Hansard

I will go through each of the petitions to establish their status. However, first we need to discuss the important matter of petition PE336, which concerns asbestos poisoning. To find out what progress has been made on that petition, committee members should refer to a note on last week's meeting with the Lord President and to the final practice note that has been issued.Bill Aitken, the clerks and I met Lord Cullen and others over the past month to convey the committee's support for the principles behind the petition. I think that we have made some progress, although it is up to the committee to determine whether that is the case. I will set out the main points, after which Bill will no doubt want to add some comments. I would appreciate it if we could then discuss the matter so that I can hear the committee's views about the petition's progress.I should point out that, although the matter was first raised in the petition, it has now been the subject of a committee report and is therefore part of the committee's general work load. In its report, the committee recommended that the timetable for diets of proof should be shortened to six months and that a judge should preside over proceedings six weeks before proof.Members will have a copy of Lord Cullen's letter, which explains his attitude towards those recommendations. He says:"I have carefully considered the Committee's recommendations in regard to the procedure in mesothelioma cases and other cases with similar characteristics. I entirely agree that, in view of the short life expectancy of the pursuers, such cases should be brought to a conclusion, whether by settlement or judgment, as speedily as possible."He also recognises the amount of time and effort that the committee has devoted to the matter. Although he has some doubts about our recommendation on shortening the timetable to six months, he has taken our points on board and has produced the practice note accordingly.Members will be aware that, under new rules, a diet of proof has to take place 12 months from the date on which the case is raised and that rule 43.8 allows for either party to apply for the variation of the timetable. However, it has been made clear that any extension beyond those 12 months is unlikely.It is important to point out that the proposal in question centres on rule 43.8. As a result, we sought clarification from the Lord President about what the rule would mean in practice. He made it clear that references to cases of terminal illness have been introduced as a matter of policy and the factor should weigh significantly in the court's decision. He also explained that as each case will vary it would not be appropriate to take anything away from the judge's responsibility by specifying a particular timetable. For those reasons, he did not agree to our recommendation for a six-month timetable. I should make it clear that we strongly emphasised that the committee wanted to achieve such a timetable. We still feel that a judge should be involved in the proceedings to ensure that the parties are ready.I refer members to the practice note itself, which if accepted sets out the rules that judges will adopt. One departure from our suggestions is that the procedure is to be adopted for all parties who have a terminal illness who apply for a variation to the timetable, even where the illness is not necessarily related to the action. The Lord President felt that we could not distinguish between those who have a terminal illness that is related to the action and those who simply have a short life expectancy. I agree that that is a fair way in which to proceed.Members can read through the rules. Rule 43.1 is about application and interpretation, rule 43.2 is about summons and pleadings and so on, but the heart of the matter is the variation of the timetable. We pressed hard on what will happen when parties apply for a shortening of the timetable. We wanted to know whether it will be possible to achieve a six-month timetable and were told that it will be. However, if the judge determines that the process might take a bit longer, it will be their prerogative to say that a seven or eight-month timetable is required. It is important that members read the Lord President's notes, but I wanted to let members know that we pressed strongly on that issue. I believe that we are near to achieving our objectives. The practice note will allow for the possibility of a six-month timetable, although where it is shown that that cannot be achieved, the timetable might be slightly longer—that will depend on the complications of the case.I have a doubt at the back of my mind about whether, given the short timetable, there should be a point at which parties go to the judge to ensure that they are prepared for the proof. We pressed that point with the judges, but they are not keen on it for several reasons. One reason relates to the resources of the court; another is that judges feel that, as the timetable will accelerate all the processes, the judges will be hard on parties who are not prepared. If a six, seven or eight-month timetable is agreed, the parties will be expected to adhere to it.The petitioners and the committee are concerned about parties who will not be affected by the new rules and who will have to undergo the procedure under the old rules because we cannot change the rules halfway through proceedings. It is the judges' view that, by dint of the dynamics of the new rules—both the Coulsfield rules and the new shortening of the timetable where a terminal illness is involved—the existing cases will be accelerated. Lord Mackay will continue to conduct the by order hearings for a certain period to ensure that the systems are fast tracked.The matter is to do with policy. We questioned the wording of the practice note, because at first read it seems to be in casual or loose language—for example, it states that the court must"look with considerable sympathy on"such requests. However, we have been assured that no judge would contravene such phrasing in a practice note because it is deemed to be policy and is instructed by the Lord President. We mentioned that, to a lawyer, the wording does not mean anything, but we were assured in lay person's terms that the wording is the language of the judiciary for saying, "This must be done."We had a hard discussion and I believe that we achieved a lot—although that is for the committee to determine.