Summary
In McCluskey v Scott Wilson[1] the Inner House has provided useful guidance on application of the doctrine of res judicata in the context of group actions.
From 2012 actions were raised by the residents of a housing estate in Motherwell (“Watling Street”), claiming personal injury as a result of the development allegedly being built on contaminated land. It was claimed that engineers, Scott Wilson, who were involved in the remediation of the site, both owed duties to the residents and breached those duties.
The earlier decision in McManus v Scott Wilson[2] had already decided that while Scott Wilson did owe a duty of care to the future residents of Watling Street they did not breach that duty. The question now was whether the decision in McManus was binding on all of the other residents, the risk being that if it was not binding each of the remaining residents could restart their claim. In considering that question the court had to decide whether the case brought by Ms McCluskey was: (i) between the same parties; and (ii) substantially on the same grounds as McManus.
The court answered both of those questions in the affirmative. A key part of the decision is that the court put in place a Practice Direction specifically to case manage this group action. The court noted that “[t]here was no objection to that occurring; all parties being represented by the same counsel and agents.”
The McManus action was then taken forward as a lead action to determine issues which were generic to all of the actions. It is on that basis that the court ruled that “[i]t is a corollary to that that the decision on these generic issues will apply (that is be binding) on all the litigants.” On that basis the court held that Ms McCluskey and Mr and Mrs McManus were the same parties for the purpose of res judicata.
In terms of whether the case was brought on substantially the same grounds the court noted that the essence of the McManus case were allegations of professional negligence for failure to remediate the site properly. It was held that Scott Wilson had not breached their duty of care in that regard. The court ruled that in McCluskey the pleadings did not change the essence of what was litigated, the grounds of action remained the same and therefore the case was being brought substantially on the same grounds. On that basis the Inner House upheld the defender’s plea of res judicata.
Commentary
In some ways this decision affirms the established test for res judicata. In RG v Glasgow City Council[3] the court already noted that neither “the same parties” nor “the subject matter” should be construed too narrowly when it comes to res judicata.
However, this decision is of interest because it was decided in the context of a group action. While the Watling Street case was brought before the introduction of the new Scottish class action procedure it may provide some useful insight into it.
As in McManus, the purpose of having a representative party and a group register in Scottish class actions is to ensure that the generic issues being decided in group proceedings are binding on all of the parties to those proceedings.
The McCluskey decision provides comfort for defenders in Scottish class actions but also highlights an area of risk. The decision in McCluskey was expressly based on the fact that the pursuers agreed to their individual actions being managed in line with the Practice Direction. While the binding nature of interlocutors is expressly set out in the rules on group proceedings, McCluskey can be pointed to as support for arguments that pursuers who ‘opt-in’ to group proceedings will be bound by a decision on the generic issues of fact or law which are litigated in those group proceedings.
How that argument plays out will depend on the exact nature of the case. There may be instances where a prospective pursuer will realise that they are no longer able to vindicate their right because the same type of claim has already been determined against them. Conversely, there may be instances where a defender may be found to have breached a duty of care in relation to a large group of people and could then be sued repeatedly, or in further group proceedings, (subject to prescription) by people who did not form part of the original groups. There is certainly the risk of satellite litigation about which issues were ‘generic’ to the original group proceedings. Defenders may take some encouragement on that front that both in McCluskey and in the reported decisions on group proceedings to date, the court has taken an expansive approach when deciding which issues are generic to a claim. The judgment also noted that there was already precedent that members of an association representing a certain interest or beneficiaries under the same will could be deemed to be the same party in attempts to re-litigate the same subject matter. These associations have not necessarily been formed to vindicate a legal right. The McCluskey decision raises the interesting possibility that voluntarily belonging to certain types of group can have an impact when it comes to res judicata. In particular, where group proceedings are the vehicle for a claim by a representative of that type of body, a person might find themselves bound by a decision even if they have not expressly chosen to join those group proceedings.
However clear-cut the parties or subject matter may seem, when dealing with a case with a potentially large group of people who may be affected by the decision careful consideration should be given to how the disposal of the case, in or out of court, deals with the remaining members of that group.
[1] [2024] CSIH 26
[2] [2024] CSIH 26
[3] [2020] SC 1
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