Inner House dismisses attempt to revive litigation against company involved in contaminated housing project

About this case:

• Citation:
  [2024] CSIH 26
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Carloway

Pursuer Laura McCluskey was one of a cohort who raised actions against Scott Wilson Scotland Ltd for personal injuries arising from the same negligence. It was argued by the defenders that as a previous lead action had already been decided in 2020 and 2021, the issues raised by the pursuer had already been judicially determined.

The appeal was heard by the Lord President, Lord Carloway, together with Lord Malcolm and Lord Pentland. Barne KC and Reid KC appeared for the defenders and reclaimers, and R Sutherland, advocate, appeared for the pursuer and respondent.

Bolster a failed claim

The pursuer was one of a large number of litigants whose homes at the Watling Street development in Motherwell had been built on contaminated land. A Practice Direction was issued by the court in 2013 that applied to actions raised by residents and former residents of properties in the development, and the lead action, McManus v Scott Wilson Scotland, was decided by the Outer House in 2020 in favour of the defenders, with a reclaiming motion refused by the Inner House in 2021.

Along with other actions, the pursuer’s case was sisted pending the resolution of McManus, which alleged that the defenders were responsible for investigating the extent of contamination on the site and raised specific criticisms of the defenders’ investigation into the site. The defenders led expert evidence from a land condition specialist who testified that they had acted in accordance with common practice at the time, whose evidence was preferred by the Lord Ordinary to the expert led by the McManuses.

Following an unsuccessful attempt to appeal to the UK Supreme Court in McManus, the pursuer revived her action, which featured averments broadly similar to those in the lead case with additional averments based on air sampling carried out in 2011. The Lord Ordinary considered that, given the further averments and an additional alleged breach of duty, the case was not entirely ruled by McManus and allowed a restricted proof before answer.

Counsel for the defenders submitted that the Lord Ordinary erred in refusing to sustain a plea of res judicata. Both McManus and the pursuer’s case were based on failures in the investigation and remediation scheme as designed by the defenders. A plea of res judicata could not be defeated by introducing averments which simply bolstered a failed claim. This was particularly so when a cohort of similar actions were being managed as a group.

For the pursuer it was submitted that her case did not involve a rehearsal of the same facts and expert evidence as in McManus. Dismissal of the pursuer’s action on the basis of res judicata would amount to a significant interference with a fundamental right of access to justice.

Essence of what is litigated

Delivering the opinion of the court, Lord Carloway began: “In the present situation, the pursuer, the McManuses and others were the subject of the Practice Direction No 1 of 2013. McManus became the lead action. There was no objection to that occurring; all parties being represented by the same counsel and agents. The McManuses’ application for permission to appeal to the UK Supreme Court makes it clear that the cohort were regarding McManus as if it were a lead in a class action.”

He continued: “The whole purpose of having a lead action is that issues common (generic) to all the actions can be litigated in the one case. It is a corollary to that that the decision on these generic issues will apply (that is be binding) on all the litigants. The interests of the pursuer on the generic issues were identical to those of the McManuses. For the purposes of res judicata, the interests of the parties in all the cases are taken to be the same.”

Analysing whether there were any significant differences in the pursuer’s case, Lord Carloway said: “The Lord Ordinary [in McManus] determined that the defenders did owe certain duties to the occupiers, notably to use the appropriate skill and competence of environmental engineers, but that they had not breached their duty. They had acted in accordance with the common and accepted practice at the time. That was what was litigated and determined. The pursuer is trying to re-litigate that issue; that she cannot do as it is res judicata.”

He concluded: “The manner in which the pursuer seeks to circumvent the plea is to make additional averments about particular solvents which should have been looked for and how they might have been dealt with. These issues were all canvassed in McManus and dealt with by the Lord Ordinary. Adding additional detail to the pursuer’s pleadings does not change the essence of what was litigated; the grounds of action remain the same.”

The court therefore allowed the reclaiming motion and granted decree of absolvitor.