Scottish Court of Session Decisions

---

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Tudhope v. Park (t/a Park Hutchison, Solicitors) [2004] ScotCS 3 (07 January 2004)
URL: http://www.bailii.org/scot/cases/ScotCS/2004/3.html
Cite as: [2004] ScotCS 3, 2005 SCLR 125

---

[New search] [Help]

---

Tudhope v. Park (t/a Park Hutchison, Solicitors) [2004] ScotCS 3 (07 January 2004)

OUTER HOUSE, COURT OF SESSION
PD912/03	OPINION OF LORD CAMERON OF LOCHBROOM in the cause JOHN TUDHOPE Pursuer; against FINLAY PARK, trading as PARK HUTCHISON, SOLICITORS Defenders:   ________________

 

 

Pursuer: D. Davidson; Thompsons

Defenders: Dunlop; Brechin Tindal Oatts

7 January 2004

[1]     The defenders have enrolled a motion in terms of Rule of Court 43.5 to withdraw the cause from the procedure set out in Chapter 43 of the Rules of Court and to appoint the cause to proceed as an ordinary action in respect that "the present action is for damages arising from alleged professional negligence and therefore is not a personal injuries action in terms of Rule of Court 43.1.1: and in any event the cause is unsuitable for the present form of action due to its nature and complexity; all of which constitute exceptional reasons in terms of Rule of Court 43.5.2.". The motion has been opposed by the pursuer.

[2]     At the outset counsel for the defenders intimated that the only ground upon which he sought to have his motion granted was that the present action is not one which falls within the procedure provided for in Chapter 43. Accordingly there were exceptional reasons for not following that procedure.

[3]     The summons in the action was lodged with the court in September 2003. It was not accepted by the General Department on the view that the claim was not a personal injuries action in terms of Chapter 43. The case was put out for argument in the Civil Vacation Court on 18 September 2003 for a hearing before Lady Paton. The pursuer was represented by Mr. Stevenson, Solicitor- advocate. There was then, of course, no contradictor. Lady Paton determined that the summons should pass the signet in the form in which it was presented, namely, in the new abbreviated form for a personal injuries action provided by Chapter 43 as substituted by the Act of Sederunt (Rules of the Court of Session Amendment No. 2)(Personal Injuries Actions) 2002 rather than in the form appropriate for an ordinary action. In so determining she issued an Opinion dated 30 October 2003 giving reasons for her determination. It was common ground between parties before me that the issue debated is not foreclosed as being res iudicata. Accordingly, it could be reopened at this stage since the defender has now entered appearance and defences have been lodged.

[4]     In his summons the pursuer alleges professional negligence on the part of the defender in failing to advise him of the effect of section 17 of the Prescription and Limitation (Scotland) Act 1973 until 2002, by which time his claim for vibration-induced white finger had become time-barred. In his defences the defender denies that he was negligent. In particular he asserts that any claim which the pursuer may have had against his former employers was irredeemably time-barred by the time that the pursuer approached the defender.

[5]     The reasoning which led Lady Paton to the conclusion that the present action was one which fell within the new rules in Chapter 43 is set out in paragraphs 9 and 10 of her Opinion and I do not repeat them.

[6]     In presenting his submissions counsel for the defender began by referring to the defender's plea to competency which seeks dismissal of the action. However at the end of the day, he did not press his argument to the point of suggesting that if his submission succeeded, the court should order dismissal of the action rather than appointment of the cause to proceed as an ordinary action. In this he was well advised. Counsel maintained that the point at issue was a general one. If an action was inappropriately raised in the new abbreviated form and thereafter, when defences had been lodged, it was ordered to proceed as an ordinary action, extra expense would be incurred unnecessarily. I am not presently persuaded that such is the case but, even if it were so, it is nothing to the point, in my opinion, in a consideration of the appropriateness of the new procedure for this action and, by extension, to any action of the kind which is the subject of the present summons.

[7]     Counsel went on to submit that Lady Paton had erred in her determination that the action was one which qualified in terms of the definition of a personal injuries action in Rule 43.1.2. In particular she had fallen into error in proceeding upon the basis that the action was one which did "arise from personal injuries" in that the fundamental or primary cause underlying the litigation is the personal injury suffered by the pursuer in the form of vibration-induced white finger. Rather the question to be asked was whether the damages sought were either for personal injuries or at least were damages arising from personal injuries. The fact that a claim by an individual for damages for personal injuries or arising from personal injuries had existed against a third party and was a sine qua non in an action for professional negligence against his solicitor for failure to raise an action timeously, did not convert that action into a personal injuries action. Damages in such an action would be assessed on the basis of that the solicitor's negligence had caused loss of the pursuer's right to advance that claim in a court of law and that that right had some tangible value. Counsel made reference to passages in the Opinion of the Court in Kyle v P & J Stormonth Darling, WS 1994 SLT 191 cited in the Opinion of Lord Emslie in Pearson v Imray and Others (25 April 2003 unreported). While the definition of a personal injuries action in the new Rule might appear, on the face of it, more extensive than the terms of Rule 89A (1)(a) considered by Lord Osborne in Mackenzie v Digby Brown & Co. 1992 SLT 891, nevertheless the reasoning in that case was apt to the present action. Counsel also referred to Morris v Drysdale 1992 SLT 186 in which a widow sued on her own behalf and that of her pupil child for damages sustained as a result of the death of her husband in a motor accident. Lord Morison held that the changes effected by the passing of the Damages (Scotland) Act 1976 (which amended the law relating to the damages recoverable in respect of deaths caused by personal injuries) did not take actions in which such claims were made out of the class of jury actions as an action for damages for personal injuries in terms of section 11 (a) of the Court of Session Act 1988. Counsel also placed reliance upon possible difficulties in cases such as the present if the procedure to be followed extended to the application of Rule 43.9 relating to the making by each party of valuation of claim and to that of Rule 43.11 and the ordering of an interim payment of damages under paragraph (3)(b) of that Rule. In sum, such an action as the present could not be described in ordinary parlance as an action for personal injuries, any more than would actions for defamation. Reference was made to Practice Note No. 2 of 2003.

[8]     For his part, counsel for the pursuer contented himself with adopting the reasoning of Lady Paton, pointing out that the procedure in Chapter 43 was intended to secure rapid determination of the actions to which it applied. If the submission for the defender was correct the phrase "or arising from" in its context had no meaning, since such actions as that in Morris v Drysdale would be covered by the phrase "an action of damages for....personal injuries or death of a person from personal injuries". An action for professional negligence against a solicitor such as the present placed the solicitor in the shoes of the pursuer's former employers against whom the claim was time-barred. It was open to the solicitor in such a case to plead contributory negligence as was done in Pearson v Imray. A schedule of valuation would be prepared as if the claim were directed against the former employers.

[9]     In my opinion, the present action is not one which falls within the class of actions which the new Chapter 43 is intended to cover. I observe at the outset that the new procedure is substituted for the procedural provisions which applied to actions of damages and were in large part contained in the old Chapter 43. Whatever may be the background to the claim which is put forward in this action, it is not suggested that it is "an action of damages for personal injuries...... or death of a person from personal injuries" for the purposes of Rule 43.1 (2). It was common ground that the action can only fall within the scope of the new Rules if it is covered by the words "or arising from" which appear within the definition of a personal injuries action in the new Rule. In the old Chapter 43 the provisions of Part 1 were concerned with intimation to connected persons in certain actions of damages were related to an action of damages "in which, following the death of any person from personal injuries", damages were claimed by an executor or a relative of the deceased. Part II of the old Chapter 43 was concerned with interim payments of damages. Rule 43.8 provided that Part II applied to "an action of damages for personal injuries or the death of a person from personal injuries" and "personal injuries" was defined in the same terms as it is in the new Rule 43.1(2). It was not suggested by counsel for the pursuer that provisions in the old Chapter 43 extended to actions such as the present. Rather the argument has to be that the words "or arising from" in the definition of personal injuries action in the new Rule 43.1 were included to enable the new procedure to apply to actions to which the provisions of the old Chapter 43 did not apply. Yet the most cursory comparison between the old provisions of Chapter 43 and the new provisions hardly supports this conclusion. I refer in particular to the terms of the old and new Rules not only relative to interim payment of damages but also to applications for further damages and to those Rules concerned with actions by connected persons. What is apparent is that the structure of the Chapter has been changed so that the ambit of the new Rules in Chapter 43 is found within Rule 43.1, as opposed to the Rules in Parts I and II of the old Chapter 43 already cited. However the definition of "relative" and the reference to the Damages (Scotland) Act 1976 and the definition of "connected person" and the reference to that person's title to sue "the defender" in respect of the personal injuries from which a deceased died or in respect of his death, remain unchanged in the new Chapter. The only difference is that the substance of the provisions in Part I of the old Chapter are to be found in new Rules 43.14 to 43.19, that is to say, after the ambit of the Chapter is set out in Rule 43.1. It is in those Rules that specific provision is made relative to an action for damages by an executor or a relative following the death of any person from personal injuries. Such actions are derivative in that they arise from the personal injuries sustained by a deceased. But an action of damages for personal injuries may also be raised by an executor of a person who sustained personal injuries but where death was not occasioned by those personal injuries - see section 2 of the Damages (Scotland) Act 1976 as amended. I consider that the words "or arising from" appear in the definition of "personal injuries action" in the new Rule 43.1 in order to make clear that the new Chapter applies to such actions. In such actions claims for damages would be based on the provisions of the Damages (Scotland) Act 1976 as amended or of the Administration of Justice Act 1982. In context, I consider that "the defender" referred to in Rule 43.1(2) can only mean the person alleged to have been responsible for causing the personal injuries or the death.

[10]     I am fortified in my conclusion by a further consideration. The definition of "personal injuries" in section 10(1) of the 1976 Act and in section 13(1) of the 1982 Act includes "injury resulting from defamation or any other verbal injury or other injury to reputation". But such injuries have no place in the definition of "personal injuries" in Rule 43.1(2). Accordingly, it is plain that an action for defamation or other injury to reputation, albeit it is an action of damages for personal injuries in a broad sense (though distinct from an action of damages for personal injuries in section 11 of the Court of Session Act 1988), does not fall within the ambit of Chapter 43. Indeed such is stated in the Practice Note No. 2 of 2003. If that be so, it becomes impossible to construe the reference to "the defender" in Rule 43.1 as other than to the individual party who is alleged to have been responsible for causing the personal injuries, in the sense of injuries to the person as narrowly defined by Rule 43.1(2), which are the subject of the action of damages. In particular, it cannot mean an individual party who, although not responsible in law for causing such injuries, is alleged to have allowed a valuable right based upon the existence, or possible existence, of a claim of negligence against another for causing such injuries, to be lost by the passage of time - see Mackenzie v Digby Brown & Co. As Lord Osborne pointed out in that case, in such an action the damages require to be assessed in relation to the value of the lost right to the pursuer, not simply upon the basis of the personal injuries sustained by him. I refer also to Kyle v P & J Stormonth Darling. The fact that it may be possible in such an action for professional negligence against a solicitor to plead contributory negligence against the pursuer in relation to the claim which lay behind the right said to have been lost, as was done in Pearson v Imray, only bears upon the value of the lost right as opposed to the question of any liability for professional negligence. Accordingly, I do not find that the terms of the new Rule 43.11 assist the submissions for the pursuer any more than Lord Osborne did in Mackenzie v Digby Brown & Co when considering the old Rule 89A(1) of the Rules of Court 1965, subsequently re-enacted as Rule 43.9 in the old Chapter 43 of the present Rules of Court.

[11]     In the result, I do not consider that the new Rules in Chapter 43 are intended to have any wider scope in relation to personal injuries actions than was the case under the Rules in the old Chapter 43. The new Rules do no more than introduce what might be termed a "fast track" procedure for actions of the same kind as were within the scope of the old Chapter 43, while providing for a cause falling within the scope of the new Rules to be withdrawn from that procedure and appointed to proceed as an ordinary action in the circumstances provided for in Rule 43.11. Differing from Lady Paton, who did not have the benefit of the fuller argument presented before me, I do not agree that the wording of the new Rules is significantly broader than the earlier Rules. In particular I do not agree that the present action does "arise from personal injuries" within the meaning of the new Rules or that the new Rules demonstrate any intention to embrace every action which could possibly qualify as a personal injuries action. Far from supporting a such a broad interpretation of the new Rules, the terms of the Practice Note No. 2 of 2003 point to an opposite conclusion. In ordinary parlance the present action can not be said to be concerned with personal injuries. When the new provisions are fully analysed, I consider that there is no warrant for suggesting that the scope of the new Rules extends beyond those actions of damages which had been subject to the provisions of the old Chapter 43. In my opinion, the present action is not one to which the procedure in Chapter 43 is applicable and appropriate.

[12]     Being of the foregoing opinion, in these circumstances I am satisfied that there are exceptional reasons justifying the granting of the defender's motion and the order sought. I shall appoint this cause to proceed as in ordinary action under paragraph 1 of Rule of Court 43.5.