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Published 28 April 2022
Mr Mathewson (M) had been diagnosed with asbestos-related lung cancer. Decree was granted in March 2014 at which time M was awarded £30,000 in provisional damages. This was on the basis that there was thought to be a risk that an upper right lobectomy (in which one of the right lung’s three lobes or sections is removed) which M had undergone could cause or materially contribute to his death. The provisional award was however made on the basis the procedure would not have a negative impact. Nevertheless, the Lord Ordinary reserved leave to apply for a further award.
M subsequently died on 9th February 2019. On 7th February 2022, a motion concerning three minutes was intimated to the defender’s agents. These minutes were:
The defender lodged its opposition to the pursuer’s motion on 24th February on the basis that the claims being made were time-barred in terms of Section 18 of the Prescription and Limitation (Scotland) Act 1973.
The defender’s contended that the minuters had no standing to amend the claim, and that they could only move the minute of amendment and the minute further damages after the minute of sist had been granted by the Court bringing them in to the action as additional pursuers. Intimation was not enough of itself to interrupt the triennium.
The defender referred to several authorities, including the recent decision in Gillies’ Executrix v Arjo Wiggins Ltd 2020 SLT (Sh Ct) 53 which, according to the minuters, had turned on similar facts to those in the index case. The defender in Gillies relied heavily on what had been said in Boyle v Glasgow Corporation  S.C. 238 in the Inner House by the Lord Justice Clerk:
“…the lodging of the minute brings it into the judicial process”.
In other words, said the defender, the minute is not and cannot be part of the judicial process until it has been lodged. Intimation was not enough.
The court in Gillies in fact rejected the defender’s interpretation of the court’s analysis in Boyle. The emphasis was on fair notice, as the Lord Justice Clerk had said in Boyle:
“When fair notice within the judicial process and within the prescriptive period has been given…the purposes and provisions of section 6(1) have been effected”.
The defender said that Gillies should not be followed in the index case because:
In essence, according to the defender, the minuters could only bring minutes of amendment and for further damages after being themselves sisted into the action.
The minuters argued that there was fair notice given and that Gillies was correctly decided. The claim in the index case notice was given within the triennium, whereas in the older cases the claims were made out with it. In any event, the minuters came into the action when the motion was intimated. Once that had been done, the defender had fair notice of the new pursuers, how many of them there were and of what their claims consisted.
Lord Clark, in giving the Opinion, said that the fundamental issue was:
“…whether intimation of a minute of sist within the triennium, along with a minute of amendment and minute for further damages, and a motion to grant them, suffices to constitute an action being commenced, or whether the action can be commenced only once the motion for the minute of sist is granted.”
There was no material difference, in Lord Clark’s view, between fair notice of a motion and minute of amendment to bring a new head of claim by an existing pursuer (Boyle) or to bring in new pursuers with new claims (Gillies).
Lord Clark also addressed the question of whether the reasoning in Boyle could be applied when there is no existing pursuer. There was an extant action but no pursuer left as M had since died. In these circumstances the minuters were entitled to intimate their motion and minute of sist to be included as pursuers in the action. Lord Clark did not agree with the defender’s position that the action could only be commenced if the motion to be sisted in to the action was granted within the triennium. Where the original pursuer has died, intimation of the minutes, including the minute to sist, and the motion to grant them constituted fair notice and caused the new action to be commenced.
If the granting of the motion in relation to the minute of sist was the trigger for the action to be commenced, that would have meant it commencing outside the triennium.
For these reasons, the court held the action was commenced by fair notice by the minuters, within the triennium of coming into the action and of their minute of amendment and for further damages. The minuters’ motion was therefore granted by the Court and the case was allowed to proceed.
The decision in this case in essence follows the earlier decisions on what constitutes fair notice and further confirms that the courts will not take a strictly mechanistic view of parties’ actions. The minuters in this case intimated the minute of sist within the triennium and that was enough.
 S6(1) of the Law Reform (Limitation of Actions etc.) Act 1954 in which the time limit for bringing a personal injury claim was changed to three years. Section 6 is concerned with the application of the Bill to Scotland.
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