Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 66

XA10/16

Lady Paton

Lady Clark of Calton

Lord McGhie

OPINION OF THE COURT

delivered by LADY CLARK OF CALTON

in the cause

MR D A YEBOAH

Pursuer and appellant;

against

GLASGOW CALEDONIAN UNIVERSITY

Defenders and respondents:

Act:  Party

Alt:  McLean, Solicitor Advocate;  Brodies LLP

9 August 2016

History
[1]        In about October 2007 Mr Yeboah (“the pursuer”) matriculated as a student with Glasgow Caledonian University (“the defenders”).  He was accepted on the Overseas Nurse Programme (“the ONP”).  The ONP was a programme for internationally qualified nurses seeking employment in Scotland and was accredited by the Nursing and Midwifery Council (“NMC”).  The course involved academic study, clinical practice on placements in the NHS and detailed assessment to specified standards.  There was a time limit of two years specified within which the ONP course required to be successfully completed by the pursuer.  Successful completion of the programme provided eligibility for registration with the NMC. 

[2]        On 12 February 2009 the pursuer’s employment with the NHS Greater Glasgow Health Board was terminated.  The reason given was that the pursuer had failed to achieve the necessary standard required to obtain the NMC registration in spite of a longer than normal timescale being allowed as well as extensive support and mentoring. 

[3]        At a meeting of the defenders’ extraordinary assessment board on 18 March 2009 the defenders considered the case of the pursuer.  It was reported that: 

“The student failed the second diet (although the third attempt) of clinical assessment despite having been given extensive support and an extension to the submission date.  The chair commended the mentoring staff on their work and documentation.” 

The pursuer challenged the decision making of the defenders and in particular the interpretation of the assessment guidelines which they applied.  These issues are at the heart of the dispute between the parties. 

[4]        Since July 2009, the pursuer has made various unsuccessful complaints about the defenders’ decision making using the internal complaints procedures of the defenders;  invoked the assistance of the Scottish Public Service Ombudsman;  made freedom of information requests;  raised unsuccessful proceedings in the employment tribunal and attempted to obtain legal aid for judicial review. 

[5]        The pursuer raised an action against the defenders by initial writ which was served on the defenders on 18 November 2014.  The date of calling of the action is not specified.  The pursuer craved a declarator that the defenders are obliged to comply with the terms of the contract to inform the NMC that the pursuer is eligible for registration and sought damages of £20,000.  The defenders defended the action and the pleadings were revised by both parties.  The pleadings, as developed by the pursuer, sought the following remedies: 

“1.  The Pursuer craves the court to provide a proper construction/interpretation from the expressed terms of the contract and determine as a matter of law the achieved four competencies from both placements required by the NMC/Glasgow Caledonian University constitute a pass of the practical modules or not.  The Court should also decide whether the standard so achieved by the pursuer sufficiently meets both the minimum NMC/GCU requirement for entry to the register based on their published guidelines for ONP/undergraduate nursing students on the NMC programme. 

2.    The Pursuer craves the Court to compel the defender to implement the proper terms of the contract, which if correctly interpreted would demonstrate that all competencies in placement modules and the theory were passed that met the NMC/defender’s standard of competence and that the pursuer is therefore entitled to be awarded the appropriate certificate and a recommendation for registration by the defender. 

3.    The pursuer craves the Court to provide proper interpretation of the Student Complaint Mediation and Resolution procedure (SCMRP) document as it relates to the pursuer appeal and determine if the defender was right or wrong to decide the pursuer’s appeal as it was done.  The Court should also determine as a matter of interpretation whether the SCMRP provided alternative process to the pursuer other than those described in the SCMRP.  The Court should decide whether the procedure described in the SCMRP was not a procedural barrier to appeal Assessment Board’s decision on Clinical placement, which is a fundament procedural breach of the pursuer’s right to appeal the Assessment Board’s decision on any permissible ground. 

4.    The pursuer craves the Court to determine whether the defender was not in breach of contract and duty of care owed to the pursuer in terms of his assessment interpretations and decisions.

5.    The pursuer craves the Court to grant Decree against the Defender for the payment to the pursuer a minimum of FIFTY THOUSAND POUNDS in (£50.000) STERLING and such other sums as the court may determine. 

6.    The sum sued for being reasonable, Decree therefor should be granted as craved.”

[6]        The defenders pled a number of preliminary pleas including competency, relevancy and prescription in terms of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”).  Following debate on competency only, the sheriff concluded that without further inquiry “… it is not possible at this stage to form any concluded view about the competency issue”.  Thereafter there was a second debate which focused on the defenders’ pleas in relation to relevancy and prescription.  The sheriff sustained the fourth plea in law and upheld the submission by the defenders that the five year prescription applied.  The sheriff pronounced decree of absolvitor “on the basis that any obligation has been extinguished”.  The sheriff also made certain findings about lack of specification in relation to parts of the pursuer’s pleadings. 

[7]        The pursuer appealed to the sheriff principal mainly in respect of the sheriff’s decision to uphold the defenders’ preliminary plea regarding prescription and to grant absolvitor.  The pursuer also submitted that the sheriff had erred in concluding that there were insufficient relevant averments to allow a proof in relation to section 6(4) of the 1973 Act.  The sheriff principal concluded in paragraph 22 of his opinion that the sheriff was entitled: 

“… to decide that the pursuer’s claim had, indeed, prescribed prior to the service of the writ on 18 November 2014 and to assoilzie the defenders from the craves of that writ and found no basis to interfere with the sheriff’s decisions”. 

The sheriff principal also described the pursuer’s pleadings in support of section 6(4) of the 1973 Act as “woefully lacking in relevancy and specification”.

The appeal by the pursuer to the Inner House of the Court of Session
[8]       In order to place the submissions by the parties in this appeal into some context, we observe that the pleadings by the pursuer included craves in unusual form and did not follow the accepted requirement of responding to the defender’ answers.  Written pleadings are still an essential part of litigation in civil cases.  The pleadings give the parties an opportunity to set out in writing the essential nature of their legal claims, both in fact and in law, and enable the parties to limit and focus the nature of the dispute.  We cannot say that this has been successfully achieved in this case.  The  issues in a case may be decided by consideration of the pleadings and submissions as a preliminary matter before any proof and this underlines the importance of the pleadings.  Looking at the pleadings very broadly, we consider that the pursuer requested the court to provide a proper interpretation of what the pursuer described as a contract (with very undefined terms) between the pursuer and the defenders with the aim of upholding the pursuer’s third and fourth pleas in law, which stated: 

 “(3) The pursuer having achieved all competencies in placement modules at 78% did pass as condescended upon and is therefore entitled to be awarded the appropriate certificate and registration as craved. 

(4) The pursuer having suffered a loss as a consequence of the defender’s breach of contract and statutory duties as condescended upon is entitled to payment therefor as craved.” 

[9]        It is against that background, in which the parties in their pleadings disputed competency, relevancy and prescription, that this appeal by the pursuer comes before this court.  The competency issue was not determined after debate and is not an issue in this appeal.  The relevancy issues were determined by the sheriff only in part in relation to certain averments of the pursuer.  The general pleas to the relevancy, which both parties had raised in the proceedings, were undetermined.  The appeal by the pursuer to the sheriff principal dealt mainly with prescription.   We observe that the ill-focussed nature of the pursuer’s pleadings makes it difficult to deal with prescription divorced from the competency and relevancy issues.

[10]      The main issue the parties disputed in this appeal related to the defenders’ plea in law four which stated: 

“Any obligation incumbent upon the defender to make reparation to the pursuer as a result of any breach of contract or fault on their part having prescribed in terms of section 6 of the Prescription and Limitation (Scotland) Act 1973, decree of absolvitor should be pronounced.” 

The pursuer in his plea in law six stated: 

“The action is not prescribed in terms of section 6 and 11 of the Prescription and Limitation (Scotland) Act 1973 the instance and the defender should be found liable to their contractual and statutory breaches of care owed to the pursuer.” 

Submissions by the pursuer
[11]      In ground one of his appeal, the pursuer challenged the decisions of the sheriff and sheriff principal on the basis that they had erred in law in deciding that any obligation of the defenders had been extinguished by the operation of the short negative prescription.  The pursuer stated that his case was founded on a concurrent breach of contract and statutory duty.  The statutory duty relied on by the pursuer was said to be article 15, 3, 5(2)(a), and 5(3)(b) of the Nursing and Midwifery Order 2001.  Ground two of the appeal stated that there were errors in law because procedures in the lower courts were flawed.  Ground three stated that there were errors in law in the lower courts which had not admitted to proof certain specific averments made by the pursuer because of lack of specification.  Ground four related to expenses. 

[12]      In support of the amended grounds of appeal, the pursuer produced and relied on a 22 page note of argument. 

[13]      In his oral submissions, the pursuer sought leave to lodge a written supplementary note of argument and a production of calendar dates.  Having considered the supplementary note of argument, we invited submissions from parties about a new issue raised by the pursuer.  The pursuer submitted that he wished to amend his pleadings to introduce averments to the effect that the defenders posted the decision letter of 15 November 2009, relative to the complaints procedure, on 25 November 2009.  He submitted this was important information which he had only discovered recently.  He accepted that it was an entirely new matter and that the supplementary note of argument sought to introduce a new ground of argument which was not before the lower courts and not reflected in the written note of argument.  The pursuer wished to argue that the prescriptive period commenced 25 November 2009 and as there was service on the defenders on 18 November 2014, service was therefore within the prescriptive period.  Although there was no express reference to 25 November 2009 in the pleadings, the pursuer submitted that paragraph 34 of the pleadings was of some assistance to him in relation to giving notice to the defenders. 

Submissions on behalf of the defenders
[14]      The solicitor advocate for the defenders adopted his written note of argument.  He submitted that there were no errors of law identified by the pursuer in the grounds of appeal and in particular the obligations said by the appellant to arise out of an alleged breach of contract had prescribed, under and in terms of the Prescription and Limitation (Scotland) Act 1973 section 6.  No relevant claim had been made by the pursuer within the five year prescriptive period in terms of the 1973 Act.  He relied on the conclusion and reasoning of the sheriff principal.

[15]      In relation to the new issue and the motion to amend by the pursuer, the defenders objected to the introduction of a new issue at this late stage of the appeal process.  In the course of proceedings to date, the pursuer had submitted that the relevant date for commencement of the prescriptive period was 15 November 2009.  The new date was not foreshadowed in the pleadings and the defenders had no opportunity to investigate or consider this. 

The pursuer’s motion to amend
[16]      In relation to the pursuer’s motion to amend and the supplementary note of argument, we refuse the motion and refuse to entertain the supplementary argument.  We note that no minute of amendment was put before the court but we do not refuse the motion on that technical ground only.  The events complained of by the pursuer date back to at least 2009.  We have summarised the court proceedings, which included two debates before the sheriff and an appeal to the sheriff principal.  Lengthy written submissions were lodged by the pursuer prior to this appeal.  The defenders raised the issue of prescription at an early stage in the proceedings before the sheriff, and prescription has been a live issue throughout the proceedings.  The pursuer sought now to rely on a letter which he stated he had received.  The date he received it must be assumed to be within his knowledge.  The pursuer stated that he had recently noted that said letter had a post mark of 25 November 2009 and he had discovered that date was a Sunday.  We are of the opinion that the proposed amendment comes far too late in the history of these proceedings and we are not satisfied that any reasonable explanation is given by the pursuer for this delay.  In any event, we are far from persuaded that the issue which the pursuer seeks to introduce would have any material effect on the outcome of this case. 

The appeal grounds:  decision and reasons
[17]      We have carefully considered in detail the written notes of argument provided by the parties and we are grateful for their submissions. 

[18]      We note the pursuer’s approach to this appeal and make the general observation that this is an appeal from the decision of the sheriff principal.  It is not an appeal from the decision of the sheriff and does not generally entitle the pursuer to raise new issues which could and should have been raised before the sheriff principal. 

Ground one of the appeal
[19]      The first and main ground of appeal relates to whether the claims of the pursuer have prescribed.  It is difficult to identify from the pursuer’s pleadings what he identified as the breach or breaches of contract, but at the heart of this case is his complaint that he was failed by the defenders when he should have passed assessments, and that he was entitled to be awarded the appropriate certificate and registration with the NMC.  The decision of the defenders dated 18 March 2009 is said to have contributed to the termination of his employment and consequential hardship, for which loss he seeks damages.  To add to the confusion, it appears not to be disputed that the pursuer was in fact dismissed from his NHS employment on 13 February 2009, some time after the expiry of the two year period which he had been given to successfully complete the ONP programme. 

[20]      On 18 March 2009, at a meeting of the defenders extraordinary assessment board, it was decided and recorded that the pursuer had failed and was ineligible to continue on the ONP programme.  It is averred that said decision was not communicated to the appellant until 16 July 2009.  On 1 October 2009, the pursuer made a complaint to the defenders about the decision making.  By letter dated 30 October 2009 the complaint was not upheld by the defenders.  The pursuer appealed said decision of 30 October 2009.  That appeal process related to procedural error or unreasonable conclusions of the initial investigation of the complaint.  By letter dated 15 November 2009, the appeal about the outcome of the student complaint by the pursuer was refused.  There are no averments by the pursuer to explain how the internal complaint process could and should have resulted in the overturning of the decision of the defenders’ assessment board taken on 18 March 2009. 

[21]      Adopting the most generous interpretation of all of this for the pursuer, it is plain on his own averments that the defenders’ decision making about his case ended on 15 November 2009.  At the very best for the pursuer, the prescriptive period commenced on said date, albeit we consider that there is a strong argument that any remedy for the breach of contract (assuming that it be a breach of contract for present purposes) arose earlier.  By 18 March 2009, if not earlier, the pursuer became ineligible for registration in terms of the NMC programme and he was dismissed from his employment on 12 February 2009.  In terms of schedule 2 of the 1973 Act the “appropriate date” for a breach of contract in terms of section 6(3) in schedule 2 is “the date when the obligation became enforceable”.  The obligation to remedy a breach of contract or pay damages for a breach of contract dates from the appropriate date. 

[22]      Apart from the averments about breach of contract, the pursuer also sought to rely on “a decision or an omission to perform a statutory duty owed him under the 2001 Order”.  The pursuer submitted that there was some statutory duty of care owed to the pursuer.  We consider that this is totally misconceived.  It is well established in law that merely because a statutory duty is placed upon a person, this does not automatically give rise to a personal right to any individual to enforce the statutory duty and claim a remedy for alleged breach.  The Nursing and Midwifery Order 2011 is an order which provided for the regulation of nurses and midwives, the creation of a registration system and statutory committees.  We can identify nothing in paragraphs 15, 3 and 5 in the 2001 Order, relied upon by the pursuer, capable of creating a right which the pursuer is entitled to found upon and to claim damages.  Paragraph 3 established the NMC and its committees.  Paragraph 5 related to the establishment and maintenance of a register.  Paragraph 15 related to general duties of the NMC, the standard of education and training and requirements for admission. 

[23]      The pursuer also sought to develop an argument under sections 6(4) and 11(3) of the 1973 Act to prevent the running or to postpone the commencement of the prescriptive period.  His averments, which he submitted were relevant averments, are to be found at paragraph 34 of the pursuer’s pleadings where it is stated: 

“It is at this point that the pursuer was able to see and appreciate the defender full report/reply to the Glasgow Caledonian University Quality department in response to his appeal for the first time.  Additionally it was the first time the pursuer received the full minutes of the Assessment Board endorsement of his failure.  Besides the University continued to publish the Assessment Board’s decision, which he obtained as recent as 26 May 2011.  It was the defender’s error/misleading acts and conducts which induced the pursuer not to present any claim against the defendant between 15 November 2009 and June 2011.  Thus Section 6(4) Prescription Limitation (Scotland) Act 1973 ‘the 1973 Act’ is applicable in so far as it relates to the actual decision taken on 18 March 2009.  Further Section 11(2) the 1973 Act also apply in the instance since the defendant is liable for their errors which continued beyond 15 November 2009.  Besides, the Assessment Board erroneous interpretation of the pursuer’s assessment records before them was a stand-alone breach while the pursuer’s mentor’s misinterpretation of the assessment criteria according to the university correct regulations was also a separate breach, each of which is substantial enough to constitute a repudiatory breach.  Therefore there is no basis for time bar in the instance.  This is sufficient to defeat any potential argument in reliance on the statutory five year limitation period. 

[24]      There are a number of obvious problems apparent in paragraph 34.  Firstly, there are no relevant averments that the defenders had any duty to give detailed information to the pursuer.  The pursuer apparently recovered certain information in the course of his investigation about complaints but his averments fall far short of founding a relevant case under section 6(4) of the 1973 Act.  It is not sufficient merely to allege “error/misleading acts and conduct”.  There is no fair notice to the defenders and we consider the averments are not appropriate for proof.  In any event, even if there were separate “breaches” by the assessment board and the pursuer’s mentor’s interpretation of the criteria, the breach by the assessment board culminated in their decision dated 18 March 2009 and the mentor’s assessment predated that date.  A breach of contract does not become a continuing breach merely because it is not corrected. 

[25]      The pursuer submitted that there was error of law because loss could only occur when the pursuer discovered that he was unable to register and obtain a registered nurse post.  On his own averments, the pursuer was aware of this in July 2009 at the latest and this we understand was the reason given to the pursuer when he was dismissed in February 2009.  His utilisation of the defender’s complaints procedure post July 2009 does not somehow extend the defender’s alleged breach of duty in concluding that he had failed the assessment. 

[26]      Further we note the position adopted by the pursuer before the sheriff and the sheriff principal in relation to prescription.  The pursuer submitted that the date of 15 November 2009 was the date of the start of the prescriptive period, rather than the date of July 2009 which was the date submitted on behalf of the defenders.  It is not perhaps surprising therefore that the lower courts approached the matter in the way which they did.  We share the difficulties experienced by the sheriff principal in analyzing the pursuer’s pleadings and are not persuaded that he made any error of law as submitted by the pursuer. 

Ground two of the appeal
[27]      In ground two, the pursuer made criticisms of the sheriff.  The first criticism is that the sheriff was not entitled to note that the writ was served on the defenders on 18 November 2014.  We consider that the initial writ served by the pursuer on the defenders is part of the court process before the sheriff and he was well entitled to take account of it. 

[28]      The second criticism (which does not appear to have been raised before the sheriff principal) was that there was an earlier interruption of prescription as the pursuer applied for legal aid in September 2014 and lodged the claim in the sheriff court on 13 November 2014.  The pursuer prayed in aid Link Housing Association Ltd v PBL Construction Ltd and others [2009] CSIH 54.  Said case had a very complicated procedural history in which an action had been raised and the issue to be determined was whether or not, in the circumstances of the case, the lodging and intimation of a minute of amendment served to give fair notice to interrupt the prescriptive period.  The opinion of the Extra Division, delivered by Lord Nimmo Smith, paragraph 17, stated “… there is no requirement that there be a judicial decision:  it is the act of the pursuers in stating the claim in a formal document intimated to the defenders that is relevant”.  Thus a minute of amendment intimated to the parties was considered to be a relevant claim to interrupt prescription.  In contrast, an application for legal aid intimated to the proposed defender is commonplace.  It has never been accepted that this is equivalent to the raising of an action intimated to the defender or intimation of a minute of amendment in an action which has been commenced.  We draw attention to the definition of a “relevant claim” which is defined in section 9 of the 1973 Act as “a claim made in appropriate proceedings”.  That phrase is defined in section 4 of the 1973 Act as meaning “proceedings in a court of competent jurisdiction”.  We consider there is no merit in this submission and in any event there are no relevant factual averments in the pleadings to found such a case. 

[29]      The third criticism made by the pursuer is in relation to the procedure before the sheriff.  We consider this is misconceived.  In a case where there is a plea to the relevancy of the action, there may be criticism of specific averments as well as an attack on the relevancy of the whole action.  This criticism was considered by the sheriff principal and we consider he was correct in his conclusion for the reasons he gave. 

[30]      In this chapter of the appeal, the pursuer also submitted that there was an error by the sheriff principal.  We consider that the sheriff principal was entitled to follow the procedures which he did.  The sheriff principal was entitled to make a discretionary decision about the stage to consider amendment and whether any amendment should be allowed. 

[31]      We are of the opinion that all the issues raised in the second ground of appeal are without merit, and appear to arise from a failure to understand general well‑accepted practices in litigation.  To the extent that issues were raised about procedure in the sheriff court which were not raised before the sheriff principal, we are not prepared to entertain them. 

Ground three of the appeal
[32]      The sheriff made a decision about the lack of specification of certain averments.  We do not understand that the pursuer raised this on appeal to the sheriff principal.  We are not therefore prepared to entertain this issue.  In any event we consider the sheriff’s decision was not in error, for the reasons he gave. 

Expenses
[33]      In relation to the expenses awarded by the sheriff, the pursuer submitted that there were two debates, and that he was successful in the competency debate and therefore should not be liable for all the expenses.  The pursuer did not appear in court when the expenses motion by the defenders was considered by the sheriff.  In his written argument, the pursuer explained that he was late due to a road traffic accident and he phoned to advise the court administration of the delay but the proceedings had been completed before he arrived in court.  The pursuer complained that there was unfairness because, under the general rule, the pursuer was substantially successful in relation to the first debate but, in his absence, the sheriff awarded expenses to the defenders.  The pursuer also sought to challenge the award of expenses by the sheriff principal. 

[34]      The solicitor advocate for the defenders submitted that the pursuer was not present and did not oppose the award of expenses before the sheriff.  In respect of the award of expenses by the sheriff principal, no submission was made by the pursuer to justify departure from the normal rule that expenses should follow success. 

[35]      We have some difficulty because we do not have any agreed facts about the reason for the absence of the pursuer or whether he contacted the court administration.  We consider that there might be some force in the submission made by the pursuer in respect of the expenses of the first debate on competency before the sheriff.  We note, however, that the issue of expenses was not raised before the sheriff principal by the pursuer, albeit he stated in his written note of argument that he was informed by the sheriff informally that this could be done.  In all the circumstances, and taking into account that the matter was not raised as it should have been before the sheriff principal, we are not prepared to interfere with the decision of the sheriff. 

[36]      The pursuer advanced no good grounds which would justify interference with the decision of the sheriff principal in relation to expenses.  We note that the pursuer was unsuccessful in his appeal to the sheriff principal.

[37]      For the reasons given, the appeal is refused and we reserve the question of expenses of this appeal.