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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 161
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A7/06
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OPINION OF LADY
SMITH
in the cause
COLIN FINDLETON
Pursuer;
against
QUARRIERS
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
McEachran, QC, Stirling; Drummond Miller, WS
Defender: 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 a 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.
[2] 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.
[3] Separately,
the defenders challenged the relevancy of one passage of averments, to which I
refer later in this opinion.
Further Procedure: Preliminary Proof or Not?
Submissions
for the Pursuer
[4] 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.
[5] 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. 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.
[6] 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 exemplied by Ablett
and this court should follow that example and allow a proof at large.
Submissions
for Defenders
[7] 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
[8] 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 in such circumstances,
have proceeded by way of preliminary proof, those are not the only circumstances
where such proofs have been allowed.
[9] 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 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.
[10] 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 sec.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."
[11] 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.
[12] 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.
[13] 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 third and fourth pleas in
law, the pleas directed to sections 17 and 19A of the 1973 Act.
Relevancy of "Apology" Averments
[14] Article 6 of Condescendence is in the following terms:
"In August 2002
a Petition was lodged with the Scottish Parliament calling on the Scottish
Parliament inter alia to urge the
Scottish Executive to conduct an inquiry into past institutional child abuse,
particularly for those children who were in the care of the state under the
supervision of religious orders. In
response to an invitation from the Public Petitions Committee to comment on the
Petition, the defenders stated that their position was that if any individual
suffered abuse in Quarriers Children's Home then they apologised."
[15] 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.
[16] 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.
[17] I am readily satisfied that the averments contained in article
6 of Condescendence 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.
