Summary of Opinion ([2025] CSOH 85)

Factual and Procedural Background

This opinion was delivered by Judge Cubie in the Outer House, Court of Session on 22 April 2025. The Plaintiff (the wife and executrix nominate of the Deceased and other family members) brought an action arising from the Deceased's death from malignant epithelioid mesothelioma on 28 November 2021. The Plaintiff enrolled a motion inter alia for issues (seeking the procedural step of having specified issues determined, which in context relates to trial by jury). The Defendant challenged the competency of the matter proceeding before a jury.

The Defendant's central factual premise (as pleaded in Answer 6) was that the alleged breach of duty occurred in the late 1970s, the Deceased was diagnosed only in 2021, and any right of action that the Deceased might have had depended upon the discovery provision in section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973. The Defendant therefore relied on section 22(4) of that Act to argue that the action should not be tried by jury.

Legal Issues Presented

1. Whether the word "entertain" in section 22(4) of the Prescription and Limitation (Scotland) Act 1973 should be read so that the terms of section 17(2)(b) can be engaged in relation to proceedings brought under section 18(2)(a) (i.e., whether an action properly brought by relatives under s18(2)(a) is excluded from jury trial because, "but for" s17(2)(b), there would have been no claim).
2. Whether an action by relatives that was raised within the three-year period specified by s18(2)(a) can nonetheless be excluded from jury trial by virtue of s22(4) on the basis of the Deceased's hypothetical or potential reliance on s17(2)(b).

Arguments of the Parties

Defendant's Arguments

• The alleged breach occurred in the late 1970s and the Deceased was diagnosed only in 2021; therefore any personal-injury claim the Deceased could have brought would have depended on the discovery provision in s17(2)(b).
• The Plaintiff's action is founded on and dependent upon the Deceased's right of action and so proceeds via s18(2)(b); because the Plaintiff's action "would not be entertained but for" the provisions relied on in s17(2)(b), s22(4) operates to preclude trial by jury.
• The word "entertain" should be read in a causal or "but-for" sense so as to import into s22(4) the dependency asserted by the Defendant: if, absent s17(2)(b), there would have been no claim, the matter should not be heard by a jury.
• Although the Defendant accepted that earlier decisions (Mitchell and McLean) were adverse to this interpretation, counsel submitted those decisions were persuasive rather than binding and had involved misdirection in statutory interpretation.

Plaintiff's Arguments

• The statute is plain: this is a case brought by relatives under s18 and the action was raised timeously under s18(2)(a) (within three years of the Deceased's death); s18(2)(b) is therefore not engaged.
• The phrase "the said subsection (2)(b)" in s22(4) should be read as referring to the subsection (2)(b) applicable to the particular action (i.e., s18(2)(b) in an s18 action); it should not be stretched to import a "but-for" dependency on s17(2)(b).
• The Plaintiff relied on existing authority (Mitchell, McLean and an unreported decision of Judge Kinclaven cited in the Civil Practice Bulletin) to show that the point had already been considered and rejected in circumstances analogous to the present case.
• Accordingly, the Plaintiff submitted that the motion for issues should be granted and that s22(4) did not preclude a jury trial in the present proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded by close textual and purposive analysis of the limitation provisions and the particular language of section 22(4). The relevant analytical steps were:

1. The statutory framework was identified: s17(2)(b) contains the discovery rule applicable to personal-injury claims; s18(2)(a) and (b) set out the limitation period and the parallel discovery rule where death has resulted; and s22(4) provides that "an action which would not be entertained but for the said subsection (2)(b) shall not be tried by jury."
2. The court accepted the factual premise that the alleged breach took place in the late 1970s and that the Deceased was diagnosed with mesothelioma in 2021 such that a hypothetical claim by the Deceased might have invoked s17(2)(b). But the court emphasised that the Plaintiff's claim had in fact been raised within three years of the Deceased's death and was properly brought under s18(2)(a).
3. On statutory construction the court followed Judge Tyre's reasoning in Mitchell. The statutory language and drafting history indicated that the reference in s22(4) to "the said subsection (2)(b)" should be read as a reference to whichever subsection (2)(b) is applicable to the particular action (i.e., in an s18 action that means s18(2)(b) where engaged), rather than as a cross-cutting reference that imports any dependent or antecedent subsection (2)(b) (such as s17(2)(b) in respect of the Deceased's potential claim).
4. The court addressed the Defendant's contention that "entertained" should be given a broader "but-for" meaning. While acknowledging that "entertained" can mean "to give consideration to," the court concluded that to read s22(4) so as to import the Defendant's "but-for" causal test would stretch the language beyond its natural meaning and would conflict with the plain operation of an s18(2)(a) claim that was raised timeously. In short, because the present action was properly brought under s18(2)(a), the discovery considerations underpinning s17(2)(b) did not operate to bring the claim within the prohibition in s22(4).
5. The court noted an intellectual difficulty—namely that Parliament appears to treat some s18 claims differently from claims by injured persons under s17—but concluded that the time-bar issue was not live in the present case and that the court should apply the statute as written.
6. On this basis the court preferred the Plaintiff's submissions, adopted the reasoning in Mitchell, and held that s22(4) did not preclude the Plaintiff from obtaining the issues sought.

Holding and Implications

GRANTED

Holding: The court granted the Plaintiff's motion for issues. The Defendant's challenge to the competency of the matter proceeding before a jury was rejected.

Immediate consequences: The procedural relief sought by the Plaintiff (the grant of issues) was allowed. The Defendant was ordered to pay the expenses occasioned by the opposed motion.

Broader implications: The court explicitly adopted existing authority (notably Mitchell) and applied it to the facts of the present case. The opinion resolves the matter on the basis of statutory interpretation and prior authority; it does not purport to depart from or to create new precedent beyond that application. The decision therefore had the direct effect described above for the parties to this litigation.