Pursuer in group of actions allowed to continue case on limited basis despite dismissal of lead case

About this case:

• Citation:
  [2024] CSOH 4
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Clark

Pursuer Laura McCluskey was one of 44 pursuers who raised actions against Scott Wilson Scotland Ltd, and originally had her action sisted pending the outcome of the lead case. The defender argued that the pursuer sought to re-litigate substantially the same issues and therefore the case was res judicata and amounted to an abuse of process.

The case was heard by Lord Clark in the Outer House of the Court of Session. Sutherland, advocate, appeared for the pursuer and Barne KC for the defender.

Access to justice

The pursuer’s action was one of a group of actions raised against the defender in 2013 by persons who claimed to have suffered personal injury as a result of inhaling harmful gases alleged to be present at the defender’s housing development in Motherwell. Of the 44 cases raised in the group, one, McManus v Scott Wilson Scotland Ltd, was identified as the lead case, with the pursuer’s case and 42 others sisted pending the outcome of that case.

At a preliminary hearing in the McManus case in 2020, the lord ordinary held that the defender owed a duty of care to the pursuers but had not breached that duty in any of the ways argued for the pursuers, a decision upheld by the Inner House in 2021. It was contended by the defender that the pursuer in the present case sought to establish that it was in breach of the same duty it was held not to have breached in McManus, and ought to be dismissed as res judicata.

It was submitted for the defender that the pursuer sought to re-litigate the same issues and lead substantially the same evidence as in McManus, which fell squarely within the scope of abuse of process. On the facts that the pursuer offered to prove, it had already been conclusively determined that the defender fulfilled its duty of care to a person in the position of the pursuer.

Counsel for the pursuer submitted that, while the court was entitled to give weight to some, if not all, the facts of McManus, this pursuer would adduce evidence that was not previously before the court. Dismissal of the action on the basis of res judicata would amount to a significant interference with a fundamental right of access to justice in respect of the pursuer.

In respect of the abuse of process argument, it was submitted that this was a draconian power which should be regarded as an option of last resort. The pursuer was not bound to accept that the decision in the previous action was determinative of her own right of action. McManus had also been substantially affected by the late withdrawal of an expert witness for the pursuers, which restricted the scope of the proof.

Not entirely ruled

In his decision, Lord Clark said of res judicata: “The pursuer here is of course a different person from the pursuers in McManus. The pursuer sues in respect of a different property in the housing scheme and has her own pecuniary interest. However, this pursuer requires to establish existence of duty and breach of duty by the defender, before the court can go on to consider causation and loss. These first two points are the only issues focussed upon in McManus.”

However, he continued: “Here, there are additional averments and an alleged further breach of duty. Even if these can be viewed as wrongly omitted by the pursuer in McManus, I cannot at this stage be satisfied that in the present case this aspect of the test for res judicata is met.”

Asking whether the case amounted to abuse of process, Lord Clark said: “The pursuer’s new averments concern matters which, while said to be relevant to causation and that not being an issue at the proof before answer in McManus, are also relevant to breach of duty. I have real difficulty in understanding that facts relevant to breach of duty were omitted because they were viewed as relating to causation. I accept the defender’s position that the pursuers should have recognised in advance of the proof in McManus that this ought to have been the subject of evidence to be led.”

He concluded: “However, the question remains as to whether having not picked up, in McManus, the need to lead evidence on the new averments now raised, the pursuer’s case in the present action becomes an abuse of process. Given the further averments and the additional alleged breach of duty, the present case was not entirely ruled by the decision in McManus.”

Lord Clark therefore decided that the action should be allowed to proceed, albeit only on the basis of matters not previously litigated in McManus. A by-order hearing was therefore fixed in order to hear addresses on which of the pursuer’s averments should be dealt with at the proof.