Phyllis Craig, Chair of CAA, today (22.4.2014) gave evidence to the  Justice Committee of the Scottish Parliament regarding the Courts Reform (Scotland) Bill.  The proposed Bill seeks, amongst other reforms, to remove all asbestos cases, where the value is deemed to be less than £ 150,000, from the Court of Session (Scotland’s Supreme Court) to Sheriff Courts.  Advocate  fees (Advocates are solicitors who have experience and skill in a particular area and appear in the highest courts) would not be recoverable under the proposed changes.

This would leave victims with a stark choice:  Pay for your own Advocate’s fees or go to court without an experienced Advocate, and face the insurers, who would be able to retain Advocates regardless of the cost.

Given the complexities involved in industrial disease cases and the fundamental issues of the right to life, it is CAA’s contention that our clients must continue to have access to the highest courts i.e. the Supreme Court (Court of Session). We believe that adequate resources and proper legal representation are the best method of ensuring equality at arms.

Evidence to Scottish Parliament Justice Committee 22 April 2014

Courts Reform (Scotland) Bill: Scheduled evidence from:
Phyllis Craig MBE, Senior Welfare Rights Officer & Chair of  Clydeside Action on Asbestos;
Sheriff Principal James Taylor;
Kay McCorquodale, Secretary, Review of Expenses and Funding of Civil Litigation in Scotland;
Rt Hon Lord Gill, Lord President of the Court of Session;
Roddy Flinn, Legal Secretary to the Lord President;
Eric McQueen, Chief Executive, Scottish Court Service;
Roseanna Cunningham, Minister for Community Safety and Legal Affairs, Cameron Stewart, Bill Team Leader, Hamish Goodall and Hazel Gibson, Policy Executives, Nicholas Duffy and Alastair Smith, Solicitors, Legal Directorate, Scottish Government.

We are extremely concerned that the insurance industry will continue to throw its considerable resources to defend any and all asbestos related claims as it so powerfully demonstrated during its exhaustive legal battle with the Scottish Government over the introduction of the Damages (Scotland) Act 2011.

The insurance industry acted swiftly to challenge The Damages (Scotland) Act and had asked the courts to consider that their “Human Rights” had been breached. For the widows and widowers of those who have succumbed to fatal asbestos related conditions this was viewed as a sick irony. They wish the insurers would act as quickly to compensate the victims of asbestos.

It was however a clear indication of the industry’s intention to vigorously challenge, and expend any amount of resources, when defending asbestos related claims: Resources which are unavailable to the victims. The courts must ensure equality at arms and we believe this can only be achieved if the pursuer has access to the best and most experienced Counsel.

We remain concerned that the transfer of asbestos related claims to the Sheriff Court will disadvantage the Pursuer unless the fees are recoverable as we have no hesitation in believing that the insurers will instruct Counsel regardless of cost.

we have no hesitation in believing that the insurers will instruct Counsel regardless of cost.

Our courts must be ready to deal with the ever increasing complexity of asbestos litigation; health and safety law, liability, causation, date of knowledge etc.  CAA believe this is best achieved by ensuring that the most experienced advocates and judges are available to those involved in  asbestos related litigation.  We believe this is currently available in the Court of Session and accordingly we believe that all asbestos related claims be dealt with at this level.

 

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