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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 158
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A766/04
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OPINION OF LADY
SMITH
in the cause
GEORGE KING
Pursuer;
against
QUARRIERS
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
McEachran, QC, Stirling; Drummond Miller, WS
First Defenders: Moynihan, QC,
Dunlop; Simpson & Marwick
10 October 2006
Preliminaries
[1] This
is one of a number of claims at the instance of an adult who, for a period
during his childhood, was resident in a home run by the defenders. He seeks damages in respect of physical
injuries sustained as a result of alleged assaults in the home and what is
referred to as a "delayed" post traumatic stress disorder allegedly caused by the
treatment he received there. The case
came before me on the procedure roll along with six other similar actions.
Introduction
[2] Limitation
is raised as an issue by the defenders. They plead that the action is time
barred under section 17 of the Prescription
and Limitation (Scotland)
Act 1973 ("the 1973 Act"). The
pursuer pleads that the action is not time barred but that if it is, the action
should be allowed to proceed nonetheless, under the equitable discretion
available in terms of section 19A of the 1973 Act.
[3] The
defenders' motion was for a preliminary proof on the issues that arose under
both section 17 and section 19A. The pursuer sought a proof before
answer, leaving all pleas standing.
[4] Separately,
the defenders challenged the relevancy of one passage of the pursuer's
averments.
Relevancy of "Apology" Averments
[5] In
Article 2 of Condescendence, at p.8A, the pursuer avers:
" In August 2002
a Petition was lodged with the Scottish Parliament calling on the Parliament inter
alia to urge the Scottish Executive to conduct an inquiry into past
institutional child abuse. In response
to an invitation from the Public Petitions Committee to comment on the
Petition, the defenders stated that if any individual suffered abuse in their
Home then they apologized."
Counsel for the defenders submitted
that these averments were irrelevant. They
did not amount to averments of an admission of liability. They did not amount to an admission that any
abuse took place. They referred to a
statement made that amounted to no more than the common courtesy of an apology
tendered on the basis of a hypothesis.
[6] Counsel
for the pursuer began, on this matter, by stating that it was appropriate for
the court to know that notwithstanding the conviction of the second defender in
a different litigation at the instance of a different pursuer regarding his
experiences at the home, these defenders did not accept that that abuse had
occurred. The averments regarding the apology were, against that background,
relevant. Nothing further was said in answer to the challenge to their
relevancy.
[7] I
am readily satisfied that the averments challenged are quite irrelevant. The pursuer's attempt to justify these
averments was not readily comprehensible. They do not amount to an admission of
liability. They do not amount to an
admission that anything happened to this pursuer whilst he was a resident in
the home. They do not, in short, advance
the pursuer's case at all and I have no difficulty in upholding the defenders'
submission and excluding them from probation. I will pronounce an interlocutor to that
effect, accordingly.
Further Procedure: Preliminary Proof or Not?
Submissions
for the Pursuer
[8] Issues
of time bar and section 19A normally arose where a solicitor had missed a
deadline, it was said. Such cases could
properly be dealt with by way of preliminary proof. There was unlikely to be an
overlap of evidence and the proofs were not likely to be lengthy. Further, preliminary proofs appeared to have
occurred because that was the procedure that parties had agreed. The present case was different.
[9] Reliance
was placed on the case management decision of Toulson J to allow the cases of William Ablett & Ors v Devon County Council & The Home Office unrepd
Ct Appeal 4.12.00 to go to trial without hiving off the
limitation issues that arose because he was not satisfied that to do so would
produce "better or cheaper justice" (para 8) since it would have been
necessary, at a preliminary trial, to go deep into the very issues which would
also form the subject matter of any trial on liability. Ablett, like the present case, concerned claims at the instance of
adults in respect of abuse alleged to have been suffered in a children's home
many years earlier.
[10] Reference was also made to: Thomson v Newey & Eyre & Ors 2005 SC 373,
a case involving a claim for economic loss and personal injuries arising out of
a sequestration where the Inner House decided to allow a proof before answer at
large because of the extent to which the facts bearing on time bar and the
facts bearing on the merits of the claim were intermingled. Noble v de Boer 2004 SC 548, a case where the
sheriff had allowed a preliminary proof
on issues as to the identity of the employer of the pursuer and the identity of
the employer of the defender. The Inner
House observed that the decision to allow that procedure was competent but, in
the circumstances of that case, unfortunate since it rendered a protracted and
expensive litigation more protracted and more expensive. As a generality, preliminary proof should, it
was said, only be allowed on matters wholly distinct from the merits of the
action. It was questionable whether a
preliminary proof should have been ordered. Particular reliance was placed on
this case, it being submitted that it contained a very strong statement against
allowing preliminary proof if there was going to be any intermingling of the
facts. McCafferty v McCabe 1898
4F 872, was a case where a workman claimed damages for injuries sustained at
work. He sought a jury trial. The defender denied having employed the
pursuer. The pursuer moved that the
issue of his employment be separated out and determined at a preliminary proof.
That motion was refused. The Lord President indicated that there was no
sufficient ground for separating out what was part of the train of facts for
the jury's consideration and Lord McLaren observed that the question of
employment was so involved in the merits of the case that it could not easily
be separated.
[11] It was submitted that in the present case and indeed, in all
seven cases before me, the merits and time bar issues were inextricably linked.
There would be duplication if the
pursuer was successful at preliminary proof. At that proof, there would need to be expert
evidence about his psychiatric injury to explain the delay. There would need to
be evidence about his whole life since leaving the home. The pursuer ought not to be required to give
evidence twice. The pursuers in these
actions were very damaged, vulnerable people and it would be grossly unfair to
force them to do so. As a practicality,
there were hundreds of similar cases pending in the Court of Session. If they
were not moved forward quickly, the court would be dealing with them for many
years. It was necessary to look at the "big picture". Whilst inevitably there were limitation
problems in these cases, it was within judicial knowledge that that was because
of the shame, fear, confusion and silence that was engendered by such abuse. The only answer for these cases having arisen
so late could be that their treatment silenced the claimants. The English courts had developed a way of
dealing with them, as exemplified by
Ablett and this court should follow that example and allow a proof at
large.
Submissions
for Defenders
[12] For the defenders, reference was made to the allowance of
preliminary proof being the normal practice. The defenders here were being asked to meet
claims, including the present one, arising some 30 or 40 years after the events
complained of. Preliminary proof was the appropriate way to ensure that the
pursuers were properly entitled to go forward. There would not be wholesale duplication of
evidence. The pursuers would not, at
preliminary proof, be cross examined as to their experiences in the home nor
would corroborating witnesses need to be led; the matter could be approached, for time bar
purposes, by assuming that whatever they said about what happened to them was
correct, leaving over to the later proof (if the pursuers were successful on
time bar) the question of whether or not they had proved those averments. A preliminary proof would be significantly
shorter. Conversely, a proof at large on
time bar, merits and quantum, would be of indeterminate length and scope.
Decision
on Further Procedure
[13] It is competent for preliminary proof to be granted in respect
of a specified plea. Whether or not to
do so is a matter of the exercise of a discretion. It is generally considered appropriate to do
so where evidence requires to be led in support of a preliminary plea in bar of
the action; for example a plea of time bar. It is often done where a pursuer seeks to have
the court exercise the equitable discretion allowed for by section 19A of
the 1973 Act; indeed, it would be very unusual to leave a section 19A plea
standing and allow a proof before answer.
That is so despite the fact that a section 19A proof will often
involve exploring matters which will also require to be explored at a
subsequent proof on the merits; the nature of a pursuer's injuries may, for
example, be responsible for a pursuer having delayed in seeking legal advice as
in the case of Comber v Greater Glasgow Health Board 1989 SLT
639. It is not correct to suggest, as did counsel
for the pursuers, that preliminary proofs on time bar are generally confined to
cases where solicitors have missed deadlines. Whilst there have been a number
of cases where applications under section 19A of the 1973 Act in such
circumstances, have proceeded by way of preliminary proof, those are not the
only circumstances where such proofs have been allowed.
[14] If a preliminary proof is allowed in this case, the issue of
whether what the pursuer alleges to have happened to him in the home actually
happened will not require to be determined. Nor will the issue of whether any
psychological or post traumatic stress disorder from which the pursuer suffers
was caused by anything that happened to him at that time. Nor will quantum.
I am satisfied that any preliminary
proof is likely to be significantly shorter than a proof at large. If the defenders are successful, the action
will go no further, unlike the situation in, for instance, the case of Noble, where the preliminary proof
allowed never had the potential to bring an end to the whole litigation.
[15] I bear in mind also the guidance given by the Inner House in
the case of Clark v
McLean 1994 SC 410, which was referred to by
counsel for the defenders in the course of general submissions that they made
regarding section 19A of the 1973 Act with regard to three of the seven
cases before me. At p.413, delivering
the opinion of the court, Lord Maclean said:
"The onus being
on the pursuer to satisfy the court that the terms of section 19A(1)
should be applied, the court must first determine whether the pursuer's case in
relation to the application of that section is relevant. If the case is
relevant, the court must consider whether or not there is sufficient agreement
between the parties on the material facts for it to decide upon the
applicability of the section. If there is not, then as was envisaged in Donald v Rutherford 1984 SLT 70 and given effect to in Comber v Greater Glasgow Health Board 1989 SLT 639, the court should allow a preliminary proof on these facts. If, on the other hand, there is sufficient
agreement on the material facts, then the court must proceed to adjudicate upon
the application of section 19A(1). In
our view, it should seldom be necessary for the court, in an action for damages
for personal injuries involving only two parties, to allow a proof with all
pleas standing, including those relating to time-bar and those relating to the
merits of the action."
[16] It would thus seem that the norm is not that a personal injury
claim involving only two parties will proceed to proof at large without any
time bar pleas first being considered at either a debate, in the event that all
material facts can be agreed, or at a preliminary proof. For such a case to do so would be the
exception and there would, accordingly, have to be something unusual or special
about its circumstances to justify such a procedure.
[17] In essence, the pursuer's case seems to be that this case is
unusual and should be seen as justifying an unusual approach because the pursuer
seeks to claim in respect of having been abused as a child and because there
are so many similar litigations waiting in the wings. It does not seem to me that these cases
should be regarded as being in a separate category which, for what essentially
were put forward as reasons of sympathy, should be allowed to go straight
through to a proof at large. It is not,
I consider, within judicial knowledge that the limitation problems that arise
are for the reasons given by counsel for the pursuers. Each case requires to be considered on its own
facts and circumstances and a view reached as to the reason for the delay that
has occurred. I do not see that it would
be fair or just to assume that the delay has occurred because of shame, fear
and confusion that has arisen because of the nature of the claim. But even if that was so, I do not see that
that should result in the normal preliminary proof procedure being departed
from.
[18] I will, accordingly refuse the pursuer's motion for a proof
before answer leaving all pleas standing and allow a preliminary proof in
respect of the defenders' first and the pursuer's fourth and fifth pleas in
law, the pleas directed to sections 17 and 19A of the 1973 Act.
