Scottish Court of Session Decisions

Pursuer: Ms Hood, advocate; Drummond Miller LLP

First Defender: MacPherson, solicitor-advocate; Simpson & Marwick

No appearance for the Second Defenders

22 October 2010

[1] With the benefit of legal aid the pursuer seeks substantial damages from the Chief Constable of Strathclyde Police and from the Scottish Ministers, the latter being responsible for the acts and omissions of the Scottish Prison Service. He avers that on 12 November 2007, while employed as a prison officer at Polmont Young Offenders Institute, he was required to search the property of new detainees. That property had previously been searched, checked and placed in sealed bags by police officers. While searching a jacket, the pursuer's finger was jabbed by a dirty syringe. He was informed that he was at risk of contracting HIV, hepatitis B and hepatitis C. Although blood tests seemed clear, it is averred that the pursuer became increasingly concerned, stressed and unable to sleep. By early December 2007 he was considered to be unfit for work. Six months after the incident, the pursuer received confirmation that he had not contracted any disease as a result of the incident.

[2] The pursuer avers that as a consequence of the above events, he now suffers from chronic post-traumatic stress disorder combined with a severe level of reactive depression and high anxiety. He has been unable to work since early December 2007. He began to drink to excess and was convicted of a breach of the peace. His employment was terminated in November 2008. He now seeks damages in the sum of £550,000. The pursuer's statement of valuation of claim quantifies solatium at £45,000; past wage loss at just under £36,500; and loss of pension rights at over £66,000. Future wage loss and services are yet to be assessed, but given the relatively young age of the pursuer, the former might amount to a very substantial claim.

[3] The Chief Constable has invited the court to remit the action to the sheriff court under and in terms of section 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, which provides:

"The Court of Session may in relation to an action before it which could competently have been brought before a sheriff remit the action (at its own instance or on the application of any parties to the action) to the sheriff within whose jurisdiction the action could have been brought, where, in the opinion of the court, the nature of the action makes it appropriate to do so."

The court was informed that the Scottish Ministers consent to the application.

The Submissions for the Chief Constable
[4] On behalf of the Chief Constable, Mr MacPherson accepted that the action involves a substantial claim. Liability has been admitted on a joint basis, but contributory negligence and quantum are live issues. The pursuer lives in Kirkintilloch. If the case had been raised in the sheriff court, it would have been dealt with by in-house solicitors at considerably less expense than is involved in defending proceedings in the Court of Session. Those costs will not be recoverable from the legally aided pursuer. The Chief Constable's insurance arrangements are such that his responsibility for costs and damages has a limit of £100,000, after which there is insurance cover. Thus, he has no direct financial interest if the total value exceeds that sum. However, that apart, all the costs of the action will be met by the public purse. It was submitted that the impact on the public purse is relevant to the present application since it bears on "the nature of the action" within the meaning of section 14 of the 1985 Act. The pursuer seeks a proof, not issues, and the new sheriff court chapter 36 procedures mirror chapter 43 in the Court of Session, so there are no procedural advantages for the pursuer in litigating in the Court of Session. Mr MacPherson's information was that a four day diet could be allocated in the sheriff court in early 2011.

[5] I was referred to Strathclyde Police Authority's revenue budget medium term forecast, dated 26 August 2010, and in particular to paragraph 3.1 which states:

"The informed view is that across the public sector funding cuts will be much greater than previously expected. With approximately 88% of current gross budget resources allocated to payroll costs the impact of cuts will be particularly severe and inevitably have a significant impact on payroll related elements of expenditure both in terms of numbers of staff/officers and conditions of service."

The court was told that given the severe challenges facing the authority's budget and spending commitments, the Chief Constable "feels bound" to make the application for a remit. The pursuer would suffer no prejudice if the motion was granted. In the course of his submissions, Mr MacPherson referred to McIntosh v British Airways Board 1990 SC 338, Gribb v Gribb 1993 SLT 178, McKay v Lloyds TSB Mortgages Ltd 2005 SCLR 547 and Paterson v Advocate General for Scotland 2007 SLT 846.

The Submissions for the Pursuer
[6] On behalf of the pursuer, Ms Hood submitted that the reasoning in the main authority, namely the decision of the First Division in McIntosh, runs counter to the application. The pursuer was entitled to raise the action in the Court of Session. It is not a matter of whether he will or will not be prejudiced by a remit. The only factor relied on by Mr MacPherson is anticipated savings in the cost of defending the proceedings if they are remitted to the sheriff court, which is given allegedly decisive importance because of the current budgetary constraints on the police authority. The implication is that, given the adverse state of the public finances, in the immediate future all actions against public authorities will have to be raised in the sheriff court. However, it was submitted that the state of the public finances has no bearing upon the statutory test for a remit under section 14.

[7] If one concentrates on the present action, including its potential value, it can be regarded as wholly appropriate for the Court of Session. It was submitted that there is no research which confirms the proposition that litigation in the sheriff court is cheaper than in the Court of Session, although some statistics are mentioned in the recent Civil Courts Review conducted by a board chaired by Lord Gill. Counsel informed me that, perhaps surprisingly, the Scottish Legal Aid Board's rules mean that recoverable fees for counsel are higher in the sheriff court than in the Court of Session. The pursuer's employment came to an end after he was convicted of a breach of the peace, raising the issue as to whether this was or was not linked to the accident. A similar question arises in respect of his post-accident alcohol abuse. Professional input is required on the prognosis for the pursuer and on the proper assessment of future wage loss. The question of alleged contributory negligence is far from straightforward. It was submitted that the case involves a number of complex issues which are wholly suitable for resolution in the Court of Session. So far as public funding is concerned, Ms Hood suggested that it would be wrong to discriminate against legally aided clients, thereby effectively forcing them to litigate in the sheriff courts. In any event any litigant, including insurers, could seek a remit in respect of any kind of action on the basis of alleged economies.

[8] Both Mr MacPherson and Ms Hood accepted that it is not easy to define exactly what Parliament intended when it enacted section 14, and in particular when "the nature of the action" will make it appropriate to remit a case to the sheriff court. They both indicated that such remits are rare, unless it is clear that the recoverable amount will fall below the level of the privative jurisdiction of the sheriff court (currently £5,000). However, Mr MacPherson stressed that a high value claim is no bar to a remit.

Discussion and Decision
[9] Unsuccessful attempts have been made to remit actions to the sheriff court on the grounds of their low value or allegedly straightforward nature. One example is the decision of the First Division in McIntosh. The reasoning in that case is binding upon me. The following general principles can be taken from the Opinion of the Court in McIntosh.

1. The power to remit is available in larger and more difficult cases as well as in the small and simple. It was introduced to meet the needs of particular cases, not to redistribute work from one court to the other. A remit should not be made on grounds which would justify the same procedure in every case of the kind.

2. Section 14 was not enacted so that all actions which are appropriate for the sheriff court are sent there. The wording of section 14 was designed to prevent the remit of cases which are not appropriate for the sheriff court.

3. Where the pursuer might recover more than the upper limit to the privative jurisdiction of the sheriff court, the action should be regarded as appropriate for the Court of Session, unless some other factor is present which shows that the nature of the particular case is such that it is appropriate for it to be dealt with in the sheriff court. In general, subject to the privative jurisdiction of the sheriff court, a pursuer is entitled to choose to litigate in the Court of Session. The power to remit should be exercised only on grounds which are particular to the case concerned.

[10] In McIntosh the court did not elaborate upon what such other factors might be, and there is insufficient in reported case law to provide any real guidance on the point. The court did discuss the proposition that it is cheaper to pursue cases in the sheriff court, but not in terms which provide any encouragement for the contention that this might, in itself, justify a remit. In summary, in McIntosh the First Division strongly endorsed the right of a litigant to raise his action in the Court of Session, so long as the potential award falls above the privative jurisdiction of the sheriff court. If that general approach is to be altered it will be a matter for Parliament (no doubt after consideration of the discussion in the Civil Courts Review).

[11] Of course surrounding circumstances will change over time, including the introduction of new procedures in the sheriff court which minimise procedural differences between the two courts, and, as in present times, increasing difficulty for public bodies (and no doubt others) in funding the costs of litigation. However, these factors, along with the proposition that litigation is cheaper in the sheriff court, are general matters, which are difficult to bring within the scope of the phrase "the nature of the action." The statutory test directs attention to the particular circumstances of the cause sought to be remitted, and specifically to its nature. An action may be raised against two defenders, one of whom can fund a defence with little difficulty, whereas the other is next to bankrupt, however the nature of the action is the same for both. A defender may fall on unexpectedly hard times in the course of his defence to a claim, but this does not alter the nature of the action against him. In my view the Chief Constable has not raised an issue concerning the nature of the current action, but rather as to the state of the public finances in the country, and in particular the budgetary constraints facing him and other public authorities. Mr MacPherson made it clear that the motion to remit would not have been contemplated had the action been pursued before the recent economic downturn.

[12] When considering an application under section 14 the focus must be on whether there is anything in the specific circumstances of the action which makes it appropriate to remit the case to the sheriff court, all against the background of the substantial overlap in the concurrent jurisdiction of the two courts in civil proceedings. If attention is so directed, it is immediately clear that there is nothing which supports the present motion. The claim has, at least potentially, a high value. It raises a number of difficult and complex issues of fact and law. Unless and until there is some major change in the current civil court structures and practices, it is a claim which is wholly appropriate for the Court of Session. I understand and indeed am sympathetic towards the challenges and difficulties facing the Chief Constable and others. It is these problems which have prompted the current application. However, standing the authoritative guidance laid down in McIntosh and, separately, given my understanding as to the correct approach to the application of the test in section 14, I am in no real doubt that it falls to be refused. It can be noted that in Paterson, while refusing an application for a remit, Lord Hodge acknowledged that a pursuer's choice of the Court of Session as the forum for his action might impose substantial additional expense on defenders. So far as the decision in McKay is concerned, it can be distinguished on the facts, and in any event I find it difficult to reconcile with the reasoning in McIntosh.

[13] For completeness I should add that I have not overlooked the decision in Gribb. However I note that, at least in the brief report, there is no indication that the Lord Ordinary was referred to the First Division's decision in McIntosh, and it is not easy to reconcile the outcome with the reasoning in that case. I agree with Ms Hood's submission that Gribb was an extreme case, which turned on the Lord Ordinary's view that the defender would be "unable to afford to defend" a "perfectly straightforward" claim for a substantial capital sum in a divorce action raised in the Court of Session. In any event, with the utmost respect to the Lord Ordinary, there is nothing in the brief discussion set out in the report of his decision which dissuades me from the views set out above.