OUTER HOUSE, COURT OF SESSION [2008] CSOH 33 |
|
A300/01 |
OPINION OF LORD MENZIES in the cause KENNETH HARRISON Pursuer; against (FIRST) WEST OF Defenders: ________________ |
Parties Participating at the Hearing
Pursuer:
D
First Defenders:
Non-participating Party: McGrigor Donald for Second Defenders
[2] The
history of the action is a long one, but it has an important bearing on the
arguments which were addressed to me at procedure roll debate in January
2008. A claim for damages on behalf of
the pursuer was first intimated to the West of Scotland Kart Club on
[3] The action came before the Lord Ordinary in July and August 2000, on the defenders' pleas to relevancy and specification. One of the arguments for the first defenders at debate was that a club could not be liable in delict to a club member and in particular (a) since a club was an unincorporated association, with no legal personality, a member could not sue the club or any other members as representatives of the club, since to do so would be to sue himself; (b) members of a club incur no greater liability simply by being an office bearer; (c) the constitution of a club may allocate responsibility to certain individuals who may then be liable to fellow members in contract or delict, and (d) membership of a club does not provide immunity from being sued by other members for liability which arises independently from membership, but the club cannot be vicariously liable for such liability and the defender in such circumstances would be sued as an individual. The Lord Ordinary held inter alia that the pursuer had pled a sufficiently relevant case against the five named persons as individuals, that the duty of care arose not because the five were office bearers but because of their knowledge and their de facto assumption of the responsibility for taking decisions relating to the safety of the circuit, that there were no relevant averments of fault directed against any club member other than the five, and accordingly the pursuer's averments did not make out a relevant case of fault against the five as representing the club, and that a decree against the first defender would mean that each club member, including the pursuer, would become primarily liable on a joint and several basis, resulting in the pursuer being primarily liable for the wrong for which he sued, contrary to the fundamental principle that a pursuer could not recover damages in respect of his own delict. Other issues were raised at that time, but they are not directly relevant to the arguments before me. The Lord Ordinary's Interlocutor dated 14 November 2000 inter alia dismissed the action so far as directed against (1) the West of Scotland Kart Club and (2) Alfred Murie, Chris Baillie, Bill McDonald, Roseabel Carter and Ina Nelson as representing the said club, and allowed the pursuer, the now first defenders the said Alfred Murie, Chris Baillie, Bill McDonald, Roseabel Carter and Ina Nelson as individuals and the second defenders a Proof before Answer of their respective averments on record. Her Opinion was reported at 2001 SC 367.
[4] The
pursuer reclaimed and the second defenders cross-appealed. The pursuer's argument was that he could
convene his own club as defenders, basing the argument on the Occupiers
Liability (
[5] It
was noted at a By Order hearing on
"The Lords, having heard Counsel for the parties, the case having called By Order, and on the motion of the pursuer made at the Bar, there being no opposition thereto in respect that parties are agreed (1) that the time bar plea contained in each of the answers hereinafter referred to will in due course be remitted to the Outer House, and (2) that counsel for the first named defenders will in the course of the Summar Roll diet set down for 17 February 2004 and the three following days make no submissions on behalf of the additional first defenders referred to in the Minute of Amendment hereinafter referred to, allow the Closed Record to be opened up and amended in terms of the Minute of Amendment and Answers, Nos. 36, 41 and 42 of process, all as adjusted, and this having been done, of new closes the Record...."
[6] The
reclaiming motion was heard by the First Division on
[7] The First Division held that the Lord Ordinary was correct to dismiss the action against the club "including its office bearers and the other members of the committee. It is not in dispute that enquiry should be allowed to the pursuer's case directed against the five named persons as individuals." (see paragraph [1] of the Lord President's Opinion). The Opinions of the First Division are reported at 2004 SC 615.
[8] It
was noted on the interlocutor of
Submissions by junior counsel for the first defenders
[9] Counsel pointed out that
the issue of time bar was expressly reserved by the First Division in their
interlocutor of
[10] Counsel referred me to Johnston
on Prescription and Limitation at paragraphs 5.09 and 10.74, which stated
that in terms of section 17(2) of the Prescription and Limitation
(Scotland) Act 1973 (as amended) the action has to be commenced within a period
of three years after the date ascertained according to the provisions of the
section, and that an action commences on the date of citation of the
defender. In relation to these
additional individuals this must mean after December 2001. I was referred to Boslem v
"Further, our reports contain many decisions showing that the Court will not in general allow a pursuer by amendment to substitute the right defender for the wrong defender, or to cure a radical incompetence in his action, or to change the basis of his case if he seeks to make such amendments only after the expiry of a time limit which would have prevented him at that stage from raising proceedings afresh."
That is what the pursuer seeks to
do in the present action - unlike Pompa's
Trustees, he is not merely seeking to substitute the correct
representatives for the wrong ones, but to introduce liability against 16 new
individuals. This was not an example of
correcting the defenders' designation, as was the subject of consideration in
the reclaiming motion by the Gray Aitken
Partnership & Others (unreported) [2006] CSIH 4. If one looked at the original pleadings in
the present action there was no question that the pleader intended to blame the
16 individuals added by the Minute of Amendment for their individual
fault. This was therefore a clear
example of a pursuer seeking to introduce new defenders outwith the triennium,
contrary to the provisions of section 17(2) of the Prescription and
Limitation (
[11] Counsel turned to consider the court's power to override the
time limit provided for in section 17(2), contained in section 19A of
the 1973 Act (as amended). He referred
me to the Scottish Law Commission Report No 207, published in December
2007, and to the review of the current legal position at
paragraphs 3.9-3.14 of that report.
(See in particular B v
(a) No attempt was made to bring the new 16 individuals into this action until almost seven years after the accident, and there was no explanation for this delay. This factor weighed heavily against the pursuer.
(b) There was nothing in the pleadings to explain the delay.
(c) With regard to the effect that the passage of time has had on the defenders' ability to defend the action and generally on the availability and quality of evidence, 13 years had already passed since the accident. It was likely that at least one further year would elapse until a proof. This will inevitably impact on the recollections of what was said at meetings, particularly with regard to individuals who appeared to have had no (or little) involvement.
(d) With regard to the conduct of the pursuer and in particular how expeditious he was in seeking legal or other expert advice and intimating a claim for damages to the defenders, there was nothing by way of explanation or justification in the pleadings, either with regard to the period between the accident in February 1995 and service of the summons in February 1998, or with regard to the period between February 1998 and service of the Minute of Amendment in about January 2002.
(e) There was nothing to suggest that any legal or other advice may have contributed to the delay.
(f) There was nothing in the pleadings to suggest that any of the defenders (whether the original five or the new 16) had contributed to the delay by their bad conduct.
(g) As already indicated, the pursuer clearly has an alternative remedy against the existing five individual defenders. Moreover, although he avers that he has no remedy against his legal advisers, he does not aver why this is so. Counsel accepted that it was open to the pursuer to supplement his averments by ex parte statements at the bar. Finally, with regard to any other relevant matter, the strength (or otherwise) of the pursuer's claim against the new 16 defenders was a relevant factor. It was clear from the Opinion of the First Division that the pursuer's case based on occupiers liability was doomed to failure. The case against the new defenders must be weaker (or in any event could not be stronger) than the case against the existing five defenders, and this was particularly so for those individuals who only became members of the committee in 1995. It was impossible to conceive of circumstances whereby the new defenders might be liable but the original five named individuals were not liable.
Submissions for the pursuer
[13] Senior counsel for the
pursuer moved me to repel the first plea-in-law for the first defenders and to
allow a Proof before Answer with all remaining pleas left outstanding. He submitted that it was not a correct
categorisation of the circumstances of this case that "new" defenders were
brought in in 2002. All the defenders
were members of the club, and were properly convened as defenders when the
summons was served on the club and five members as representing it in
1998. Although it was correct that none
of the 16 individuals were named as defenders when the action was raised,
neither was the pursuer himself - yet the effect of the Lord Ordinary's
interlocutor, affirmed by the First Division, was that the pursuer was found to
be suing himself. It must therefore
follow that when the summons was served on the office bearers, it was
effectively served on all members of the club.
[14] Counsel suggested that the defenders were trying to have their cake and eat it. As the Lord Ordinary observed at paragraph [31] of her Opinion,
".... by suing the 'West of Scotland Kart Club' the pursuer is in effect suing himself. While it is permitted to use a descriptive club name in the instance of a writ (see Renton FC v McDowall, Bridge v South Portland Street Synagogue, and the Sheriff Court Ordinary Cause Rules), to do so is no more than a useful procedural device or shorthand method of referring to everyone who was a member of the club at the relevant time".
It follows that service of the original summons on the club amounted to service on all the individual members, including the "new" 16 defenders. Service of the summons therefore interrupted the running of the limitation period against these defenders. In answer to a question from the court as to whether one could interrupt the running of time by a misconceived writ, senior counsel replied that only if the writ was radically incompetent or a nullity would it not interrupt the limitation period. The pursuer could therefore raise an action against any of the members of the club at any time after dismissal of his action against the club itself, because limitation was distinct from prescription, and one only needed to raise an action in order to stop the running of the limitation period.
[15] Senior counsel referred me to Lord Marnoch's Opinion when this case was before the First Division, particularly at paragraph 25. By suing the club, the pursuer sued all its members as primary obligants. Each of the members was sued only in one capacity, ie as individuals who are members of a club - they were not being sued in a special capacity such as trustees, executors or representatives. When asked what the purpose of the Minute of Amendment was if all members of the club had already been convened as defenders, senior counsel replied "for safety's sake". When asked why the First Division discharged the Summar Roll fixed for February 2002 (with the result that it did not take place until February 2004), apparently because service of the Minute of Amendment had not been effected on all the "new" defenders, senior counsel suggested that the argument that he was now advancing may not have been clearly focussed at that time, but in any event, if there was a procedural mishap at that time, it cannot override the provisions of the substantive law. If the Opinions of the Lord Ordinary and the First Division were correct, it follows that all the individuals now designed in the instance were properly convened as defenders when the action was served on the club in February 1998.
[16] Senior counsel referred me to Thomas Menzies (Builders) Ltd v Anderson & Menzies 1998 SLT 794. This was a case involving interruption of the prescriptive period rather than limitation of actions. It was concerned with the meaning of "proceedings" for the purpose of sections 4(2)(a), 6 and 9 of the 1973 Act. However, it was instructive in showing that, in that context, the court would have regard to earlier proceedings which were procedurally flawed but were not so radically or fundamentally defective as to deprive them of the status of "proceedings". In the present case, senior counsel submitted that there was no attempt to set up an entirely new legal basis for the claim (which he accepted would be likely to fall foul of the rule in Pompa's Trustees); all that was sought to be done in the original Minute of Amendment was to make more pointed averments about the involvement of Bill Hay, Ann Davidson, Richard Murray and the other individuals who had not been previously named.
[17] Turning to the equitable discretion of the court in terms of section 19A of the Act, senior counsel pointed out that all the "new" individuals mentioned in the Minute of Amendment were represented by the same solicitors and same counsel as the individuals who had been named since the summons was served. There was nothing to suggest that the information gathered on behalf of the originally named five individuals would not be available to the remaining 16 individuals. There was therefore no prejudice to them as a result of their being named in the action, albeit some years after the expiry of the triennium, because presumably all preparatory work had been done on their behalf as well. The point was made on behalf of the defenders that the pursuer had all necessary relevant knowledge of the workings of the club as he was himself a member - but the same point applies to all of these named individuals. Indeed, not only were they members of the club, they were members of the Committee, so in a better position than the pursuer himself to know the true position. It was therefore artificial to suggest that there was any prejudice to those individuals referred to in the Minute of Amendment.
[18] Turning to the various factors listed in paragraph 3.36 of the Scottish Law Commission Report No 207, senior counsel responded as follows:-
With regard to (a) and (b), while it was correct that almost seven years elapsed between the accident and service of the Minute of Amendment, this was a complex case which involved the solicitors in much work obtaining expert reports, and it was difficult to establish who were the correct defenders. Two commissions were held, in January and September 2001, to recover club documentation with a view to ascertaining who should be identified in the Minute of Amendment.
(c) As already indicated, it cannot be argued that the "new" defenders have suffered prejudice as a result of the passage of time, because they share the same solicitors and counsel as the originally named five individuals.
(d) No criticism can be made of the pursuer's conduct.
(e) and (f) These are not relevant in this case.
(g) With regard to other remedies which the pursuer may have, this case was unusual. The pursuer does not have an alternative remedy. The Minute of Amendment is merely an elaboration of an existing remedy. When asked if he wished to expand or add to the averment at the end of Article 6 of Condescendence that "the pursuer has no alternative remedy against his legal advisers", Senior counsel declined to do so.
Submissions by senior counsel for the defenders
[19] Senior counsel for the
defenders adopted the submissions of junior counsel in their entirety, and
moved me to sustain the first defenders' first plea-in-law and to dismiss the
action insofar as directed against the individuals named in the Minute of
Amendment.
[20] Senior counsel submitted that the action as originally raised
was more restricted than it subsequently became. The first defenders were the club and the
office bearers thereof. There were no
averments of fault directed against any individual. The summons was served on the club and five
named persons as the office bearers of the club as representing the club and as
individuals, but there was no suggestion anywhere in the averments or the
pleas-in-law of individual liability of each member of the club nor any hint of
individual fault. What the pursuer's
submissions amounted to was precisely what was criticised by Lord Marnoch
when the case was before the First Division, namely a confusion between matters
of procedure and matters of substantive law.
None of the additional 16 defenders were named or suggested as being at
fault individually until the Minute of Amendment was served; this amounted to a radical or fundamental
defect (to use Lord Eassie's words in Thomas
Menzies (Builders) Ltd v Anderson
& Menzies). It was also quite
clearly different from the situation in Pompa's
Trustees where the court allowed amendment so that one representative of
the right defender should be replaced by a different representative of the
right defender; the 16 individuals
referred to in the Minute of Amendment were not being sued in a representative
capacity on behalf of a "right defender", but rather were being introduced into
the action on the basis of averments of their own individual fault, which had
never been made before. Senior counsel
submitted that it was an indicator in favour of the defenders' position that
the Inner House pronounced an interlocutor on 19 December 2001 granting
warrant for service of the reclaiming print together with a copy of the Minute
of Amendment on the 16 named individuals, and thereafter on 18 January 2002
discharged the diet of Summar Roll set down for February 2002 as service had not
been effected on all the named individuals.
If, as was submitted for the pursuer, these named individuals had
effectively been parties to the action all along by virtue of being members of
the club, there was no need for service on them, and the interlocutors of
[21] Turning to the equitable discretion under section 19A, senior counsel suggested that some of the factors identified as relevant in paragraph 3.36 of the Scottish Law Commission Report had not been answered for the pursuer. With regard to paragraph (b), no explanation was given as to why the action had not been brought timeously against the 16 named individuals. Why had the pursuer not identified them earlier as committee members with individual fault? He was a member of the club and it is difficult to understand why he did not know who comprised its committee. With regard to paragraph (c), it was wrong to suggest that there was no prejudice to the 16 persons named in the Minute of Amendment; prior to service of the reclaiming print and the Minute of Amendment on them, it had been unnecessary for the solicitors acting on behalf of the first defenders as originally constituted to investigate the actings of these 16 individuals. A period of nearly seven years elapsed before investigations commenced.
[22] With regard to paragraph (g) of the Scottish Law Commission
Report, it was difficult, if not impossible, to see any advantage to the
pursuer in having these additional 16 individuals in the action. There was substantial disadvantage to the 16
individuals, because the pursuer was legally aided and the defenders will
require to go to the trouble, worry and expense of preparing for a proof and
appearing at the proof, with little prospect of recovering all, or even any, of
their expenses. The doubts expressed by
the First Division regarding the strength of the pursuer's case under the
Occupiers Liability (
Reply by senior counsel for the pursuer
[23] Senior counsel submitted that
the summons was served in the proper form, ie on the club and specified office
bearers. That was the proper way in
which to convene a club as a defender.
The ratio of the First Division's decision was that the pursuer was
suing himself (although he was not named as a defender). It must follow that he was suing every member
of the club, and therefore these 16 members were properly convened as defenders
from the outset. He renewed his motion
that the first defenders' first plea-in-law should be repelled and that a Proof
before Answer should be allowed with all remaining pleas outstanding.
Discussion
[24] I consider that this action
insofar as directed at the 16 "new" defenders is timebarred by reason of
section 17(2) of the Prescription and Limitation (Scotland) Act 1973. There are several factors which cause me to
reach this view.
[25] The action as originally framed was directed against the club, and its members qua members. There was no suggestion at that time that the pursuer was attributing individual fault to any of the individuals who formed the club. There were five office bearers who were sued, and it is stated in the instance of the summons that they were sued "as representing the said club and as individuals", but there was nothing to suggest that they were individually at fault, and certainly nothing to suggest that any other members of the club who were unnamed in the summons were individually at fault.
[26] By the time that the matter came before the Lord Ordinary for
debate in July and August 2000, the pursuer was asserting fault of the club and
fault of the five named individuals, but was still not asserting that anyone
else had caused this accident by their individual fault. The Lord Ordinary dismissed the action
against the club, and against the five members in their representative
capacity, but remitted the pursuer's case against the five named persons as
individuals to a Proof before Answer.
The First Division upheld that decision.
From
[27] It follows that although the 16 "new" defenders may have had an
interest in the action as earlier framed, there was nothing in that action
which disclosed that they might have any liability in damages towards the
pursuer because of this accident.
Insofar as they might be described as defenders to the action, this was
only because they were members of the club - and it was conceded that
membership of a club does not per se result
in a duty of care being owed by one member to other members. It should also be borne in mind that until
the Closed Record was allowed to be opened up and amended in terms of the
Minute of Amendment, by interlocutor dated
"The effect of such procedure is nevertheless to convene the club or association as a whole, albeit any decree obtained can only be enforced directly against the named representatives".
[28] The Minute of Amendment which was allowed to be received on
[29] This is a far cry from the situation in Pompa's Trustees, in which the pursuer had already identified
correctly the party potentially liable to pay compensation (namely the
community concerned, or the ratepayers) but had wrongly identified the
representatives of that party, and sought merely to substitute one representative
of the right defender for a different representative of the right
defender. The change sought to be
procured by this Minute of Amendment is, to use Lord Eassie's words (albeit in
the different context of prescription) in Thomas
Menzies Builders Ltd v Anderson &
Menzies, both radical and fundamental.
Prior to the interlocutor of
[30] The question then arises as to whether the action should nonetheless be allowed to proceed against these named individuals, in the exercise of the equitable discretion conferred by section 19A of the 1973 Act. In this regard, while it has no force in the law, both parties appeared to accept that the list of factors contained in paragraph 3.36 of the Scottish Law Commission Report No 207 was a helpful list of factors which might be taken into account by a court. With regard to paragraphs (a) and (b), there was an elapse of almost seven years between the accident in February 1995 and the attempts at service of the Minute of Amendment on the named individuals in January 2002. There was nothing in the pleadings to explain this delay, but averments can for this purpose be supplemented by ex parte statements at the bar. Senior counsel for the pursuer told me that this was a complex case and his instructing agents had experienced difficulties in establishing who were the correct defenders; indeed, two commissions were held in January and September 2001 to recover documentation of the club to identify who should be included in a Minute of Amendment. However, it is not clear to me why these steps were not taken until 2001, the accident having happened in February 1995. No attempt was made to explain this delay, nor to explain why it was so difficult to establish who were the correct defenders.
[31] With regard to the effect that the passage of time is likely to have had on the ability of the 16 "new" defenders to defend the action, it is relevant that they are represented by the same counsel and agents as have represented (and continue to represent) the five persons originally named in the summons. To that extent, therefore, it may be that certain investigations relevant to all defenders have been carried out, or were carried out before January 2002. However, the involvement of each of the "new" defenders is not necessarily the same as that of the original five. Moreover, there is in my view some force in the argument presented by junior counsel for the defenders that the accident happened some 13 years ago and it is likely to be at least another year before any proof takes place. Such a passage of time will inevitably have an adverse impact on the recollections of witnesses, for example, about what was said at meetings, particularly in the case of people who had little or no involvement in the meetings and had no reason to consult their memories nor to consider the matter until about seven years after the accident.
[32] There is no attempt in the pleadings to explain how expeditious
the pursuer was in seeking legal and other expert advice and intimating a claim
of damages. I was told that the claim
was first intimated to the club on
[33] There is also considerable force in the argument advanced for the defenders that the pursuer already has a remedy against the five originally named defenders and it is difficult to see what additional remedy he might have against the 16 additional individuals. As counsel for the defenders suggested, it is difficult to conceive of circumstances whereby the pursuer might succeed against the 16 "new" defenders but fail against the five originally named individuals. It is therefore difficult to imagine what prejudice would accrue to the pursuer by the court exercising its discretion under section 19A in favour of the persons named in the Minute of Amendment, and against the pursuer.
[34] Weighing all these factors together, and considering the whole circumstances of this case, I am not persuaded that it would be equitable to allow the pursuer to maintain this action against the 16 individuals named in the Minute of Amendment (No 36 of process). I shall accordingly sustain the first plea-in-law for the first defenders and dismiss the action against the individuals named in the Minute of Amendment for the pursuer (No 36 of process). Quoad ultra I shall allow a Proof before Answer with all pleas standing.