Summary of Court Opinion (Anonymized)

Factual and Procedural Background

The present reclaiming motion concerned a challenge by the Defender to a Lord Ordinary's decision to allow a jury trial in an action for damages arising from alleged asbestos exposure. The pursuers are relatives and the executrix of the deceased, who worked as a joiner for Company A in the late 1970s and was exposed to asbestos-containing materials at premises in The City. The deceased developed pleural plaques and pleural mesothelioma in about December 2020 and died on 28 November 2021. The pursuers seek damages for negligence and breach of statutory duty, including damages for the deceased's pain and suffering (as executrix), funeral expenses, loss of support, non-patrimonial loss and loss of personal services and companionship under the Administration of Justice Act 1982 and the Damages (Scotland) Act 2011. The Lord Ordinary allowed issues (a jury trial). The Defender reclaimed, arguing that section 22(4) of the Prescription and Limitation (Scotland) Act 1973 precludes jury trial in these proceedings.

Legal Issues Presented

1. Whether section 22(4) of the Prescription and Limitation (Scotland) Act 1973 operates to preclude trial by jury in an action brought after the death of an injured person by his relatives.
2. If so, whether the phrase "but for the said subsection (2)(b)" in section 22(4) should be read as referring to section 17(2)(b) (injured persons) or to section 18(2)(b) (deaths) in the context of a claim brought following death.
3. Whether the pursuers' action is one which "would not be entertained but for" a subsection (2)(b) relaxation of the ordinary three-year limitation period.

Arguments of the Parties

Defender's Arguments

• The deceased's right of action would have relied on the relaxation in section 17(2)(b) (for actions by injured persons); that right was the foundation for the pursuers' actions.
• Accordingly, the reference in section 22(4) to "the said subsection (2)(b)" must be read as referring to section 17(2)(b), so that claims by relatives after death are excluded from jury trial where the deceased's claim would have depended on a subsection (2)(b) relaxation.
• The effect of section 22(4) was to treat reliance on a limitation relaxation as a "special cause" to require proof (judge) rather than jury trial; the Lord Ordinary misdirected himself by allowing a jury.

Pursuers' Arguments

• The pursuers brought their action within three years of the deceased's death under section 18(2)(a) and do not rely on the relaxation in section 18(2)(b).
• Accordingly, no issue under subsection (2)(b) of section 18 arises and section 22(4) does not preclude a jury trial in this case.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory framework of the Prescription and Limitation (Scotland) Act 1973, particularly sections 17, 18 and 22. It traced the policy behind section 22(4) to Committee recommendations advocating that where a claimant relies on a relaxation of the ordinary three-year limitation period (subsection (2)(b)), issues of time-bar should be determined by a judge rather than a jury.

The Scottish Law Commission's draft and Parliament's eventual wording were considered: the Commission's draft expressly linked subsection (2)(b) of sections 17 or 18 to the exclusion from jury trial, but Parliament enacted the shorter phrasing "but for the said subsection(2)(b)". The court concluded that the sensible construction is that the phrase refers to the subsection (2)(b) applicable to the action in question: in actions by injured persons it refers to section 17(2)(b); in actions following death it refers to section 18(2)(b).

Applying that construction, the court found no issue under section 18(2)(b) in the present case because the pursuers had sued within three years of death under section 18(2)(a). Consequently, section 22(4) does not operate to exclude jury trial here. The court adopted the reasoning in Mitchell and McLean, rejected the Defender's narrower reading that would import section 17(2)(b) into a death claim, and held that McKay did not assist the Defender's case.

Finally, the court applied Moore in relation to the procedural consequence that, for a jury trial to proceed on the pleadings as conclusive of relevancy, certain averments in answer 6 must be refused probation; the court so ordered. The court also noted and criticised an incorrect factual statement in the pursuers' note of argument concerning an earlier action purportedly raised and settled by the deceased.

Holding and Implications

HOLDING: The reclaiming motion is refused and the Lord Ordinary's interlocutor of 22 April 2025 allowing issues (a jury trial) is adhered to. The court ordered that the averments in answer 6 after the general denial be refused probation.

Implications: The direct effect is that the pursuers' entitlement to trial by jury in this matter is upheld because they proceeded within the three-year period under section 18(2)(a) and did not rely on section 18(2)(b). The opinion applies existing principles and prior Outer House decisions (Mitchell and McLean) to interpret section 22(4); it does not purport to establish a novel general principle beyond that interpretation.

Court composition (anonymized): Judges Wise, Ericht and Judge Pentland (delivering the opinion). Counsel (anonymized): Attorney Mackay and Attorney Singer for the Pursuers; Attorney Mackenzie for the Defender. Firms (anonymized): Company B acted for the Pursuers; Company C acted for the Defender.