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Case Law Update: Choice of Law and Forum Shopping in Asbestos Litigation - Andrew Forsyth, Brodies LLP

29/03/18. An Opinion issued by Lord Tyre in the Court of Session this week provides that the applicable law for an asbestos related claim is the law of the country where the “injury occurred”, as opposed to the country of exposure to asbestos dust. Due to the higher damages awards in fatal cases, and because plaques are compensatable in Scotland, the Opinion in Docherty v Secretary of State, the most recent chapter in a long-running case, will have significance for those involved in the defence of disease claims, particularly asbestos litigation.

With the law differing significantly between Scotland and England in asbestos litigation, we often require to advise clients on whether Scots or another law (typically English law) applies to a particular claim. Under Scots law, pleural plaques claims are actionable, and the damages regime is much more generous for fatal claims. This often leads to a clamour amongst claimants to have Scots law apply to their asbestos related cases. This update is not the place for a full exploration on conflict of laws and jurisdiction, but it is important to keep in mind two things: (i) applicable jurisdiction is distinct from applicable law. Just because a defendant can be sued in Scotland, it does not necessarily follow that Scots law applies to that defendant; (ii) the legislation and conventions relating to applicable law for personal injury cases are not retrospective and, for asbestos claims, applicable law will be determined in relation to the common law; and (iii) in multi-defendant cases, different laws can apply to different defendants.

We have defended a number of cases on the basis that...

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