Scottish Court of Session Decisions

Pursuer: Reekie, advocate; Lefevre Litigation, Solicitors

First Defender: Galbraith, advocate; Anderson Solicitors, LLP

Non-participating parties: Second and Third Defenders

11 October 2011

[1] This is a personal injury action governed by Chapter 43 of the Rules of the Court of Session [RCS]. On 23 June 2011 Counsel for the First Defender made an application in terms of RCS 43.6 (6) for the case to be sent to the Procedure Roll to debate the relevancy of the Pursuer's claim against the First Defender. At the same time Counsel opposed the motion on behalf of the Pursuer in terms of RCS 43.6 (5) and (5A) to allow a proof of eight days duration.

[2] Having made avizandum, I have decided to refuse the First Defender's motion and to allow a proof as requested by the Pursuer.

[3] The Pursuer pleads that on 11 October 2006 she was driving her two daughters to school when her vehicle skidded on a patch of diesel fuel and crashed. She and her daughters were injured in the crash. Presumably the daughters' claims have been settled. The only claim presented in the current process is for the Pursuer herself. A substantial element of the Pursuer's claim is for psychological injury. There are issues about liability and quantum of damages.

[4] The Pursuer avers that the diesel fuel on the road leaked from the engine of the First Defender's Land Rover Discovery Td5. The Pursuer blames the First Defender for driving the Discovery on a public road while diesel fuel was leaking from its engine; she blames the Second Defenders, who replaced the cylinder head on the Discovery's engine the day before, for failing to check that a fuel pipe was properly connected; and she blames the Third Defenders who sold the cylinder head to the Second Defenders with pipework attached for supplying the part with a loose fuel pipe connection.

[5] Common law fault is alleged against all Defenders. In addition a breach of the Consumer Protection Act 1987 section 3 is alleged against the Third Defenders. The Second and Third Defenders are content for the case to go to Proof. They did not participate in the hearing of 23 June.

[6] Mr Reekie, Counsel for the Pursuer, explained that the claim against the First Defender is based on inference: an adequately maintained motor vehicle does not leak diesel fuel from its engine; the First Defender ought to have been aware of the fuel leak; and he ought not to have driven the Discovery on a public road while it was leaking diesel fuel [Record 10B-C]. The fact, if proved, that the First Defender was driving a vehicle which constituted a knowable danger to other road users is a matter calling for explanation. Mr Reekie submitted that pleadings to this effect are relevant for inquiry.

[7] The phrase "pleadings relevant for inquiry" could be misunderstood. I agree with Ms Galbraith, Counsel for the First Defender, that it is not a question of inquiring into the facts at large to find out if the claimant has a case: it is a question of inquiring into the claimant's case set out in the written pleadings to determine whether it can be established as a matter of fact [Morrison v Rendall 1986 SC 69 at 78 per Lord Robertson].

[8] If the facts averred by a claimant are, assuming them to be true and on the most favourable view, incapable in law of supporting the claim, then the pleadings are irrelevant and there is no point in having an inquiry. Parties agree that this is the test [Jamieson v Jamieson 1952 SC (HL) 44; Miller v South of Scotland Electricity Board 1958 SC (HL) 20].

[9] Ms Galbraith submitted that the mere fact of a fuel leak cannot possibly raise an inference of negligent failure to inspect and maintain by the vehicle owner where, as here, the cause of the fuel leak is a loose fuel pipe connection in a part supplied by the manufacturer and fitted by a main dealership the day before [Record 10C-E; cf. Binnie v Rederij Theodoro BV 1993 SC 71 especially at 74H-I and 87D-E; Penman v Blue Cap Logistics Ltd 1999 SLT 1246 especially at 1249A-C; Ameen v Hunter 2000 SLT 954 especially at 955 D-L].

[10] To succeed, the Pursuer in this case has to prove that the defect came, or should have come, to the First Defender's attention between the time when the Second Defenders returned the Discovery to him with a faulty fuel pipe connection on 10 October [Record 10C-D, 12B] and the point when the fuel spill that caused the accident occurred on 11 October [Record 9B-E]. Fuel leaks occurring further along the route of the First Defender's journey on 11 October are irrelevant as regards fault on the part of the First Defender.

[11] To put the matter in context - the Pursuer avers that her accident happened travelling south on the A90 Fraserburgh-Peterhead road near its junction with the entrance to the St Fergus gas terminal, while the First Defender, who was travelling the A90 in the same direction ahead of the Pursuer, replies that his own journey had been without incident until 2.7 miles beyond the entrance to the gas terminal; and that it was not until he had travelled a further 0.4 miles that he realised fuel was leaking [Record 16C-17A; 18 D-E]. There is an issue between the Second and Third Defenders as to whether the fuel pipe worked loose during the course of the journey [Record 24E; 36B].

[12] The Pursuer does aver that the Discovery itself skidded on two occasions [Record 9E]: but, Counsel for the First Defender submitted, that whether or not the Discovery skidded is beside the point if the skidding occurred beyond the entrance to the St Fergus gas terminal.

[13] Equally the Pursuer's averment that leaking diesel fuel has a strong smell [Record 10C] is pointless unless the Pursuer offers to prove that the First Defender was or ought to have been aware of the smell of leaking diesel fuel before he passed the entrance to the gas terminal.

[14] Counsel for the First Defender submitted that no purpose will be served by offering the Pursuer an opportunity to give further specification of these matters [cf. Practice Note No 2 of 2003]. I agree. The Pursuer - and this was conceded by Pursuer's Counsel - does not possess information that is more specific, for example about the location of the two alleged skidding incidents.

[15] Finally, Counsel for the First Defender submitted, the Pursuer "torpedoes" her own case, apparently accepting the fact, by use of a "not known and not admitted" response, that: "the First Defender's journey had been entirely without incident and he had been given no cause to consider there was any problem with his vehicle before reaching the Swallow Hotel" [Record 12D-E]. (The Swallow Hotel is the place beyond the entrance to the gas terminal where the First Defender says he first realised that fuel was leaking.)

[16] Notwithstanding the cogent submissions by Counsel for the First Defender, I find that there are a number of reasons for allowing a Proof.

[17] I assess that in principle subject to limited exception, in accordance with the spirit of RCS Chapter 43, the facts should be established before judgements on liability are made. Establishing the facts first is not necessarily an unreasonable way of disposing of claims: if I understand matters correctly, Lord Denning (when sitting as a member of the Appellate Committee on an appeal from the Court of Session) explained that this was the way things have been done in England & Wales since 1883 [Miller v South of Scotland Electricity Board 1958 SC (HL) 20 at 36].

[18] Chapter 43 derives from the recommendations of Lord Coulsfield's "Working Party on Court of Session Procedure" (2000) ["Coulsfield Report (2000)"], rejected by the Court of Session Rules Council in 2001, and the "Supplementary Report: Written Pleadings" (2003) ["Coulsfield Supplementary Report (2003)"]. The remit confided by the Lord President to Lord Coulsfield envisaged that the right to a Procedure Roll hearing would be abolished for the bulk of "routine", mainly personal injury, cases. Lord Coulsfield's Working Party recommended that "there should not be any room for debate in the bulk of cases" [Coulsfield Report (2000), 3, 22].

[19] Chapter 43 is meant to "expedite the proper resolution of personal injury claims without unnecessary delay or expense" [Hamilton v Seamark Systems Ltd 2004 SC 543 at § 16, Lady Paton]. Procedure Roll debates must have been thought to engender "unnecessary delay and expense" since a key feature of Chapter 43 is the removal of the right to insist on debating the relevancy of the other side's pleadings at Procedure Roll.

[20] The intendment of Chapter 43, SI 2002/ 570, is that Procedure Roll debates should be a truly exceptional occurrence. In terms of RCS 43.1A and 43.5, the primary route for achieving a debate is to have the proceedings withdrawn from Chapter 43 and appointed to proceed as an ordinary action. Cases can only be withdrawn for "exceptional reasons". For actions remaining within the Chapter 43 regime, RCS 43.6, as made, contains no reference at all to debates [cf. Coulsfield Report (2000), Appendix 1, Model Timetable, item 8; Appendix 4, draft Act of Sederunt, rule 43.5 (5)]; and Practice Note No 2 of 2003 directs: "A motion for Procedure Roll will not be granted lightly."

[21] The good sense of the Practice Note must be acknowledged. Unless the no-Procedure-Roll norm is adhered to in all but truly exceptional cases, then Chapter 43 has the potential to double the mischief that it is meant to cure: the reason is that for every would-be debate there has to be a debate about the justification for a debate.

[22] This is what happened in the present case. Counsel made all the submissions as to the irrelevancy and the relevancy of the Pursuer's pleadings - close analysis of the averments, interpretation of the procedural rules, reference to authorities on the substantive law, arguments as to expediency - that I envisage would be made at a debate proper, were I to appoint such a debate to take place on the Procedure Roll.

[23] What should the test for sending Chapter 43 actions to the Procedure Roll be?

Counsel for the First Defender submitted that the test is: "whether there is a 'reasonable prospect' that the result will be dismissal of the claim?"

[24] I do not think so. "Reasonable prospect" is a low-threshold, access-to-justice type of test. The Working Party envisaged that in those "exceptional cases" where there might remain a need, debate would be allowed "only where the judge is satisfied an issue has been identified on which it is in the interests of justice to have a debate" [Coulsfield Report (2000), 20].

[25] "In the interests of justice" signifies a discretionary departure from the procedural norm that has in view the substantive justice of the situation and, or alternatively, the efficient working of the justice system. The Working Party must have assessed that, once cases unsuitable for Chapter 43 have been filtered out (now under RCS 43.1A and 43.5), there is generally no substantive injustice in allowing some irrelevant claims to go to Proof; and that this is a lesser evil than for relevant claims to be stalled, awaiting debate on the Procedure Roll or, afterwards, pending the outcome of one or even two appeals [cf. Donoghue v Stevenson 1932 SC (HL) 31].

[26] The First Defender's written notice of opposition in terms of RCS 43.6 does apply the "interests of justice" test but, on a hypothetical basis, assuming the case to be fundamentally irrelevant [my emphasis]: "It would not be in the interests of justice for the first defender to expend the time and cost of engaging in a proof, if the case against him were to be fundamentally irrelevant." Who can disagree? but this begs the question. An example of "fundamental irrelevancy" would be where there is no duty.

[27] The Working Party's assessment clearly assumed a generally high standard of relevancy in the pleading of pursuers' cases [Coulsfield Report (2000), 20]: but that standard, the standard of written pleading in 2000, was one achieved over the course of more than a century by writing counsel who had been made "to concentrate on the essentials of a cause of action" (as Lord Denning put it in Miller at 36) by the sanction of dismissal for irrelevancy without inquiry. With the sanction gone it would not be surprising if written-pleading skills were to be degraded. Does this case exemplify the change? Pleading a "further-and/or-in-the-alternative" case seems to have presented a challenge.

[28] It would be harsh to fault the pleader. The Pursuer has come into Court with simplified pleadings in Chapter 43 form directed against the First Defender only; prompted by the averments of the First Defender, the Pursuer has convened the repairers as Second Defenders; the Second Defenders have convened the manufacturers as Third Parties; and ultimately the Pursuer has brought in the Third Parties as Third Defenders. (There have been several opportunities to apply in terms of RCS 43.5 for the case to be removed from the Chapter 43 procedure: but I was not told that any party had made such an application.)

[29] As Pursuer's Counsel put it, "the case has grown arms and legs" during a spate of adjustments. In addition to the original, pithy case against the First Defender [Record 10B-10C], the Pursuer now has direct cases against the Second Defenders and the Third Defenders [Record 10C-11C] as well as hypothetical cases against both the Second Defenders and the Third Defenders based on the facts averred by the First and Third Defenders against the Second Defenders and of the First and Second Defenders against the Third Defenders respectively [Record 11C-12B]. The Pursuer also has more than three pages of averments, including admissions, in response to the averments in answer of the respective Defenders [Record 12B-15D].

[30] Undeniably the Pursuer's pleadings have lost focus in responding to the averments for the Defenders. In understanding what might be the effect of the pleadings against the First Defender taken at their highest, the Court is bound in my view to ignore the surrounding clutter and to assess matters on the basis that no evidence will be led except the evidence offered by the Pursuer in support of her primary case.

[31] In such an event I think it not impossible that the Court hearing the Proof would find a prima facie case against the First Defender made out [Binnie v Rederij Theodoro BV supra per Lord President at 86H-87E]. In Ameen v Hunter 2000 SLT 954 at 955 Lord Kingarth held that the cases of Binnie and Penman, supra, did not amount to "clear authority for the proposition... that any breakdown in a piece of mechanical equipment - including a privately owned vehicle - is prima facie negligence on the part of the owner or operator".

[32] The "breakdown" in Ameen was a flat tyre; and there is high authority for the common sense view that a burst tyre is by itself neutral since the occurrence may or may not be due to negligence [Elliot v Young's Bus Service 1945 SC 445 at 455 per Lord Justice-Clerk, discussed in Binnie, supra, at 85E per Lord President]. Even so, the issue in Ameen was reserved for decision after Proof; and, as I read Lord Kingarth's opinion, he did not exclude the possibility that in some cases, depending on the nature of the breakdown, an inference of negligence might properly arise.

[33] The nature of the breakdown in Penman is not clear from the report: but there was averred to be accompanying evidence of defective lights, clutch and brakes capable of supporting an inference of faulty maintenance generally. Lord Bonomy allowed a Proof before Answer.

[34] To be absolutely clear, I am not persuaded that the Pursuer's express admissions in the present process fatally compromise her case against the First Defender; and in the circumstances I think it would be unreasonable to treat the Pursuer's not-known-and-not-admitted responses as if they were implied admissions of matters within her knowledge. Were I to grant the First Defender's motion, it is entirely possible that the Pursuer would seek leave to amend.

[35] I agree with Counsel for the First Defender that it is not satisfactory for the First Defender to have to incur the expense and inconvenience of having to prepare for and participate in eight days of proof if there is no prospect of a finding of liability against him. It seems to me that the First Defender cannot avoid being an essential witness; and if the judge of the facts finds that the Pursuer never really had any basis for suing the First Defender, the disadvantage to the First Defender might be mitigated by an award of expenses on the higher scale.

[36] The decision is one for my discretion having regard to the terms and spirit of the Rules of Court and the guidance given by the Practice Note. For the reasons given I shall refuse the First Defender's motion and grant the Pursuer's motion and appoint of proof of eight days duration, reserving meantime all questions of expenses.