CAMPAIGNERS pressing for a change in the law so they can sue Scottish Water over the notorious “Seafield stench” today claimed their efforts were being blocked by a “conservative” judiciary.
Leith Links Residents Association lodged a petition at the Scottish Parliament earlier this year arguing that people in Scotland should be able to take collective “class actions” against companies, as is already the case in England and Wales.
Residents have been complaining for decades about the smell from the Seafield sewage works and were inspired by the idea of a class action after a similar case in Liverpool led to an out-of-court settlement of millions of pounds for residents.
A review of Scotland’s civil law system by Lord Gill recommended the present barriers to class actions should be removed, but the residents fear there is little political will to implement the changes because it could prove costly.
They also highlighted problems obtaining crucial documents and the massive costs involved in pursuing legal action. At present, a multi-party action in Scotland would require each individual claimant to pay a £180 fee, meaning 500 residents would incur a charge of £90,000. In England and Wales, a class action involves one fee of £1500.
In the absence of new legislation, the residents’ petition calls for existing court rules to be used to allow multiple actions to go ahead. However, in a response to the Scottish Parliament’s petitions committee, the head of Scotland’s judiciary, the Lord President Lord Hamilton, suggested the rules could only be varied for cases which were already going through the system.
He also pointed out the rules would not affect the fees charged, said he was not clear what the problem was in relation to documents and argued primary legislation would be needed.
Rob Kirkwood, of Leith Links Residents Association, said: “The petition we submitted was based on sound legal opinion. This is a very negative response to all our proposals.
“I don’t believe there is a will in the judiciary for any changes. The conservative nature of the judiciary is well known.”
The Scottish Government responded to the committee saying it planned to introduce legislation to allow class actions within the lifetime of the current parliament – before 2016.
But Mr Kirkwood pointed to the government’s response to the Gill report – supporting the introduction of class actions – which warned that Scotland faced “a period of unprecedented pressure on public finances”, adding that “simply spending more money on a wider range of publicly funded services to improve access to justice is unaffordable and unsustainable”.
Mr Kirkwood said: “Scottish ministers responded to the Gill report saying there was no money and what we needed were proposals that were innovative. I don’t believe it will be a priority for them in the current economic situation.”