There’s never enough time to fully track asbestos developments in Europe. However, a December 2018 article from Clyde & Co, caught my eye and is worth reading as to the assessment of defense side lawyer regarding the evidence needed for a plaintiff to prevail on secondary exposure cases, and trial practice in Scotland. The conclusions were as follows:
“What can we learn?
- These cases were heard within a period of a few weeks of each other, albeit by separate Judges. Inevitably the Judges must have conferred as to their decisions, which indicate that the standard of proof required in mesothelioma cases is very low. Much of the evidence was presented by the paralegals who took the initial witness statements. Commission evidence was not available. Affidavits were not available. The Courts were prepared to join the dots, albeit there were considerable gaps in the evidence.
- These decisions indicate that Robin Howie is regarded by the court as a reliable and persuasive witness.
- The importance of ensuring that all historical factual evidence is retained and indexed is essential. The only way to challenge cases where there is limited factual evidence provided by pursuers is by being in a position to lead contradictory factual evidence. Insurers/defender law firms have, in some cases, been able to access appropriate information from prior claims.
- Finally, insurers should be cautious to challenge these cases on the basis of patchy evidence. Defenders are rarely provided with witness statements in Scotland. Efforts have been made over the years to encourage early and full disclosure of evidence, but these decisions do not support the insurers’ plight in this regard. Insurers have been warned that they should only expend resources on cases which are likely to involve a real dispute as to exposure or liability.”