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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 117
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A688/02
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OPINION OF LORD UIST
in the cause
JAMES MORRIS (AP)
Pursuer
against
FIFE
COUNCIL
Defenders
ญญญญญญญญญญญญญญญญญ________________
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Pursuer: A. Smith Q.C., Stirling; Drummond
Miller WS
Defenders: Maguire Q.C., Duncan; Simpson & Marwick WS
28 July 2006
Introduction
[1] In
this action the pursuer, who was born on 18 September 1952, seeks damages from
the defenders for a course of sexual and physical abuse to which he was
subjected between the ages of about seven and fifteen years by a now deceased
member of staff named David Murphy in a residential home run by their statutory
predecessors. For the purposes of the
action the defenders admit that they are liable to make reasonable reparation
to the pursuer for the loss, injury and damage he sustained as a result of
Murphy's acts. On 25 June 2003 a procedure roll debate took place before Lord Abernethy. The debate related to the question whether
special cause existed for withholding the action from trial by jury. In an opinion dated 4
July 2003 Lord Abernethy held that special cause did exist for withholding the
action from trial by jury and allowed a proof before answer. That decision was reclaimed and, after a
hearing on the Summar Roll on 8 October 2004, an Extra Division on 22 October
2004
adhered to Lord Abernethy's interlocutor and refused the reclaiming
motion. A diet of proof before answer
has been fixed for 26 September 2006.
[2] In the
course of the procedure roll debate before Lord Abernethy senior counsel for
the pursuer, in an attempt to secure trial by jury, sought and was granted
leave to amend the Closed Record in terms of two minutes of amendment,
numbers 16 and 18 of process respectively.
The effect of the amendments was, first, to delete the allegations of
abuse made against another member of staff, Tom Smith, and, secondly, to delete
the then condescendence 6 and substitute a new condescendence 6. The terms of condescendence 6 before the
amendment were as follows:
"The pursuer has suffered
loss, injury and damage as a result of the actions of Murphy and Smith. In addition to the pain, discomfort and
humiliation of the abuse at the time it happened, the pursuer's whole life has
been ruined by the effects of that abuse. Although he married and had children, his
relationship with his wife broke down on account of his difficulty in relating
to others. He suffered confusion about
his sexuality and a lack of trust in others. He has been tormented by the thoughts of what
occurred. The sum sued for is a
reasonable estimate of the pursuer's loss, injury and damage."
The terms of condescendence 6 after the amendment were
as follows:
"The pursuer has suffered
loss, injury and damage as a result of the actions of Murphy. He suffered pain, discomfort and humiliation
at the assaults during the period stated in article 3 of condescendence. He was ashamed and confused about why he was
being assaulted by Murphy."
The period stated in article 3 of condescendence was
the period during which the pursuer was aged between seven and fifteen, that
is, the period between 18 September 1959 and 18 September 1967. The effect of
the amendment to condescendence 6 was therefore to delete the claim for any
ongoing loss after the period during which the abuse took place, to which I
shall refer as "the claim for psychiatric injury". In narrowing the scope of his claim for loss
the pursuer was, as Miss Maguire, senior counsel for the defenders, put it in
the debate before Lord Abernethy, "resorting to an artificial situation in an
attempt to have the case tried by jury".
[3] On 29 June 2006 a motion on behalf of the pursuer to allow the minute
of amendment for the pursuer number 26 of process to be received and to allow
the defenders to lodge answers within 14 days called before me. That motion was strongly opposed by Miss
Maguire on behalf of the defenders. When
the motion called, Mr Smith for the pursuer intimated that he was not insisting
on paragraphs 2(b) and 3 of the minute of amendment, which sought to
restore the claim against Smith. The
opposition to the motion thereafter centred on the averments which the pursuer
sought, by way of paragraphs 4, 5 and 6 of his minute of amendment, to add at
the end of condescendence 5 and to insert as a
new condescendence 6, re-numbering the existing condescendence 6.
[4] The
averments which the pursuer seeks to add at the end of condescendence 5 are as
follows:
"His nose and teeth were
broken by Murphy. He was nervous and
suffered faecal incontinence. He
required to be admitted to the Victoria Hospital, Kirkcaldy for several
weeks as an inpatient as a result of stomach troubles. He also required to attend Dr Haldane, Psychiatrist, at the Child Guidance Clinic, Methil. The
pursuer's whole life has been ruined by the effects of the abuse. Although he
married and had children, his relationship with his wife broke down on account
of his difficulty in relating to others. He suffered confusion about his sexuality and
a lack of trust in others. He has been
tormented by the thoughts of what occurred. In the mid 1990s the pursuer required
counselling from the Liverpool Psychotherapy and Consultation Service, Mossley House, Mossley Hill Hospital, Park Avenue, Liverpool L18 8BU as a result of the abuse. He was referred for further counselling in
about 2003 to the Psychology Department, St Catherine's Hospital, Birkenhead. The pursuer's GP is Dr Shah, Whetstone Medical
Centre, 44 Whetstone Lane, Birkenhead CH41 2TF. The sum sued for is a reasonable estimate of
the pursuer's loss, injury and damage. The
defenders' averments in answer are denied."
[5] The
averments which the pursuer seeks to insert as a new condescendence 6 are as
follows:
"Whilst the pursuer was
resident in the home he attended state schools run by the defenders'
predecessors. The pursuer regularly
attended school with visible bruising. He
suffered faecal incontinence and was sent home having soiled himself from time
to time. It was clear to staff in the
school that the pursuer was unhappy in the home. The pursuer's foster mother Miss Sandeman was sufficiently worried about the pursuer's
treatment in the home to discuss matters with Miss J L Walker, his Child Care
Officer. Such matters included the
pursuer's distress about returning to the home and his threats to commit
suicide. By letter dated 18 October 1960 Miss Sandeman wrote to a
Miss Beddie expressing her concern that she had heard
nothing about the pursuer for several months despite having contacted the home
and sent a birthday present. She also
referred to the pursuer being 'miserable'. She asked Miss Beddie
to come and see her. In 1962 the pursuer
told a child care worker that he was worried about something but that he was
afraid to discuss it with the defenders (sic)
or Dr Haldane. The pursuer complained about the abuse at the
time to a carer, Tom Smith, an employee of the defenders' predecessors about
the abuse (sic). In December 1970, after the pursuer had moved
to London, he reported the abuse to Miss Walker, who was then
Assistant Director of Social Work, in a three page letter. Miss Walker did not believe the pursuer and
told him that he should not make the allegations. The pursuer was dissuaded from making the
complaints by her (sic). The pursuer eventually felt able to report the
abuse to the police in about 1999, who investigated the allegations (sic). Murphy pled guilty to a number of charges
against a number of children in the home. Said charges included sodomy of a number of
young children over a twenty five year period. He was sentenced to 15 years' imprisonment. The pursuer, having complained about the abuse
to persons for whom the defenders are responsible, seeks interest at the full
judicial rate from 18 September 1959 until payment."
[6] The
question which arises for decision is whether the minute of amendment no 26
of process containing the proposed amendments in paragraphs 4, 5 and 6 should
be allowed to be received. Although Mr
Smith for the pursuer submitted that, as the motion is only for the minute of
amendment to be received and for answers within 14 days, the opposition
was premature, I think, in agreement with Miss Maguire for the defenders, that it
would be a waste of time and expense for the defenders to have to make
investigations to answer the minute of amendment and then have to come back to
court to make submissions on whether the amendment should be allowed. I therefore consider that in practical terms
the issue for me to decide now is whether the amendments proposed by the
pursuer in paragraphs 4, 5 and 6 of his minute of amendment no 26 of process
should be allowed to be made.
The applicable
law
[7] Rule
of Court 24.1(1) and (2)(c), so far as relevant, provides as follows:
"(1) In any cause the court may, at any time before
final judgment, allow an amendment mentioned in paragraph (2).
(2) Paragraph (1) applies to the following
amendments -
(c) an amendment of a condescendence ... which
may be necessary for determining the real question in controversy between the
parties."
[8] In Brown's Trs v Hay (1894) 24R 1108 Lord McLaren, dealing with the then power of amendment under the
Court of Session Act, said at page 1111:
"I will only add that I
think there are strong reasons for considering that the power of amendment
given to the Judge, or the Court under the Court of Session Act, is - I will
not say a discretionary power - but a power to be exercised according to the
personal judgement of the Judge or Court before whom the question may arise."
[9] In Thomson v Glasgow Corporation 1962 SC (HL) 36, Lord Justice-Clerk Thomson,
dealing with a motion to amend made in the Inner House, said at pages 51 and
52-3:
"It is undoubted that we have
a discretion whether to grant or refuse amendment. We must be satisfied that it is necessary for
determining the real question in controversy, but that is not decisive of the
propriety of the amendment. Whether it
is to be allowed or not must depend on whether, in view of our function as
Judges in the litigation, it is in the interests of justice that we do so ...
In my view, therefore, when
the expediency of allowing an amendment comes up for consideration we have to
consider, in light of the structure within which our system works and in light
of the whole history of the case to date, whether allowance will operate to
give the amender an unfair advantage over his opponent. On the theory of our procedure, the closing of
the record is still a crucial step as it marks the borderline between pleading
and proof. After that, procedure by
amendment operates, and presumably and generally operates to the prejudice of
the other party; but however the situation would have been viewed before 1868,
that prejudice is not now regarded as unfair, as the other party is regarded as
compensated by an award of expenses. Amendment
is, in theory, a belated adjustment for which the laggard has to pay. Where the amendment is made before there has
been inquiry into the facts there is no difficulty. A party can on terms restate his case, aver
further and even different facts, add new and different grounds of action and
so forth. This is all regarded as
further adjustment on terms."
[10] Even
where the proposed amendment seeks to introduce a new ground of action after
the expiry of a limitation period, the question whether the proposed amendment
should be allowed is not one of the competency of the amendment but one to be
determined by the court in the exercise of its discretion: see Hynd v
West Fife Co-operative Ltd 1986 SLT 41 at page 42 and Sellars v IMI Yorkshire Imperial Ltd
1986 SLT 629.
Submissions
for the pursuer
[11] Mr
Smith referred to the procedural history of the case and pointed out that the
pursuer was being put to his proof and that no issue of time bar was raised by
the defenders. He accepted that at the
procedure roll debate he took out the averments of the claim for psychiatric
injury in the original condescendence 6 in an attempt to secure a jury trial and
that he was now seeking to reinsert averments of psychiatric injury. He pointed out that at the procedure roll
debate Lord Abernethy had simply allowed the averments about psychiatric injury
to be deleted at the pursuer's own instance: he had not adjudicated upon the
relevancy of those averments and decided after submissions that they should be
deleted. If it were to be suggested by
the defenders that the reinsertion of averments of psychiatric injury amounted
to an abuse of process (as they stated in their written opposition to the
motion), he submitted that it was miles away from abuse of process. The issue of the pursuer's ongoing psychiatric
difficulties was still referred to by the defenders in answer 5. The defenders had obtained their own psychiatric
report on the pursuer, but its terms had never been disclosed to the pursuer's
solicitors. At the procedure roll debate
it had been submitted on behalf of the defenders that it was inevitable that
the pursuer would suffer psychiatric sequelae. There was nothing incompetent or unfair about
the amendment which the pursuer now sought to make.
Submissions
for the defenders
[12] Miss
Maguire began her submission by stating that the action related to events which
happened about 40 or more years ago, that it had been raised in 2002 and that
the record had closed in September 2002. (According to the process the record closed on
17 July 2002.) Before the
procedure roll debate the defenders had produced a Note of Argument dealing
with the averments against Smith and the lack of specification of the
psychiatric injuries. The pursuer sought
to deal with the criticism of his pleadings by producing at the debate the two
minutes of amendment nos 16 and 18 of process, which
made the amendments I have set out above. The effect of those amendments was to delete
the case based on abuse by Smith and all reference to the pursuer's whole life
being ruined. Lord Abernethy had
exercised his discretion by allowing the pursuer to make the amendments set out
in the minutes of amendment nos 16 and 18 of process.
Notwithstanding those amendments, on 4 July 2003 Lord Abernethy allowed a proof before answer on the
new pleadings. The pursuer thereafter
reclaimed Lord Abernethy's decision of 4 July 2003 and did not seek at any
stage in the Inner House to amend the pleadings to include a claim for
psychiatric injury. It was then accepted
by the pursuer's counsel that it was a very unusual situation as there was no
claim for anything after the pursuer reached the age of 15. The Inner House held that Lord Abernethy had
not erred in refusing a jury trial and a diet of proof before answer was
thereafter fixed. The pursuer was now
seeking, three years after the decision by Lord Abernethy, to reinsert his
claim for psychiatric injury. The
averments in question had been attacked at the procedure roll debate and he had
decided to delete them. If the proposed
amendment were now allowed the defenders would be put back in the position they
were in at the outset of the procedure roll debate on 25 June 2003. When the
averments about psychiatric injury were deleted by the pursuer the defenders
abandoned their preparation for resisting a claim for psychiatric injury. The court had not been provided with any
explanation on behalf of the pursuer for the proposed reinsertion of those
averments. The pursuer was now wishing
to change everything again only a few months before the proof. If I were to allow the proposed amendment, I
would, in effect, be reviewing Lord Abernethy's interlocutor of 25 June 2003. It would be
incompetent to do that, but in any event I should exercise my discretion to
refuse the proposed amendment. As Lord
Abernethy had sanctioned the deletion of the averments about psychiatric injury,
I could not now sanction their reinsertion. Interlocutors were protected whether or not
they had followed upon arguments presented to the court. Lord Abernethy had been satisfied that the
amendments made by the pursuer on 25 June 2003 were necessary in order to
determine the real issue in controversy between the parties. In Campbell
v James Walker Insulation Ltd
1988 SLT 263, a case dealing with the powers of the court under the Rules of
Court to correct or alter a previous interlocutor, Lord Justice-Clerk Ross
stated at page 264D-F that the general principle was that the substance of an
interlocutor cannot be altered once the interlocutor has been signed and
issued, but that errors of expression could be corrected or altered under the
power conferred on the court by the relevant Rule of Court. Here the pursuer had been prepared to
sacrifice his averments about psychiatric injury in an attempt to obtain a jury
trial and was now seeking to put himself in the situation he would have been in
had he accepted a proof before answer on his original averments. The pursuer had to accept the consequences of
the deletions he made by amendment on 25 June 2003 and he could not now go
back on those deletions. The issue was one of competency.
[13] What
had been said on competency applied also in relation to my exercising my
discretion in deciding whether to allow the proposed amendment. In addition, so far as the exercise of
discretion was concerned, the facts had been known to the pursuer in June 2003
and there was no justification for the pursuer waiting until now to make the
averments of psychiatric injury. Mr
Murphy was deceased and his conviction did not include crimes against the
pursuer. It would be prejudicial to the
defenders now to have to investigate this new head of claim because they were
liable for the acts of Murphy as a result of the decision of the House of Lords
on vicarious liability in Lister v Hesley Hall Ltd [2001] UKHL 22. The diet of proof before answer
on the existing pleadings had been fixed in January 2005 and if the proposed
amendment were allowed the defenders would be placed in a very difficult
position as they would have to prepare during the vacation to answer the claim
for psychiatric injury. It was too late
to introduce averments of that nature at this stage. I was urged not to condone this type of
conduct in a litigation. The defenders should not in June 2006 find
themselves facing the same averments as were deleted by the pursuer in June
2003.
Response for
the pursuer
[14] Mr
Smith responded that the question whether the proposed amendment should be
allowed was not one of competency. It
was accepted that once a Lord Ordinary had adjudicated on an issue, another
Lord Ordinary could not interfere with his decision. There was nothing incompetent in reinserting
averments which had been deleted in an unsuccessful attempt to obtain a jury
trial. If, for example, averments of
pension loss were deleted in an attempt to obtain a jury trial, there was no
reason why they could not be reinserted by later amendment after refusal of a
jury trial. There was a difference
between a judge adjudicating on something on the one hand and permitting one of
the parties to do something on the other hand.
[15] Discretion
was a very different question. In the
heyday of jury trials it was common to take averments out in an attempt to
obtain a jury trial, and if that failed, to put them back in. It was now being suggested on behalf of the
defenders that the proposed amendment came too late, but the defenders
themselves had extensive averments in answer 5 on the subject of the pursuer's
psychiatric injury. Three months
remained before the proof.
Discussion
(i)
Competency of the proposed amendments
[16] I do
not consider the amendments proposed by the pursuer in paragraphs 4, 5 and 6 of
his minute of amendment no 26 of process, which I have set out above, to be
incompetent. It seems to me that what
Miss Maguire's submission amounted to was an assertion that a party who deleted
certain averments by way of amendment was forever barred from reinserting those
averments or inserting similar averments by way of a later amendment. She did not cite any authority to the effect
that it was incompetent for a party to reinsert averments previously deleted by
him and I reject her submission that such a course of action is incompetent. It is not unknown for averments to be deleted
at adjustment and later reinserted, and, as Lord Justice-Clerk Thomson pointed
out in Thomson v Glasgow Corporation (supra) at page 52, "amendment is, in theory,
a belated adjustment for which the laggard has to pay". I can therefore see no objection in principle
to amending to reinsert averments deleted by an earlier amendment. Moreover, it is difficult to think of any
proposed amendment nowadays the grant or refusal of which falls to be
determined as a matter of competency.
Rule of Court 24.1(1) and (2)(c) empowers the court to allow an
amendment to a condescendence at any time before final judgment. There is nothing in the Rule, and I was
referred to nothing in any of the decided cases, which indicates that a
particular type of amendment to a condescendence is incompetent.
[17] Further,
I reject Miss Maguire's submission that if I were to allow the proposed
amendment I would in effect be reviewing or altering Lord Abernethy's
interlocutor of 25 June 2003. I do not consider that I would be doing any
such thing. In my opinion, the decision in the case of Campbell v James Walker
Insulation Ltd, to which Miss Maguire referred, has no bearing on the
situation in this case. Lord Abernethy
did not delete the averments about psychiatric injury on the ground that they
were irrelevant. I accept that, had he
done that, it would not be open to me to allow the pursuer now to amend by
reinserting the averments which Lord Abernethy deleted or by inserting
similar averments, for the effect of that would be that I would be reversing
the decision of another Lord Ordinary on the relevancy of certain averments and
only the Inner House has the power to do that. All that Lord Abernethy did on 25 June 2003 was to allow the pursuer to amend his pleadings by
deleting the averments about psychiatric injury. In my opinion, Mr Smith was correct in his
submission that there is nothing incompetent in reinserting averments which had
been deleted in an unsuccessful attempt to obtain a jury trial.
(ii) Exercise of discretion
[18] In my
opinion, the question whether the proposed amendment should be allowed is one
which falls to be answered by my exercising my discretion on the matter. Before I can allow the amendment, I have to
be satisfied that it is in the interests of justice to do so (Lord
Justice-Clerk Thomson in Thomson v Glasgow Corporation, supra at page 51).
I have reached the conclusion that I
should exercise my discretion to allow the amendment for the following reasons.
First, it was perfectly clear to the
defenders on 25 June 2003 why the averments about
psychiatric injury were deleted. As I
have already mentioned, Miss Maguire was recorded by Lord Abernethy in
paragraph 6 of his opinion as having stated that by making the deletions the
pursuer was "resorting to an artificial situation as a device to have the case
tried by jury." There was therefore no
question, and it was never suggested, that at the time the deletions were made
the defenders were misled or under any misapprehension about the reason why
they were made. No undertaking was given
by the pursuer that, in the event that he did not secure a jury trial, he would
not seek to reinsert the averments which he was then deleting. Secondly, I do not consider that the defenders
would suffer any material prejudice by now having to answer substantially the
same case as they had to answer at the outset of the procedure roll debate on 25 June 2003. Miss Maguire
submitted that the fact that, if the proposed amendment were now allowed, the
defenders would be back in the position they were in at the outset of the
procedure roll debate was a reason for refusing to allow the proposed
amendment, but I do not accept this submission. If the pursuer had on 25 June 2003 agreed to a proof before answer without making any
deletions the defenders would now find themselves in the same position as they
would be if the proposed amendment were to be allowed, that is, having to deal
with the claim for psychiatric injury by the pursuer. All that has happened is that the pursuer has
ended up with a proof before answer by a circuitous route as a result of having
unsuccessfully proceeded to debate at procedure roll and then unsuccessfully
reclaimed against the adverse decision of the Lord Ordinary. Thirdly, I consider that if the proposed
amendment were to be refused the pursuer would suffer material prejudice. His claim is for sexual and physical abuse
committed against him many years ago. Lord
Abernethy in paragraph 8 of his opinion records Miss Maguire as having stated
on behalf of the defenders that "in the present case it was implicit by the
very nature of the assaults that there must have been psychological
consequences". The psychiatric injury
for which the pursuer now seeks to claim once again is therefore one which the
defenders recognise as being implicit in the very nature of the assaults to
which he was subjected. I do not see
why, having failed to secure a jury trial, he should now be deprived of the
right to claim for psychiatric injury at a proof before answer. Fourthly, I do not think it is too late to
allow the proposed amendment now to be made. The claim for psychiatric injury cannot be
regarded as a novel or surprising one as it was averred in the pleadings up
till 25 June 2003. I note that
Miss Maguire did not demur from the statement made by Mr Smith in
submissions that the defenders had previously obtained their own psychiatric
report on the pursuer. It would therefore appear that the defenders are already
in possession of material evidence to enable them to deal with the pursuer's
claim for psychiatric injury. In my view
there is sufficient time between now and the proof date for the defenders to
prepare to deal with the pursuer's claim for psychiatric injury, but if that
should turn out not to be the case then it will be open to the defenders to
move to have the diet of proof before answer discharged. In view of the procedural history of this case
and the fact that it relates to events which happened more than 40 years ago, I
would hope that a discharge of the forthcoming diet of proof before answer is
something that can be avoided.
[19] For the
sake of completeness I should record that no submission was made on behalf of the
defenders that the proposed amendment in the new condescendence 6 to insert a
claim for interest at the full judicial rate from 18 September 1959 should be
refused (even though the appropriate amendment to the conclusion is not also
proposed).
Decision
[20] Mr
Smith having departed from paragraphs 2(b) and 3 of the minute of amendment no
26 of process, I shall, for the reasons given above, exercise my discretion by
allowing the minute of amendment to be received under deletion of those
paragraphs and order the defenders to lodge answers, if so advised, within
14 days.
