Scottish Court of Session Decisions

 

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

 

[2017] CSIH 17

A605/05

 

Lord President

Lord Brodie

Lord Glennie

 

OPINION OF THE COURT

 

delivered by LORD CARLOWAY, the LORD PRESIDENT

 

in the Reclaiming Motion by

 

 

JILL CLARK (A.P.)

 

Pursuer and Reclaimer

 

against

 

GREATER GLASGOW HEALTH BOARD

Defenders and Respondents

 

 

 

Pursuer: A Smith QC; Drummond Miller LLP

Defenders: CHS MacNeill QC, PM Stuart; NHS Scotland Central Legal Office

1 February 2017

Introduction
[1]        This is a reclaiming motion (appeal) against the Lord Ordinary’s interlocutor of 12 February 2016 assoilzing the defenders in respect of the acts of their employees, notably a Dr Umstad and the midwifery staff at the Queen Mother’s Maternity Hospital, Yorkhill, during the labour of the pursuer’s mother, on 2 March 1992.  However, the issue which the pursuer seeks to raise does not directly concern that interlocutor.  The pursuer wants the court to review the Lord Ordinary’s earlier interlocutor of 18 December 2015, which refused to allow receipt of a Minute of Amendment after proof but before judgment.  The Minute sought to introduce a claim of negligence on the part of a Professor Whitfield and other medical staff, including Dr Umstad, at Yorkhill when they saw the pursuer’s mother on, it is averred, 29 November 1992 and thereafter up until the rupture of the pursuer’s mother’s uterus during labour. 

[2]        The pursuer was granted leave to reclaim that interlocutor, but did not do so.  The issues are whether the court should allow a challenge to that interlocutor now and, if so, whether there is a sound basis upon which to interfere with it.

 

Procedure
[3]        The action was raised in September 2005, over 13 years after the pursuer’s birth.  It was almost immediately sisted by the pursuer for investigations.  The sist continued until November 2011 (over 6 years).  Had the case progressed at a reasonable pace, it ought to have been concluded in the Outer House long before even the latter date.  On 16 February 2012, it was appointed to a Procedure Roll debate in October 2012.  Shortly before that, the pursuer lodged a Minute of Amendment.  After the amendment process, a proof before answer was allowed and the normal timetable was set for the exchange of expert reports, witness lists and valuations.  A pre-proof meeting was scheduled for 14 November 2014.  The proof, which lasted 21 days, commenced on 6 January 2015.  On 4 February 2015, the pursuer amended the conclusion by increasing the sum sued for tenfold from £1.5m to £15m.  The proof concluded on 18 February 2015, when the Lord Ordinary made avizandum.

 

The Pursuer’s Averments on Record
[4]        The pursuer’s mother had had a child by emergency caesarean section in 1990.  On 29 November 1992 (sic 1991), when she was about 28 weeks pregnant with her second child, namely the pursuer, she had a pre-natal meeting with Prof Whitfield.  He made a note, as follows:

“X-ray pelvimetry reveals small measurements, but with good uterine action and a not large baby not ‘impossible’.  Reassess later (? 38/7 and see X-rays) probably allow labour”.

 

An additional note said: “Allow labour but watch for non-rotation of occiput.” 

[5]        At 7.10pm on 1 March 1992, the pursuer’s mother was admitted to the labour suite of the Hospital.  At 9.50pm she was reviewed by a Dr Scott, who carried out a vaginal examination.  At about 10.10pm, her nursing care was taken over by a student midwife.  At about 11.00pm, the registrar, namely Dr Umstad, recommended that a Syntocinon infusion be “carefully” commenced, although it was not administered at that stage.  At 00.10am a second vaginal examination took place.  Dr Umstad saw the pursuer at about 1.00am and instructed the commencement of Syntocinon, which then occurred.  It was well recognised that the use of Syntocinon in parous women, such as the pursuer’s mother, carried a serious risk of over stimulation of the uterus and consequent rupture.  The risks were greater in a woman who had a previous uterine scar.  The fact that she had previously had a caesarean section, and Prof Whitfield’s note that the pelvic capacity might be suspect, were factors which had been identified as making labour a process to be undertaken with care.

[6]        By 2.00am the Syntocinon had been increased to the maximum dose.  It caused the pursuer’s mother to suffer a ruptured uterus at about 3.45am.  She required to undergo an emergency caesarean section.  The pursuer was delivered at about 4.10am.  She had suffered sustained acute profound asphyxia caused by the uterine rupture.  It resulted in severe athetoid cerebral palsy. 

[7]        The averments of fault focused first on the negligence of Dr Umstad in instructing the administration of Syntocinon at 1.05am.  If it had been appropriate to commence Syntocinon, he had failed to put a management plan in place.  He had failed to review progress from 00.10am until about 3.45am and in particular had failed to carry out, or to instruct a midwife to carry out, a vaginal assessment at about 2.00am and at about 3.05am.  The Syntocinon infusion ought to have been suspended while such assessments took place. 

[8]        The averments secondly focused on the fault of the midwifery staff.  The midwife in charge had failed to allocate a qualified midwife to supervise the student midwife.  The midwives, like the registrar, knew or ought to have known of the risks caused by the use of Syntocinon and that the labour was to be undertaken with care.  They ought to have stopped or reduced the Syntocinon and sought review by a more senior midwife, or a member of the medical staff, at or around 3.05am. 

 

The Proof
[9]        At the proof, the Lord Ordinary heard evidence from the pursuer’s mother and father, the senior sister midwife, another sister midwife, a tutor of the student midwife, and experts in obstetrics (Dr Milne) and midwifery (Dr Whitford) for the pursuer.  Dr Umstad, who flew in from Melbourne, was called for the defenders.  An expert obstetrician (Prof Murphy) was also adduced.  Prof Whitfield, who was 88 at the time of the proof, did not give evidence.  It was explained at the hearing of the reclaiming motion that he was suffering from dementia.  The student midwife had been killed in a road traffic accident in 2013. 

[10]      The Lord Ordinary’s findings were contained in an opinion which accompanied his interlocutor assoilzing the defenders dated 12 February 2016.  The pursuer’s mother’s initial booking records, completed by Prof Whitfield, were dated 16 and 20 August 1991 (not, as averred, 29 November 1992).  They record, in red ballpoint, the decision averred (supra) to “probably allow labour”.  A letter written to the pursuer’s mother’s GP at that time stated that Prof Whitfield considered that the “relatively small pelvis” was not an “absolute bar to a trial of labour”.  He thought that “there is a reasonable if optimistic chance that labour and delivery may be normal”.  Significantly, for present purposes, he then wrote:

“I do not think that we should avoid that chance and she and her husband are in complete agreement with that.”

 

A later clinical assessment of the pelvis was anticipated.  The principal of the letter, recovered from the GP’s files, contains handwritten corrections to the typescript and a postscript as follows:

“I have now seen the X-ray films, & still consider we should allow labour, but intervene (c/section) of course if there is a significant ‘hold up’.”

 

Again of importance for present purposes, the pursuer’s mother had 8 more ante-natal hospital attendances prior to 1 March 1992.

[11]      The Lord Ordinary found that Dr Umstad, who was the registrar with responsibility for the pursuer’s care once he had seen her, for the first time, at 10.00pm on 1 March 1992, had correctly interpreted Prof Whitfield’s advice.  With hindsight, spontaneous vaginal delivery would have been unlikely, but that was not known at the time and “no fault attaches”.  The case against Dr Umstad failed.  His decision to augment the labour with Syntocinon had been within the range of responsible treatment options. 

[12]      The Lord Ordinary found that the permitted regime had been carefully implemented by the student midwife.  The pursuer’s case had to be that the rupture had occurred as a result of overstimulation after 3.05am.  The Lord Ordinary’s conclusion was that there was no hyper stimulation of the uterus at any time and no basis for inferring that it had occurred during the period leading up to the rupture at 3.45am.  The case against the midwives had not been made out.  It was not supported by the pursuer’s own expert.

[13]      The Lord Ordinary, applying the test in Hunter v Hanley 1955 SC 200, concluded that there had been no breach of duty by the midwifery or obstetric staff.  Prof Whitfield’s labour plan had been a reasonable one and the labour had been managed responsibly in accordance with the plan.

[14]      It was recognised that there was an increased risk of uterine rupture where there had been a previous caesarean section.  However, it was very low (3.5 per 1,000 for vaginal birth after caesarean (VBAC) versus 1.2 for 1,000 elective repeat caesarean section (ERCS)).  The consensus view in the US and UK was that vaginal birth should be encouraged because caesarean section carried its own risks.  In particular, the risk of maternal death was increased.

[15]      The Lord Ordinary had offered the pursuer the opportunity to re-cross Dr Umstad on birth plan options under reservation, but the evidence turned out to be “uncontroversial”.  He held that uterine rupture was a very rare complication overall and a very slightly less rare complication of VBAC, though not necessarily in high volume centres of excellence.  He determined that he was not in a position to make a finding about any association between augmentation with Syntocinon and uterine rupture in VBAC, still less about any causal connection.

 

Minute of Amendment
[16]      In March 2015, after the proof had closed, but in advance of the Lord Ordinary’s decision on the merits, the pursuer lodged another Minute of Amendment.  This sought to add new articles of condescendence relating first to the consultation with Prof Whitfield, which had taken place, according to the Minute of Amendment, on 29 November 1992 (supra).  It was averred that, at that time, there were a number of known risks in a “trial of labour”, including uterine rupture.  Such a rupture was a “catastrophic”, potentially fatal, event.  It would not occur were there to be an ERCS.  The pursuer’s mother had not been advised at any time by Prof Whitfield “or any other medical practitioner” that a rupture could be avoided by an ERCS.  There had been no discussion about the risks of VBAC or the option of ERCS.  The pursuer’s mother had not been advised, during labour, of the potential additional strain on the uterus caused by Syntocinon.  Had the pursuer’s mother been advised of the risks of a VBAC, she would have had an ERCS and thus avoided any rupture.  “All medical staff” had been under a duty to discuss all material risks of all options for treatment so that the patient could make a choice.  There followed a somewhat cryptic averment that:

“Reference is made to GMC Guidance from 1995 onwards and to the publicly stated position of the GMC in the [United Kingdom] Supreme Court appeal Montgomery v Lanarkshire Health Board ... the position of the GMC is that the obligation to discuss risks with the patient has existed for decades and, in any event, was extant at the times material to this action”.

 

[17]      The Lord Ordinary heard the motion to allow the Minute to be received on 26 May 2015.  It was only on 18 December 2015 that he announced his decision to refuse the motion; giving detailed reasons for doing so.  These take some time to isolate and separate from amongst the discursive content of his Opinion.  However, they commence with a statement that the amendment proposes a new case, based on a failure to disclose risks.  This was a “radical change of front” which contradicted or undermined the case which was then at avizandum.  It put matters in a way which was not in accord, in relation to risk, with the testimony given at proof.  It presupposed only two birth options, whereas the one recommended by Prof Whitfield had been of an intermediate nature.

[18]      The motion had been made 23 years after the birth, 10 years after the action had been raised, 2 years (sic) after the expiry of the triennium (Prescription and Limitation (Scotland) Act 1973, s 17), 6 years after the pursuer had closed her proof and a month after the case had been at avizandum.  It was a fortnight after the expiry of the quinquennial prescriptive period for reparation actions generally (1973 Act, s 6).  The Lord Ordinary erroneously took the commencement of the limitation and prescriptive periods to be the pursuer’s 18^th rather than her 16^th birthday, but little turns on this.

[19]      The Lord Ordinary recognised that whether to allow amendment in order to determine the real question in controversy (RCS 24.1) was a matter for his discretion, subject to certain constraints where time limits were involved (Gray Aitken Partnership v Link Housing Association 2007 SC 294; Perth and Kinross Council v Scottish Water 2015 SLT 788).  He rejected the pursuer’s contention that, were the motion to be refused, she could raise a separate action, given the “one action rule” (Smith v Sabre Insurance 2013 SC 569).  He thought that the quinquennial prescriptive period might be applied, although he “parked” this issue as it had not been raised by the parties.  The new case would be time barred, if raised in separate proceedings, even if the pursuer had not been aware of its nature until Montgomery v Lanarkshire Health Board 2015 SC (UKSC) 63 (David T Morrison v ICL Plastics 2014 SC (UKSC) 222).

[20]      The Lord Ordinary considered whether there was a reasonable explanation for introducing the new case at such a late stage.  He asked himself whether a reasonably competent lawyer would have appreciated, in advance of Montgomery, that a “risk disclosure case” was available.  He considered that such a lawyer would have so appreciated, having regard to the “entrenched tract of authority” supporting such a case (eg Sidaway v Bethlem Royal Hospital [1985] AC 871 (minority) applied in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR p 53; Jones v North West Strategic Health Authority [2010] Med LR 90 and Chester v Afshar [2005] 1 AC 134).  “Any canny Scots pleader would have taken note”.

[21]      If amendment were allowed, the proof would “have to be re-opened”.  In relation to the scope of that proof, the Lord Ordinary noted that, while the Minute sought to blame Prof Whitfield and other unspecified medical practitioners, he had been told in submissions that, although both Dr Scott and Prof Whitfield were to blame, although neither had featured in that role to date, the “main target” was Dr Umstad.  Even if a Montgomery patient autonomy case did not require to be supported by an expert witness, there still had to be an expert to prove the various birth plan options, the recommended course and the alternatives at the time and the risks involved.  The pursuer had no such expert to support this case.

[22]      It was for the pursuer to put forward a convincing and detailed argument for amendment at this stage of the litigation.  The pursuer’s submissions had not been based on a realistic assessment of the scope of any proposed additional proof.  Averments advancing a 1973 Act section 19A application were to be expected.  The authorities tended to presume prejudice when amendment was essayed after proof (Thomson v Glasgow Corporation 1962 SC (HL) 36; Greenhorn v J Smart & Co (Contractors) 1979 SC 427).  A preliminary proof on time bar would be required (Donald v Rutherford 1984 SLT 70) even though the matter was being considered in the context of an amendment (Ferguson v J & A Lawson (Joiners) 2015 SC 243).  Questions of relevancy had to be addressed.  Comparisons could be made with applications to recall a witness or to allow evidence of res noviter (Rankin v Jack 2010 SC 642).  The Lord Ordinary noted the pursuer’s growing pessimism about the outcome of the proof when conceding that the new case was “the only robust one”.

[23]      After all of this, the Lord Ordinary encapsulated his reasoning for refusing to allow receipt of the Minute of Amendment in the following succinct single paragraph:

“[51]    Weighing all considerations my decision is that the pursuer’s motion to allow the minute to be received and answered must be refused.  The fact that the pursuer suffers from an injury of maximum severity weighs heavily on her side of the argument.  On the other side the pursuer has had the benefit of legal advice and representation from practitioners, both solicitors and advocates, experienced in this area of litigation; for the reasons given above the decision of the Supreme Court in Montgomery does not have the decisive effect claimed for it; in the absence of acceptable information to the contrary, I have to conclude that the pursuer has had ample opportunity to state and prove her claim; if amendment were to be allowed there would be re-litigation of the case; and what is proposed on the pursuer’s behalf conflicts with the principle of finality, qualified though the principle may be in its practical application by the terms of RCS 24.1(1) and by the excepting and relieving provisions of the ... 1973 Act ...  On balance I am not persuaded that it is reasonable, equitable and in the interests of justice to allow the new case to be added at this stage or indeed to allow the procedure to be taken further.  In this event I am asked to granted leave to appeal, which I readily do.”

 

[24]      Leave to reclaim was thus afforded to the pursuer.  She had 14 days to mark a reclaiming motion.  She did not do so.  This was a deliberate decision.  It was explained at the Bar that, at that time, the Lord Ordinary’s decision had been anticipated imminently (the case having been at avizandum for almost a year).  Senior counsel’s advice had been taken relative to RCS 38.6(1) which provides for the review of interlocutors issued prior to the one reclaimed.  Apparently it was thought that, if the pursuer lost, a reclaiming motion could then be enrolled to challenge the refusal to receive the Minute of Amendment.  Just what competent procedure was anticipated thereafter will be considered later.

 

Grounds of Appeal and Submissions
Pursuer
[25]      It is a striking feature of the pursuer’s submission that, although the reclaiming motion seeks review of the interlocutor of 12 February 2016 granting decree of absolvitor, there is no criticism of any aspect of the Lord Ordinary’s reasoning relative to the merits of the case after proof.  The only challenge is to the refusal to receive the Mintue of Amendment on 18 December 2015.  The contention was that the Lord Ordinary should have allowed receipt and permitted the defenders to lodge answers.  He had exercised his discretion in an unreasonable manner, erred in both fact and law, failed to give “due weight” to certain factors and given excessive weight to others.  The Lord Ordinary’s decision was not beyond challenge (Thomson v Glasgow Corporation 1962 SC (HL) 36; McGhee v Diageo 2007 SLT 1016).  The principles were those set out in Perth and Kinross Council v Scottish Water 2016 SLT 1251. 

[26]      The Lord Ordinary had erred in particular: (1) in stating that no adequate explanation had been offered for the failure to plead a risk disclosure case previously.  Prior to Montgomery v Lanarkshire Health Board (supra), there had been no responsible basis for pleading it and no expert support for it; (2) in stating that Montgomery did not have the decisive effect claimed and that the pursuer had had ample opportunity to present the risk disclosure case.  There had been no basis for arguing that the pursuer had suffered a legal wrong until then, whereas the pursuer now had a strong or excellent case and it was just and proper to allow her to present it against the wrongdoer; (3) in finding that allowing amendment would result in re-litigation of the case. The new issues were narrow and, in the absence of answers, the Lord Ordinary had not been in a position to say what he did.  Any factual matters remaining to be resolved were minor.  Prof Whitfield’s unavailability was a common issue in cases of this kind.  The onus of proving that the pursuer’s mother would have elected for a section ought to be on the defenders (Zurich Insurance Co v Hayward [2016] 3 WLR 637); (4) in stating that the amendment would breach the principle of finality.  That was only relevant when litigation was final and not as here; (5) in his interpretation of David T Morrison & Co v ICL Plastics 2014 SC (UKSC) 222 that once a person knew that an event had occurred, time started running even if the nature of the wrong was not understood; (6) in considering the quinquennial prescriptive period; (7) in failing to give sufficient weight to: (a) the stage of the application, notably that all the pursuer wanted was to have the Minute received; (b) the value of the claim; and (c) the absence of an alternative remedy, as it could not be said that no counsel of ordinary skill and competence would have failed to plead a risk disclosure case; and (8) in considering that factors relevant to an application of section 19A of the 1973 Act ought to have been averred when no time bar plea had yet been introduced. 

[27]      Montgomery v Lanarkshire Health Board (supra) was a statement of what the law had always been (Deutsche Morgan Grenfell Group v IRC [2007] 1 AC 558 at para 23).  There had to be some identifiable prejudice to a party opposing amendment (Gray Aitken Partnership v Link Housing Association 2007 SC 294).  The pursuer’s claim was not time barred.  Even if it was, having regard to the loss of a strong and valuable claim through no fault of the pursuer or her advisers, the interests of justice were such that amendment should be allowed.

 

Defenders
[28]      An appellate court should not lightly interfere with the decision of a judge at first instance exercising a discretion (Thomson v Glasgow Corporation 1962 SC (HL) 36 at 66; Chalmers v Chalmers 2015 SLT 793 at 798).  No reason had been shown to justify interfering with the Lord Ordinary’s decision.  The Minute of Amendment was extremely late.  The new case was a radical change of front.  It involved amendment after the expiry of the triennium, which would have expired three years after the pursuer had reached the age of 16 (Age of Legal Capacity (Scotland) Act 1991, s 1(1) and (2); 1973 Act, s 17(3)).  The amendment came four years after the expiry of the triennium.  It was recognised that the five year prescriptive period applicable to reparation cases did not apply to personal injury litigation (1973 Act, s 6; see schedule 1, para 2(g)) but the Lord Ordinary had not founded on this.

[29]      The Lord Ordinary had identified a clear line of authority, which would have justified pleading a risk disclosure case at an early stage.  The pursuer could have put the case on record and sisted the cause pending the outcome of Montgomery.             The Lord Ordinary had not erred in determining that the case would have to be re-litigated.  A risk disclosure case would require additional proof.  Fresh evidence would be needed on what the pursuer’s mother had been told about the risks of, and alternative approaches to, delivery, what risks were known to the obstetricians at the material time and what difference it would have made if the pursuer’s mother had been given different information about risks and alternative options. 

[30]      The Lord Ordinary had not erred in relation to the issue of finality (see Mulholland v Mitchell (No. 1) [1971] AC 666 at 681).  He had only regarded this as a factor and not as a rigid or inflexible rule. 

[31]      The Lord Ordinary had not erred in relation to time bar.  The context of his reference to David T Morrison & Co v ICL Plastics (supra) was his consideration of whether the amendment should be allowed, given that any new case would have been time barred if raised in separate proceedings.  The court will not, in general, allow a party, by amendment, to change the basis of his case after the expiry of a time limit (Pompa’s Trs v Edinburgh Magistrates 1942 SC 119 at 125) even if whether to allow an amendment remained a matter of discretion and not competency (O’Hare’s Extx v Western Heritable Investment Company 1965 SC 97 at 104).  The Lord Ordinary had been correct in his interpretation of awareness in the context of section 17. 

[32]      Sufficient weight had been given by the Lord Ordinary to the relevant factors.  He had noted that the application was simply for the Minute to be received, but it was self-evident that its introduction after proof amounted to a radical change of front.  The Lord Ordinary had considered that the pursuer had a valuable claim, which would be without remedy in the event of the amendment being rejected.  The question of whether the pursuer had a remedy against her solicitors had not been put before the Lord Ordinary. 

[33]      The Lord Ordinary had been entitled to take the approach that the pursuer ought to have pleaded factors relevant to a section 19A exception.  It is well established that a party seeking to amend at a late stage requires to persuade the court to exercise its discretion in favour of allowing a new case to be introduced, notwithstanding the expiry of the time bar.  The defender’s grounds of opposition to the motion had made it clear that time bar would be a live issue.  It would have been entirely artificial for the Lord Ordinary to have proceeded on the hypothesis that no time bar plea would be tendered. 

[34]      Even if the Lord Ordinary could be shown to have erred in the exercise of his discretion, the result which he reached had been the correct one.  The Minute had been very late.  Its timing had adversely affected the ability of the respondents to investigate any new grounds of fault.  Prof Whitfield was not in a condition to shed light on the decision to proceed with a vaginal birth over and above what was stated in his notes.  The pursuer had already encountered difficulties at the proof, on account of a shortage of witnesses who could speak to the labour.  She was now seeking to raise questions about events in the months leading up to that event.  That would be even more difficult, if not impossible, to investigate. 

[35]      The averments in the Minute were irrelevant and lacking in specification.  No fair notice had been given as to what ought to have been explained to the pursuer, when and by whom. 

 

Decision
Appropriateness of Review
[36]      RCS 38.6(1), which echoes the repealed section 52 of the Court of Session Act 1868, provides that “a reclaiming motion shall have the effect of submitting to the review of the Inner House all previous interlocutors of the Lord Ordinary”.  The original phraseology in section 52, that its purpose was to enable the court “to do complete justice”, was omitted when the statutory provision was converted into a rule, but its content is no doubt still apposite. 

[37]      In McCue v Scottish Daily Record and Sunday Mail 1998 SC 811 a Full Bench reviewed the authorities on the effect of this provision.  It was recognised (LJC (Cullen), delivering the Opinion of the Court, at 814-5) that the rule did not mean that “the court would necessarily review a prior interlocutor whenever this was sought by one or other of the parties”.  The scope for review is limited.  One important restriction is where the prior interlocutor had been acted upon as a basis of future proceedings.  Thus in Copeland v Wimborne 1912 SC 355, where an interlocutor appointing a proof had not been reclaimed within the period permitted by the rules, it thereby became final. 

[38]      Cumpstie v Waterston 1933 SC 1, endorsed (LJC (Alness) at 6) the principle derived from Copeland, that:

“in the case of an interlocutor against which a reclaiming note must be taken within a specific time…, if a reclaiming note is not taken within that time, the interlocutor is not brought up for review by a subsequent reclaiming note”,

 

Such an interlocutor becomes final “by implication” (see also Macaskill v Nicol 1943 SC 17).  The matter is put succinctly by McLaren: Court of Session Practice (at 947) as follows:

“Where a prior interlocutor is expressly or by implication a final interlocutor, a reclaiming note against a subsequent interlocutor does not submit the prior interlocutor to review”.

 

This passage was expressly approved in McCue v Scottish Daily Record and Sunday Mail (supra at 821).

[39]      Despite the reservations about the use of the term “acquiescence” in Young’s Ex v Peebles 1997 SC 309 (Lord Coulsfield, delivering the Opinion of a Full Bench, at 314-315), and accepting that, as a pure matter of competency, the court may review a prior interlocutor at least when it bears upon the merits of the case as disposed of in the final interlocutor (cf John Muir Trust v Scottish Ministers [2016] CSIH 61 LP (Carloway) at para [57]), as was said in McCue (at 821), where a party has proceeded, or knowingly allowed the other party to proceed, on the basis that an interlocutor is not challenged, it may be that the court will not countenance a review of that interlocutor.  As it was put in Telfer v Buccleuch Estates 2013 SLT 899 (Lord Brodie at para [42]):

“…on the                                   appeal of a final judgment, a prior interlocutor may or may not be open to review.  It is not a matter of competency. It is a matter of whether the appellate court considers the interlocutor should be subject to review in all the circumstances.  If it is purely procedural or otherwise seen to be final or spent it may be that it will be held not subject to review.  On the other hand, if it continues to be linked to, or is directly influential in the order which is the subject of a timeous challenge then it may be subject to review”.

 

[40]      As a generality, so far as the procedural steps in the Outer House are concerned, this court will not normally review an interlocutor in which parties can be seen to have, in essence, acquiesced.  In this case, the pursuer’s motion to amend had been refused by the Lord Ordinary.  It was not reclaimed despite the fact that leave had been given to do so.  Had it been reclaimed, the matter would have been before this court and no further steps could have been taken in the Outer House until this court had ruled on the matter.  No final interlocutor could have been pronounced while the cause was depending in the Inner House.  Any review of a decision to refuse to allow a Minute of Amendment to be received could have been heard quickly on the Single Bills.  That is not what was done.  Instead, for whatever reason, a conscious decision was taken not to reclaim.  In these circumstances, the Lord Ordinary proceeded to issue his decision on the merits on the basis of the existing pleadings and proof.  That was some six weeks after the decision to refuse receipt of the Minute.  In these circumstances, the pursuer must be taken, looking at the matter objectively, to have acquiesced in the interlocutor refusing the amendment and, in effect, permitting the Lord Ordinary to proceed to judgment.  Put another way, the interlocutor refusing to allow the Minute to be received had become, by inference, final.  On this basis alone, this reclaiming motion must be refused.

[41]      It is important to keep in mind that, where a final interlocutor has been pronounced in the Outer House and that interlocutor is reclaimed, the matter is then in, and must remain in, the Inner House for the purpose of review.  The proof in the Outer House cannot be re-opened and the, or another, Lord Ordinary asked to reconsider the case on amended pleadings.  If this court were to hold that the Lord Ordinary had erred in refusing to receive the Minute and the pleadings were amended, it would be for this court to hear any additional proof (see Court of Session Act 1988, s 37;  see eg Hewat v Edinburgh Corporation 1944 SC 30).  It would then have to re-assess the case on the totality of evidence, including the testimony heard by the Lord Ordinary.  Whilst this may have to be done in certain circumstances, such as where evidence has been wrongly excluded in the Outer House or new evidence or facts have come to light, the exercise is not an easy one.  Although the overriding consideration remains the interests of justice, finality is an important element of those interests.

[42]      The court “must be very slow indeed to reopen a proof in circumstances in which not only has the proof been concluded when both parties to the proof were legally represented, but the court has issued its judgment determining all the matters ventilated at the proof (Ralston v Secretary of State for Scotland 1991 SC 336, Lord McCluskey, delivering the Opinion of the Court, at 341-2 following Coul v Ayr County Council 1909 SC 422, LP (Dunedin) at 424).  Against that background, coupled with failure to reclaim, it would have required a compelling case indeed to persuade this court to allow amendment in this case at this stage.  Nevertheless, the court will consider whether the Lord Ordinary erred in his discretion to refuse to receive the Minute prior to judgment.

 

The Refusal to receive the Minute

[43]      The Rules of Court provide for the orderly progress of an action in the Outer House from summons to disposal.  Amendment of pleadings is permitted in terms of RCS 24.1 (formerly the 1868 Act, s 29) at the discretion of the Lord Ordinary having regard to the interests of justice.  That was said (at 51) as a preamble to the Lord Justice Clerk’s (Thomson) observations on procedure, including amendment, in the locus classicus, namely Thomson v Glasgow Corporation 1962 SC (HL) 36.  The Lord Justice Clerk stressed the adversarial nature of proceedings and how cases are prepared for proof, remarking that: “It is on the basis of two carefully selected versions that the Judge is finally called upon to adjudicate” (emphasis added).  After further comment upon the essential nature of rules as a means of ensuring fairness, he continued (at 52) with a lengthy passage which is worth rehearsing in full:

“… when the expediency of allowing an amendment comes up for consideration we have to consider, in the light of the structure within which our system works and in the light of the whole history of the case to date, whether allowance will operate to give the amender an unfair advantage over his opponent.  On the theory of our procedure, the closing of the record is still a crucial step as it marks the borderline between pleading and proof.  After that, procedure by amendment operates, and presumably and generally operates to the prejudice of the other party, but however the situation would have been viewed before 1868, that prejudice is not now regarded as unfair, as the other party is regarded as compensated by an award of expenses.  Amendment is, in theory, a belated adjustment for which the laggard has to pay.  Where the amendment is made before there has been inquiry into the facts there is no difficulty.  A party can on terms restate his case, aver further and even different facts, add new and different grounds of action and so forth.  This is all regarded as further adjustment on terms.  One is familiar with amendments following on relevancy debates, whether in the Outer or Inner Houses, which put a very different complexion on one side’s presentation and lead to that side’s gaining a victory which would have been impossible on the original presentation.  But very different considerations may arise where inquiry into the facts has begun, and the parties have passed from pleading and have committed themselves to the leading of evidence.  Thereafter, allowance of an amendment becomes increasingly difficult in proportion to the significance and the extent of disclosure of the facts of the other side’s case.  It is all a matter of circumstances depending on the degree to which the parties have committed themselves, but in general, once there has been inquiry, each party can be expected to commit itself wholeheartedly to the contest, manoeuvre its forces and uncover its batteries.  Each party is guided by professional advisers whose duty it is to do their best, by the exercise of diligence, skill and judgment, to win the fight, by demolishing the enemy and deploying their own resources in the most telling way according to the exigencies of the struggle.  The Judge is there to see that the struggle is conducted according to the rules and to decide the winner.  It is obviously quite inconsistent with the principles on which our litigations are conducted that it should be open to the loser to say, now that I know the strength and weakness of my successful opponent, I realise that I could have done much better if I had fired my batteries from a different place and deployed my troops in a different way.

            It cannot be right as a general rule to allow a party to amend so as to take advantage of what his opponent has, in reliance on the closed record, legitimately put forward in support of his own case, and to convert defeat into victory by having a new battle in the light of the fresh knowledge of the victor’s resources which he gained on the stricken field.”

 

[44]      Although the military metaphors may be seen as inconsistent with modern ideas of fair trial, the Lord Justice Clerk’s observations largely hold true today, with two qualifications.  First, in many cases, and this is one, the laggard may not be able to pay the expenses and that important element may drop out of the equation.  Secondly, in the modern era, there is an obligation on the court to ensure that a case is concluded within a reasonable time.  In effect there is a duty laid upon the court as a public institution (Human Rights Act 1998 s 6(1)) to police the reasonable time requirement in Article 6 of the European Convention.  It cannot sit back and await an application from one of the parties (see RCS 21A).  If the court considers that the allowance of an amendment is likely to cause substantial delay in the conclusion of the action, it will have to take this factor into account in deciding whether to allow amendment procedure to commence.

[45]      The Lord Ordinary’s reasoning, when distilled, was that, whereas the pursuer did have a substantial claim which (at that time) might not, and now cannot, succeed without amendment, the amendment was a radical change of front, which, to a degree, contradicted the existing case and came very late in the process, after limitation of actions would have operated, had the case been initiated by summons at that date.  It is true that his reference to prescription was erroneous, since the quinquennial prescription does not apply to personal injury cases (Prescription and Limitation (Scotland) Act 1973 sch 1 para 2(g)), but he expressly did not take this into account in his decision.  He also made an error in calculating the triennium from the date of the pursuer’s 18^th birthday, when the correct date was now a pursuer’s 16^th birthday (1973 Act s 17(3); Age of Legal Capacity (Scotland) act 1991 s 1).  This, if anything, favoured the pursuer. 

[46]      The Lord Ordinary’s analysis of amendment in the context of time bar was correct.  In straying unnecessarily into the law of prescription, his reference to David T Morrison & Co v ICL Plastics 2014 SC (UKSC) 222, may have been otiose, but there is no doubt that any claim which the pursuer had in relation to the personal injuries sustained at her birth became time-barred on the third anniversary of her 16^th birthday.  The fact, that she was unaware that she had a case in law based upon a failure to disclose the risks of the procedure to her mother, is irrelevant (1973 Act s 22(3)).  It is well established that the allowance of an amendment introducing a “radical” new case outwith the triennium, remains a matter for the discretion of the court (Sellars v IMI Yorkshire Imperial 1986 SC 235 LJC (Ross) at 244).  In such circumstances, however, the court “may well exercise its discretion so as to refuse to allow the amendment” (ibid).  It is thus a particularly important factor in the equation.  As was said in AS v Poor Sisters of Nazareth 2008 SC (HL) 146 (Lord Hope at para [5]):

“…limitation periods… are the product of the judgment of the legislature as to where the interests of justice lie in the case of delayed claims in the civil courts… [W]here there is delay the quality of justice diminishes.  Witnesses may have died, memories may have become dimmed and relevant documents may have been destroyed or lost. As time goes on these effects may become less easy to detect, and this in itself is apt to produce injustice.  … [T]he public interest requires disputes to be settled as quickly as possible.  A judgment has been made by the legislature where the balance lies between the demands of justice and the general welfare of society.  The responsibility of the courts is to give effect to that judgment”.

 

[47]      As a generality, a party will not be allowed to amend where, in substance, he is seeking to make a new case outwith the limitation period.  This is because to allow such an amendment would deprive the defender of his defence under section 17 of the 1973 Act; the policy of which is “to protect defenders against stale claims which after the passage of time would be difficult to investigate and resist” (Greenhorn v J Smart & Co (Contractors) 1979 SC 427 LP (Emslie) at 431-2).  This, of course, is all subject to the power of the court, encapsulated in section 19A of the 1973 Act, which was introduced in 1984, to allow such a case “if it seems…equitable to do so”.  That is a remedy already available in the context of an amendment to an existing case. 

[48]      There is no error in the Lord Ordinary’s assessment of the impact of Montgomery v Lanarkshire Health Board 2015 SC (UKSC) 63, in so far as it relates to liability arising as a result of the failure to advise a patient of the risks attached to a particular procedure.  The pursuer could have pled such a case at a stage well before the proof had commenced upon the same basis as was in fact pled in Montgomery, which was advised in the Outer House in 2010.  The dictum in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR p 53 (Lord Woolf MR at 59) was clearly supportive of such a claim.  Whether such a case ought to have been pled is quite another matter.  It would have had the potential to undermine seriously the pursuer’s existing case and a tactical decision not to change the basis of that case would have been entirely understandable.  Furthermore, contrary to the pursuer’s contentions, on the information presented to the court, the new case is not a strong one in fact.  Whatever the position of the pursuer’s mother and father may be on precognition, it is apparent from the letter written by Prof Whitfield to the pursuer’s mother’s GP on 20 August 1991 that the issue of whether to proceed to a VBAC or by way of an ERCS was discussed with the pursuer’s mother and father; hence the reference to their agreement.  It is difficult to conceive that this discussion did not touch upon the relative risks.

[49]      The court agrees with the defenders’ contention that, as averred in the Minute of Amendment, the case is an irrelevant one due to a lack of specification.  All that is averred, in relation to the plan to trial a VBAC, is a failure to advise of the risks of a VBAC and that, had the pursuer been aware of them, she would have opted for a ERCS.  The duty on the medical staff would, however, have been to discuss the relative risks of both procedures.  The issue has to be what ought to have been disclosed by way of risk and what the pursuer’s mother would have done had she been told of the relative risks.  It is important to have in mind the Lord Ordinary’s interpretation of the evidence that the decision to trial the VBAC was a reasonable one.  If the criticism is to focus not upon the original birth plan but upon what happened once the pursuer was in labour, it is difficult to see how a case of a failure to disclose risks then could be advanced against Dr Umstad, who was apparently newly on the scene and, as a registrar, was following the plan set out by the consultant.  Whatever the position may be, the new case is at best weak and at worst irrelevant.   

[50]      Although, at an early stage of a litigation, a party might not be expected to aver a complete case when tendering a Minute of Amendment foreshadowing a change of tack, at the stage at which the pursuer sought to amend in this case (ie after proof), it is incumbent upon the amender to make clear averments of the new case.  Equally, where, as here, time bar is clearly going to be an issue, it is incumbent upon him to explain in his averments why the new case should be permitted upon an equitable basis.  On both these points, the court agrees with the Lord Ordinary’s approach.  Although he might have awaited Answers containing a time bar plea, and subsequent adjustment of the Minute, there was no obligation upon the Lord Ordinary to do so, if he felt it to be unnecessary for his decision.

[51]      The Lord Ordinary was correct in his assessment that the effect of allowing the amendment would be the re-litigation of the case after proof.  The pursuer’s assessment of the extent of the additional proof is not realistic.  What is now proposed to be averred is a case stemming not only from the labour but also from advice which was tendered in the months before the birth, notably that of Prof Whitfield in August 1991.  There are 8 other pre-natal meetings to explore along with the consultation with Dr Scott when the pursuer’s mother was first examined at Yorkhill on the day before the birth.  The defenders, and in due course the court, would be required to investigate cases of negligence against both of these doctors, neither of whom has been blamed hitherto, more than a quarter of a century after the event. There is clear prejudice to the defenders in these circumstances along the lines already set out in the passage quoted from Thomson v Glasgow Corporation (supra).  It is important to bear in mind, in this context, the length of time which this case has already taken.  It ought to have been concluded years ago and the failure to progress it at a reasonable pace has seen the death of the student midwife and, for aught yet seen, the deterioration in Prof Whitfield’s mental state.

[52]      The court is unable to find fault in the Lord Ordinary’s exercise of his discretion.  He directed himself to the correct legal test of the interests of justice, took into account all the relevant factors, did not take into account any irrelevant factors and reached a sound decision on the material presented to him.  The reclaiming motion must fail on this basis also.  Even if the court had identified an error in the Lord Ordinary’s decision, the court would, in exercising its own discretion, have reached the same result, especially as the Lord Ordinary’s decision on the merits has now been issued and, on the material before him at proof, not the subject of criticism.  The amendment is tendered very late, with no adequate reason being advanced for doing so.  Its receipt would prompt further delay in a case which has already gone on for far too long.  It would cause the defenders significant prejudice, even if, on the other side of the scales, the pursuer’s case must hereby conclude.