort/group litigation and fairness to parties	Supported Defendant’s argument on the need to respect lead action findings to avoid multiplicity of proceedings
McPhee v Heatherwick 1977 SLT (Sh Ct) 46	Effect of sustaining a plea of res judicata as a peremptory plea	Justified granting decree of absolvitor upon sustaining plea of res judicata
Ashmore v British Coal Corp [1990] 2 QB 338	Use of abuse of process in group litigation to prevent circumvention of lead case outcomes	Referenced in discussing abuse of process in context of marshalled litigation
Tonner v Reiach and Hall 2008 SC 1	Abuse of process as a power of last resort and its proper use	Supported caution in dismissing cases summarily on abuse of process grounds

Court's Reasoning and Analysis

The court began by considering the principle of res judicata as articulated in Grahame, which prevents the same issue being litigated repeatedly between the same parties or parties with sufficiently similar interests. The court found that although the Plaintiff was a different individual from the Lead Plaintiffs, their interests were sufficiently similar, especially given the Practice Direction establishing the lead action as representative of the cohort.

The court then examined whether the issues litigated and decided in the lead action were the same as those raised by the Plaintiff. It emphasized that the focus should be on the "essence of the matter"—the grounds of action—and not merely on the precise details or additional averments. The lead action had conclusively determined that the Defendant owed a duty of care and had not breached it in relation to environmental investigations and remediation.

The Plaintiff’s attempt to introduce additional averments about specific contaminants and remediation measures was held to be an amplification rather than a new cause of action. The court concluded that the Plaintiff was effectively seeking to relitigate the same core issue of professional negligence already decided in the lead action.

The court criticized the Lord Ordinary’s decision to allow a By Order hearing to address whether new averments had been previously dealt with, stating that this issue should have been resolved at the Procedure Roll by comparing the closed records, to avoid unnecessary procedure and expense.

Regarding abuse of process, the court noted that while it is a recognized power to dismiss claims summarily, it is draconian and a last resort. The Defendant’s abuse of process argument was largely dependent on the success of the res judicata plea, which was ultimately sustained. The court held that a successful res judicata plea does not automatically amount to abuse of process.

As the plea of res judicata was sustained, the court found it unnecessary to address the issue of relevancy in detail.

Holding and Implications

The court ALLOWED the reclaiming motion, RECALLED the interlocutor of 23 January 2024, SUSTAINED the Defendant’s plea of res judicata, and GRANTED decree of absolvitor, effectively dismissing the Plaintiff’s action.

The direct effect of this decision is that the Plaintiff’s claim is barred due to prior adjudication of the same issues in the lead action, reinforcing the procedural mechanism for managing group litigation through a lead case. No new precedent beyond the application of established principles of res judicata and abuse of process was set. The ruling promotes judicial efficiency by preventing multiplicity of proceedings on substantially identical grounds between parties with sufficiently similar interests.