Scottish Court of Session Decisions

Fitchie & Anor v. City Edinburgh Council [2003] Scot (14 May 2003)

OUTER HOUSE, COURT OF SESSION
A370/00	OPINION OF T. G. COUTTS, Q.C. SITTING AS A TEMPORARY JUDGE in the cause ALAN FITCHIE and KAREN FITCHIE Pursuers; against CITY OF EDINBURGH COUNCIL Defenders:   ________________

 

Pursuers: Party; Party Litigants

Defenders: McCormack; Simpson & Marwick, W.S.

14 May 2003

1. The pursuers, party litigants, produced a set of pleadings in a closed record against which several preliminary pleas were stated by the defenders. The pursuers in Condescendence 1 state that they seek reparation for loss injury and damage which, it is alleged, arose as a result of the defenders' predecessors' actions whereby they eventually assumed parental rights over the pursuers' child after proceedings between them and the pursuers took place in Edinburgh Sheriff Court. The matter was subsequently unsuccessfully appealed to the Inner House of the Court of Session. Sheriff Horsburgh in an extended and detailed judgment decided that the resolutions made by the local authority under Section 16 of the Social Work (Scotland) Act 1968 and the resolution of the then Lothian Regional Council assuming parental rights in respect of the child of the appellants should not lapse.
2. It was of significance to the Sheriff and the Inner House that the pursuers did not lead any evidence before the Sheriff, that Mr Fitchie did not participate at all in the proceedings after his application for an adjournment was refused and that Mrs Fitchie, who was represented by counsel and solicitors, also left the Court. Counsel continued to act on her behalf. As a result evidence adverse to the pursuers was not cross-examined nor was evidence given by them nor did they seek to lead further evidence before the Sheriff.
3. In 1997 the pursuers' appeal, Lothian Regional Council v F 1997 S.C. 164 was heard. The appeal was unsuccessful. What is significant for the present action is that it was there contended there additional evidence should be admitted; that there were additional sources of information; that the witnesses or some of them should be recalled. It was said that, by that stage, the pursuers had obtained notes made by various social workers about access visits, the contents of which it was alleged did not square with what had been reported to Children's Hearings (1997 S.C. 169F-H). Put shortly, the contention before the Inner House was that the adverse evidence which had been led against the pursuers was not accurate. In the present action the pursuers elaborate this contention, although by way of inspecific generalities. They aver,

"Employees of the defenders abused their power by manufacturing and fabricating damaging relevant information regarding the child and pursuers. In addition, the pursuers believe and aver that the defenders also manufactured and falsified information from other agencies".

These, it is said, involved the defenders producing "lies of a misleading and malicious nature". Further, they claim that the defenders "supplied evidence of facts of an inaccurate, misleading and untruthful evidence throughout the Children's Hearing system and the subsequent appeal to the Inner House" (sic.).

4. They assert that they, the pursuers, were "victims of a social worker's actions", that they "suffered a real loss when their child was taken from them by the defenders, loss of physical presence of the child as well as the social comfort the child brought to them". The pursuers have also "lost an aspect of their social life with the depravation (sic) of their child which has affected their personal life. The pursuers have lost the love, care and affection which the child brought to them. The loss of the pursuer's child is a real loss and constitutes three quarters of the sum sued for by the pursuers. The remaining quarter is for personal injuries sustained by the pursuers". There is more in a similar vein which repeats the type of contention referred to above and even goes into a time beyond the child's 16^th birthday, by which time the child was not subject to any order granted before that age.
5. What is abundantly clear is that the assumption of parental rights by Lothian Regional Council was the result of a due process of law properly carried out at the time and adjudicated upon not only by the Sheriff but also by the Inner House.
6. In these circumstances the defenders, unsure of the nature and thrust of the pursuers' present action pled and argued several preliminary pleas.
7. The first was that the action, being time barred, should be dismissed. The action was raised three years after the decision in the Inner House. The pursuers claimed that it was the decision of the Inner House which crystallised the case and their loss and that they had raised an action timeously thereafter. Failing that, they sought leave to pursue the action under Section 19A of the Prescription and Limitation (Scotland) Act which gives the Court a discretion to allow an action though time barred to proceed.
8. In my view it is apparent from the full account of events in the Inner House and from what was said to the Inner House by the pursuers, that the ground of the complaint, ie. that misleading and inaccurate evidence had been improperly led before the Sheriff, was within their knowledge prior to the hearing of the appeal and certainly more than three years before the present action was raised. The pursuers in their pleadings and in their expressions to the Inner House have made it clear that they were actually aware of the alleged wrong more than three years before the action was raised. There are no averments about any reason why relevant advice was not taken or why the case was not timeously pursued. The action is accordingly out of time having regard to Section 17 of the Prescription and Limitation (Scotland) Act 1975 and the only question which remains is whether if this is truly an action about personal injuries, in the exercise of discretion under Section 19A of that Act it should be allowed to proceed. The circumstances of the case are not such as to allow the exercise of discretion. It appears wholly unmeritorious and in any event nearly three years were allowed to elapse after the matter was last before the Court before the present action was attempted.
9. The defenders also pled that the action was an attempt to re-litigate the subject matter of the application to the Sheriff, that the subject matter of the proceedings concerning assumption of parental rights being a res judicata the action should be dismissed and that the present allegations would have been competent before the Sheriff but were omitted.
10. It is correct to say that the pursuers did disable themselves from raising all these matters, if indeed they were competent, before the Sheriff by their actions in walking out of Court. Accordingly the matters in the present action were omitted at that time. However, it is not thought necessary to enter upon a discussion of res judicata since the defenders also pled that the action was irrelevant, lacking in specification and incompetently laid in the conclusion.
11. The conclusion as framed reads that, "the pursuers are now fully aware of the seriousness of the damage they have sustained as a direct consequence of the evidence of the defenders' perjury and fraud on the Court and now sues the defenders for the sum of one million four hundred thousand pounds Sterling or a percentage thereof to either or both as the Court sees fit."
12. The pursuers in the debate specifically denied that they were contending that the decision of the Sheriff and the Inner House should be reduced or that the order relating to parental rights could be varied. That approach was inevitable. Perjury by a witness is not a ground of reduction in any event and the order has now run its course. What they claimed was that they had suffered loss, injury and damage because of improper actings by the defenders' servants which caused them injury. That injury, they said, was injury to their feelings and also in relation to the loss of the child.
13. So far as the loss of parenting of a child is concerned there is no authority for such a claim sounding in damages. The nearest that any statement of the law comes to suggesting that there might be a claim is a sentence in the book by Professor Walker on Delict at page 713. He states, "it is probable that any third party who entices a child to leave his parent is liable in damages". He says the basis of the claim is probably interference with the natural parental rights to custody and upbringing. However, he goes on to say that such a claim would certainly be incompetent if the custody of the child has been judicially awarded to some person other than the pursuing parent. That is the case here. In any event the professor's view was disapproved by Lord Morton of Shuna in McKeen v Chief Constable, Lothian & Borders Police 1994 S.L.T. 93 where he held, in my respectful view correctly, that the right of a parent to sue for the loss of society and company of a child was one which did not exist under the law of Scotland except in the special circumstances of a death resulting from personal injury sustained by the child.
14. That element in the pursuers' claim is stated by them to be three quarters of the sum sued for. Since that is incompetent, the Court requires to consider the remaining quarter or £350,000 which is said to be for personal injuries sustained by the pursuers.
15. There are no relevant averments of any personal injury properly so called having resulted from the alleged utterance of untrue statements. If anything, untrue statements might be defamatory but if that were the proposition detailed specification is required of what was said to whom and by whom and in what circumstances, before any relevant claim can arise. There is no such specification here.
16. The conclusion as framed is incompetent. It does not follow the Rules of Court in relation to a claim for damages and it does not distinguish between the pursuers. No doubt that might be subject to amendment but as it stands the action is incompetent for that reason alone. I also hold that the action in so far as related to the pursuers' loss of parental rights over their child sounding in damages is equally incompetent. The pursuers at debate disclaimed any intention of attempting to re-litigate that matter or reduce the decree and accordingly, since it stands as a valid transfer of parental responsibilities from the pursuers to the local authority no damages arise therefrom.
17. Thus insofar as the damages claimed are not incompetently claimed they are not relevantly claimed. I will accordingly sustain the first, fifth and sixth pleas-in-law for the defenders and dismiss the action.