Sheriff Appeal Court refuses appeal against sheriff’s decision not to remit bus crash damages actions to Court of Session

Suzanne, Michael, and Kieran Henderson raised actions against Mapfre Middlesea Insurance Plc seeking damages for the injuries they sustained. A motion to remit the action to the Court of Session due to its importance and difficulty was refused by a sheriff in the All-Scotland Sheriff Personal Injury Court in January 2021.

The appeals were heard by Sheriff Principal Duncan Murray, sitting with Appeal Sheriffs Alasdair MacFadyen and Nigel Ross. The appellants were represented by Wilson, advocate, and the respondent by Stuart QC.

Sisted pending outcome

The three actions arose out of a road traffic accident that occurred in Malta on 9 April 2018. The appellants had been travelling on an open-topped tourist sightseeing bus that collided with the branches of overhanging trees, causing damage to the vehicle and its passengers. A fourth action arising from the accident proceeded in the Court of Session.

In January 2021, the sheriff who heard all three actions refused permission to remit the cases to the Court of Session per section 92 of the Courts Reform (Scotland) Act 2014. In each case the sheriff’s reasoning was identical. While he was satisfied that there were matters of importance and difficulty that would make it appropriate to remit the actions, he exercised his discretion not to.

The sheriff was led to his conclusions by the issue of quantum of damages. It was claimed by the respondent that under Maltese law their insurance policy was limited to 6.07 million Euros irrespective of the number of claims or the jurisdiction in which they were brought. There were a number of other actions in other jurisdictions arising from the same accident, including in England and in Malta, and it was claimed that every European claim had to be decided before any aggregation of claims could be made or paid out.

The sheriff reasoned that as the other actions were not related to the appellants’, the actions should be sisted pending the outcome of the Court of Session action and the decision there on indemnity and apportionment. He noted that two other sheriff court actions had already been sisted pending the outcome of this action.

Counsel for the appellants submitted that the sheriff had erred in holding that the other sheriff court actions were not “related actions” in terms of Article 29 of EC Regulation 1215/2012 on judgment in civil and commercial matters, and in not considering the effect of Article 30. Further, their actions had been raised before the Court of Session action, and in these circumstances, it was not appropriate for permissible for proceedings to be sisted, as the ASSPIC was the “court first seised”.

Would not achieve effect

Delivering the opinion of the court, Sheriff Principal MacFadyen noted: “It does not matter whether the sheriff erred in considering that the argument concerned Article 29 of the Directive as opposed to Article 30. That is because they are both irrelevant to the questions raised in this action before the sheriff and this court. The Directive only applies to proceedings raised in separate member states of the European Union (which meantime includes the United Kingdom), not to competing or connected proceedings within a member state.”

He continued: “That being the case, we fail to see how any misunderstanding had any effect on his substantive decision to refuse to request a remit to the Court of Session. On the contrary, he clearly gave consideration to the fact that the sheriff court actions and [the Court of Session action] arose out of the same accident and the sheriff court actions all involved members of the same family as the pursuers.”

On whether the sheriff had appropriately exercised his discretion not to remit, he said: “Remitting these actions to the Court of Session would not in itself achieve the, admittedly desirable, effect of a single binding decision in all the Scottish cases. Accordingly, it matters not whether the actions proceed in the sheriff court and Court of Session, or the Court of Session alone.”

He continued: “If a decision were made to sist two of the ASSPIC actions and allow one to proceed, or if the decision were to be to sist all three, then it mattered not whether they were sisted in ASSPIC or the Court of Session. What was relevant for the sheriff to consider, which clearly he did, was that these actions were already under way in ASSPIC.”

Sheriff Principal MacFadyen concluded: “The decision reached by the sheriff was a reasonable one, comfortably within the wide ambit of discretion open to him. There is no ground upon which we could, or should, interfere with that and the appeal therefore falls to be refused.”