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GLASGOW CITY COUNCIL AGAINST FIRST GLASGOW (NO 1) LTD [2022] ScotCS CSOH_9 (27 January 2022)
URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022_CSOH_9.html
Cite as:
2022 SLT 164,
[2022] ScotCS CSOH_9,
[2022] CSOH 9,
2022 GWD 3-49
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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 9
CA64/19
OPINION OF LORD ERICHT
In the cause
GLASGOW CITY COUNCIL
Pursuer
against
FIRST GLASGOW (NO. 1) LTD
Defender
Pursuer: Smith QC, Gardiner; BLM
Defender: Dean of Faculty, Pugh; Clyde & Co (Scotland) LLP
27 January 2022
Introduction
[1]
On 22 December 2014 a bin lorry owned and operated by the pursuer crashed in the
centre of Glasgow at George Square. It was driven by the pursuer's employee Henry (also
known as Harry) Clarke. Mr Clarke suffered a vasovagal syncope immediately prior to the
incident. He maintained that he had suffered a faint, or blackout, causing him to lose
consciousness, the vehicle to lose control, and death and injury to pedestrians. A number of
claims were intimated to the pursuer by those injured and the families of those killed. The
pursuer reached settlements with the claimants but now seeks to recover the amount paid
under these settlements (including legal costs and expenses) from the defender, a previous
2
employer of Mr Clarke, on the ground of the defender's negligence in providing an
employment reference to the pursuer. The sum sued for in this action in respect of the
settled claims is £6,555,872.
[2]
This case raises difficult legal questions such as whether the giver of a reference owes
a duty of care to the recipient of the reference rather than just to the subject of the reference,
whether the giver of a reference who has received doctor's advice th at the subject of a
reference is fit to drive is nevertheless obliged to disclose unfitness to drive, and whether a
party who has a potential defence to a case but settles it anyway can recover from a third
party the amount paid in settlement.
[3]
There is however a prior question which is one of fact. Was a reference given at all,
and if so what did it say? The problem for the pursuer is that it has not produced the
reference. It could not find the reference, or any copy of it, in either its paper file or
electronic records. Nor does any copy of the reference exist in the defender's files and
records. No witness remembers seeing the reference or what it said.
[4]
Notwithstanding these difficulties the pursuer's case is that a reference was given to
the pursuer by the defender in the form of a particular standard form (App7) issued by the
pursuer which contained pre-printed questions and that the defender answered these
questions and in doing so acted negligently and made negligent misstatements.
Fatal Accident Inquiry
[5]
A Fatal Accident Inquiry was held into the incident ([2015] FAI 31). It is however
important to note at the outset that my decision in this case is based on the evidence which
was led before me in this case, and not on the findings of the Fatal Accident Inquiry. The
determination in the Fatal Accident Inquiry is inadmissible and may not be founded upon in
3
the current proceedings (Inquiries into Fatal Accidents and S udden Deaths etc (Scotland)
Act 2016 section 26(6)). In any event, the evidence available to me in relation to the reference
was fuller and more detailed than was available at the time of the FAI. For example, some
evidence from the pursuer's electronic records was not available until shortly before the date
originally set down for proof in this case, thus necessitating the proof to be discharged to
allow further investigation, resulting in the lodging of a substantial number of further
productions and expert reports
The pursuer's case
[6]
The pursuer's averments can be summarised as follows. It was the pursuer's
invariable practice to send previous employers an App7. Question 4 on the form asked
"Please give details of any sickness absence that the applicant has had in his/her last two
years of employment with you." Question 7 on the form stated: "Please give any other
relevant information about the applicant that you feel a prospective employer should be
aware of eg live disciplinary actions etc" Mr Clarke had been absent from work due to
illness after an incident on 7 April 2010 when he lost consciousness in his bus. The reference
was supplied by Frank McCann, or Robert Donnelly, or a member of the defender's human
resources staff or another employee. Mr McCann or another member of staff provided a
reference by completing the App7 but did not include the illness absence of state, nor that
the reason for absence had been a vasovagal attack, nor that Mr Clarke had suffered a
fainting fit and lost consciousness while in charge of a bus in April 2010. The defender
should have stated in response to question 4 that he had a period of sickness for about three
weeks and the reason for absence was vasovagal attack, and in response to Question 7 that
he had suffered a fainting fit and lost consciousness when in charge of a bus. If these
4
matters had been disclosed on the form Mr Clarke would have been suspended and
disciplined for dishonesty and it is likely his employment would have been terminated or he
would have been moved to a non-driving job.
[7]
At proof, the pursuer narrowed its case to the following:
(i)
In accordance with their usual procedures at the time, once a decision was
taken to engage Mr Clarke, but subject inter alia to appropriate references being
obtained, a request was sent by the pursuers' HR department to the defender's HR
requesting a reference.
(ii)
That was by post, sending a stamped addressed envelope and an App7.
(iii)
The App7 was received by Mrs Thompson and passed by her to Mr McCann.
(iv)
Mr McCann did not immediately return the form. At some stage Mr Clarke
was requested to chase the reference up. He did so, and was advised that the contact
point should be Darryl Turner. However, Mr Turner was never requested to provide
the reference.
(v)
Mr McCann did, however, provide the reference. He did so on the
App7 form.
(vi)
The App7 failed to mention the absences in April into May 2010. It is likely
that no mention was made at all of the absences.
(vii)
This gave the misleading impression, standing the terms of the question
posed, that there had been no absences whatsoever during the two years prior to
termination of employment with the defender.
(viii) Had the form not given that misleading impression, Mr Clarke would not
have been employed by the pursuer as he was a risk to them; and that risk was one
5
whereby the operator of a vehicle may pass out at the wheel and cause injury to
themselves and to others.
[8]
Senior counsel submitted that a duty of care is owed by the provider of a reference to
the recipient of a reference as well as to the subject of the reference (Spring v Guardian
The duty to both is that, where a reference is provided, the reference should be true and
accurate in all material respects and should not by omission be misleading on any material
matter. The provider of a reference is allowed to decline to provide a reference, or to
provide a reference which limits the information provided, as long as the first two principles
above are not breached. It was reasonably foreseeable that a driver who had fainted when
in charge of a bus might do so again and could cause loss, injury and damage to his
passengers and the general public and it was not necessary for the exact circumstances of an
accident to be foreseen (Hughes v Lord Advocate 1963 SC (HL) 31). By settling the claims the
pursuer had not failed to mitigate its loss (British Westinghouse-Electric & Manufacturing Co v
Underground Electric Railways Co of London 1912 AC 673): the pursuer had acted on advice
from senior counsel.
The defender's position
[9]
The defender's position was that in order to succeed the pursuer required to
overcome all of the following hurdles, but had overcome none of them.
(1)
Standing the failure to produce the reference upon which the action is
periled, the pursuer must establish that it may competently bring these proceedings
notwithstanding the "best evidence" rule.
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(2)
The pursuer must prove that it asked the defender to provide a reference, and
that the defender did so.
(3)
The pursuer must prove what any such reference said.
(4)
The pursuer must establish that the defender, in providing a reference, owed
a duty of care to the pursuer. Counsel submitted that the question of whether a duty
is owed to the recipient of a reference was a novel question (Spring v Guardian
Assurance [1995] 2 AC 296, Bartholomew v London Borough of Hackney). It was not fair
just and reasonable for such a duty to be owed (Robinson v Chief Constable of West
Yorkshire Police [2018] AC 736). There was no evidence that the pursuer asked the
defender for a reference or that it was addressed to the pursuer. The defender's pro
forma reference contains a clear disclaimer of legal liability. Former employers
would be deterred from giving references (AJ Allan (Blairnyle) Ltd v Strathclyde Fire
Board 2016 SC 304). Mr Clarke deceived both the defender and the pursuer, and
there is no duty of care to protect another from the wrongful actions of a third party.
A conflict of interest would arise if a duty was owed to both the subject and recipient
(5)
The pursuer must show that the scope of any such duty comprehended the
losses complained of in the present action (Caparo Industries plc v Dickman 1990 2
AC 605; Manchester Building Society v Grant Thornton UK LLP [2021] 3 WLR 81,
Meadows v Khan [2021] 3 WLR 147). Counsel submitted that if any duty of care rested
with the defender in providing a reference, the scope of the duty did not extend to
liabilities incurred by negligent driving four years after the reference was given, in
circumstances where the defender had not assumed a responsibility for the
7
subsequent deceitful conduct of Mr Clarke and an accident caused by driving nearly
four years later.
(6)
The pursuer must show that the losses complained of are not too remote
(Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2))
[1967] 1 AC 617; Meadows v Khan) . Counsel submitted that the defender was entitled to
rely on the advice from Dr Lyons. As the defender was entitled to accept at face
value the medical advice that Mr Clarke was fit to drive, with nothing reportable to
the DVLA, it could not be said that they should have foreseen he was unfit to drive
(McManus v City Link [2015] CSOH 178 at [73], Farraj v King's Healthcare NHS Trust
[2010] 1 WLR 2139) . The defender did not actually foresee that: in his exit interview
he was deemed appropriate to be re-hired in future.
(7)
The pursuer must show that any such duty was breached by the defender.
Counsel submitted that a reference in the defender's pro-forma would not be
negligent.
(8)
The pursuer must prove causation. Counsel submitted that on the evidence
of the expert witnesses it was not negligent to fail to disclose the April 2010 incident.
Further there was no evidence that knowledge of the sickness absence would have
led to dismissal of Mr Clarke by the pursuer.
(9)
The pursuer must show that the settlements with third parties that form the
losses complained of were reasonable ones in all the circumstances (Biggin v
Permanite [1951] 2 KB 314. Siemens Building Technologies FE Ltd v Supershield Ltd
WLR 1083). Counsel submitted that the settlements were not reasonable as
8
automatism pleas were not taken (Waugh v Allan, 1963 SC 175 (upheld on appeal,
1964 SC(HL) 102) Stewart v Payne, McQuade v Clarke 2017 JC 155).
Witnesses
[10]
Neither party called Mr Clarke as a witness.
Pursuer's witnesses as to facts
(1)
Geraldine Ham is HR Manager for Neighbourhood & Sustainability Services
for Glasgow City Council. She had not been personally involved with obtaining a
reference for Mr Clarke, but gave evidence about the pursuer's recruitment practices
in general and the searches she had made for a copy of a reference for Mr Clarke
after the incident in George Square.
(2)
Jean Walker (previously McEwan) was the pursuer's Assistant HR Manager.
(3)
Leeann Doherty worked for the pursuer in its Central Business Services
Recruitment. She gave evidence as to the pursuer's recruitment procedures, and in
particular her involvement in the recruitment of Mr Clarke.
(4)
Ian Miller is a solicitor employed by the pursuer. He gave evidence about the
circumstances of the settlement of the families' claims.
(5)
Julie Mortlock is a claims controller working for the pursuer's insurers
QBE Insurance and gave evidence about the circumstances of the settlement of the
claims brought by the victims and their families.
(6)
Ian Buick is now retired but had previously been a transportation and
logistics manager with the pursuer. He was the Recruiting Manager in respect of the
recruitment of Mr Clarke.
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(7)
Dr Gerard McKaig was Mr Clarke's GP and gave evidence about a
consultation with Mr Clarke on 7 April 2010.
(8)
Dr John Langan was a GP at Dr McKaig's practice and gave evidence about a
consultation with Mr Clarke on 3 and 22 April in Dr McKaig's absence on holiday.
(9)
John Stewart is an inspector employed by the defender. He gave evidence
about the incident on 7 April 2010.
(10)
Dr Kenneth Lyons was an independent occupational health doctor working
on behalf of the defender who examined Mr Clarke on 8 April 2010.
(11)
Dr Joanne Wilcox was an independent occupational health medical adviser
who examined Mr Clarke on 6 December 2011 on behalf of the pursuer.
(12)
Dr Peter Warnock was employed by BUPA as the clinical lead for their
occupational health services in Scotland and was Dr Willock's supervisor. He had no
personal involvement with Mr Clarke or with Dr Willock's assessment of Mr Clarke,
but gave his opinions about standard practice for a doctor filling in a D4 form for the
DVLA and about what Dr Warnock would have expected the DVLA to do in
response to a form which disclosed that Mr Clarke had lost consciousness at the
wheel of a vehicle, and about what Dr Warnock would have done if he had been
consulted at the time (which he had not been) about Mr Clarke's case. I did not find
his evidence to be of assistance. It was in the nature of expert opinion evidence, but
he was not put forward as an expert and indeed would not have been an appropriate
expert as he was not independent, being the clinical lead for BUPA which was
providing occupational health services to the pursuer and being Dr Willock's
supervisor.
10
(13)
Stewart Young is a customer operations manager with the pursuer who
assisted in the pursuer's internal search for a copy of a reference for Mr Clarke.
(14)
Andrew Gordon is an IT specialist and employee of the pursuer who
designed the pursuer's Pulse system.
Defender's witnesses as to facts
(1)
Jim Leslie is retired but was formerly employed by the defender as a human
resources manager. He had no personal involvement with Mr Clarke but gave
general evidence about the defender's HR procedures including the giving of
references.
(2)
Frank McCann is a retired former employee of the defender. He was
manager of the Parkhead depot where Mr Clarke worked.
(3)
Robert Donnelly is retired but formerly worked for the defender as assistant
depot manager to Mr McCann, depot manager.
(4)
Stuart Kennedy is employed by the defender as a recruitment and training
manager and had been Mr Leslie's assistant. His evidence was agreed by joint
minute.
(5)
Denise Thompson was a payroll supervisor at the Parkhead depot. She had
arranged a medical referral in relation to the April 2010 incident and spoke in general
terms about her role at the depot.
Expert witnesses
[11]
Both parties had expert computer forensics witnesses in relation to the pursuer's
Pulse electronic workflow system. The pursuer's expert was James Borwick and the
11
defender's was Johnathan Munsey. The expert evidence on this matter was not
controversial and was agreed by joint minute.
[12]
Both parties led an expert employment witness. The pursuer's expert was
David McNaught and the defender's witness was George Wilson. The employment experts
proceeded on the hypothesis that the defender had given a reference to the pursuer . They
addressed practice as to the giving of references, data protection, the part a reference plays
in the recruitment process, what a new employer would wish to know from a reference
(particularly for a driving job), standard practice for the content of references, guidelines
from various institutions, how a reasonable employer would have answered Questions 4
and 7, whether it was essential that a reference mention that Mr Clarke was absent for work
because of a vasovagal attack when in charge of a bus. While there was considerable
disagreement between the experts on these issues, both recognised that matters of fact and
matters of law were matters for the court.
Objections to evidence
[13]
The defender objected, under the best evidence rule, to parole evidence of the
reference. I heard evidence under reservation and deal with this objection below.
[14]
I also heard evidence under reservation in respect of Mr Clarke's last day of work,
28 December 2010, when it was said he had run the bus ahead of the timetable and that this
could constitute a disciplinary offence. I uphold the defender's objection to that evidence.
The question of what Mr Clarke did on his last day, and whether that constituted a
disciplinary offence, forms no part of the pursuer's case, which is founded solely on what
the defender said in the reference about the April 2010 incident.
12
[15]
I also heard evidence under reservation in respect of a fatal accident involving
another of the defender's drivers in 2011. I uphold the defender's objection. This was a
separate incident involving a different driver in different circumstances and has no bearing
on or relevance to the issues in this case.
Factual background
[16]
Mr Clarke was employed by the defender from 12 October 2008 to 28 December 2010,
when he left to take up employment with the pursuer.
[17]
On 7 April 2010 Mr Stewart attended at a bus as Mr Clarke had taken ill. A female
passenger informed him that Mr Clarke had taken unwell at the stop and blacked out for a
few minutes. She specifically described him as passing out when the bus was stationary,
rather than when it was moving. Mr Clarke appeared ok to Mr Stewart, but said he was
feeling unwell. An ambulance was called. The paramedics gave Mr Clarke the all clear.
[18]
Subsequently Mr Clarke was also given the all clear by his general practitioner
doctors and the defender's occupational health doctor, who reported to the defender that
Mr Clarke was fit to return to bus driving duties.
[19]
On 7 April 2010 Mr Clarke was seen by his GP Dr McKaig, who recorded
Mr Clarke's explanation of the incident in his medical records as:
"Had 5 [second] [loss of consciousness] at work, in canteen hot environment no
warning signs, felt slightly disorientated on revival then felt fine. Paramedics
attended no cvs anomalies, advised vasovagal. On balance I agree, works [doctor]
appointment tomorrow"
[20]
Dr McKaig's view was that on the basis of the information provided to him by
Mr Clarke there was no requirement to inform the DVLA. Had he been informed by
Mr Clarke that he had lost consciousness at the wheel of a bus, Dr McKaig would have
13
referred him for cardiovascular examination and Mr Clarke would have been obliged to
inform the DVLA.
[21]
On 8 April 2010 Mr Clarke was seen by the defender's occupational health doctor,
Dr Lyons. Mr Clarke did not say anything to Dr Lyons about losing consciousness while in
a canteen. He described an incident that occurred whilst on board a stationary bus.
Dr Lyons had no reason to think that Mr Clarke was not fit to drive, but needed that to be
confirmed by his GP. Dr Lyons wrote to the GP Practice on 8 April advising that Mr Clarke
had been off driving duties following an episode of loss of, or impaired, consciousness while
on a stationary bus and asking the GP for a medical report including the prognosis
regarding a return to bus driving. In the letter Dr Lyons referred to the DVLA guidelines on
fitness to drive which set out two categories. The first was a "simple faint where there are
definite provocational factors with associated prodromal symptoms and which are unlikely
to occur whilst sitting or lying", in which case there would be no restriction on bus driving
and no need to inform DVLA. The second was "loss of consciousness/ loss of altered
awareness likely to be unexplained syncope low risk of occurrence" in which case there
would be a three months suspension from bus driving and the DVLA should be informed.
[22]
In Dr McKaig's absence on holiday, Dr Langan of Mr McKaig's GP practice saw
Mr Clarke on 13 April 2010 because he needed a sick line. Dr Langan noted in the medical
records "vaso vagal attack bus driver awaiting letter from employer" and issued a sick line
for 14 days.
[23]
Having received the awaited letter from Dr Lyon, Dr Langan saw Mr Clarke again on
22 April in order to write a medical report in response to Dr Lyon's request. In accordance
with his normal practice Dr Langan went through Dr Lyon's letter with Mr Clarke. He
could not remember there being any discussion about whether the incident was on a bus or
14
in the canteen. He pointed out that Dr Lyon's letter had referred to the incident being on a
bus, rather than being at the wheel of a bus. In Dr Langan's view, on the basis of the
information presented to him by Harry Clarke, there was no requirement to inform the
DVLA. If Mr Clarke had told him that he had lost consciousness at the wheel, in
Dr Langan's view that would have been a different set of circumstances and he would have
checked the DVLA guidance and made a cardiology referral. On 26 April 2010 Dr Langan
reported to Dr Lyons as follows:
"This gentleman was waiting to have his lunch in a hot environment. He felt light-
headed and then lost consciousness for a short length of time. It was felt by the
paramedics attending him that this was a simple faint and they did not take him to
hospital.
No investigations are planned and I think he is unlikely to have another one. I think
he is fit to return to work as a bus driver."
In the witness box Dr Lyon explained that this letter from Dr Langan constituted a diagnosis
and that he was not in position to disagree with it. He also pointed out that there was no
discrepancy on the face of Dr Langan's letter as to location of the incident: the letter referred
to a "hot environment" without specifying a hot bus or a hot canteen .
[24]
On 29 April 2016 Dr Lyons reported to the defender as follows:
"Medical history
The background to [Mr Clarke's] medical condition is in my medical report of the
8th April 2020. Mr Clarke has been off driving duties for the past 3 weeks. He told
me he that he had had an episode of impaired, or loss of, consciousness while at
work recently. The episode lasted about 5-10 seconds, according to an eye witness
account. He had no particular warning of the event although he was aware of
feeling warm. An ambulance was called and he was examined on the bus by
paramedics, who did not identify any particular abnormality. The Paramedics made
a diagnosis of a vasovagal attack, or fainting episode. He attended his GP later that
day and his GP agreed that he did not need inform the DVLA.
15
Current symptoms
When I last saw Mr Clarke on 8th April he denied any ongoing symptoms. He
indicated that he was keen to return to work. There did not appear to be any
features suggestive of a seizure.
Examination
The blood pressure, heart rate and rhythm, and heart and lung sounds were all
normal when I examined him on 8th April 2010.
GP Report
I wrote to his GP and I have now received Dr Langan's reply, dated 26th April 2010,
in which Dr Langan indicates that the diagnosis was a `simple faint' and that `he is fit
to work as a bus driver.'
Fitness for work
Mr Clarke is therefore fit to return to bus driving duties."
Having been passed fit to return to work, Mr Clarke then returned to work on 4 May 2010.
[25]
It was a matter of agreement that the defender was aware as at 4 May 2010: (i) that
Mr Clarke had likely suffered a vasovagal attack; (ii) that it had occurred whilst he was in
control of a bus, stationary at a bus stop; (iii) that it resulted in four weeks' absence; and
(iv) that Mr Clarke had been medically examined and that he had been passed fit to return
to work.
[26]
In July 2010 Mr Buick, the pursuer's transportation and logistics manager, required
further drivers. The pursuer launched an exercise to recruit a number of drivers (the
"Recruitment Exercise"). There were 32 applicants shortlisted of whom 25 were successful.
The exercise was conducted by the pursuer's HR and CBS Recruitment departments.
Mr Buick was the Recruiting Manager for the purposes of the exercise, and interviewed the
candidates.
16
[27]
The pursuer operated a workflow system, known as the Pulse system, to manage the
indexing and electronic storage of digital information that related to work processes such as
payroll and recruitment. The Pulse database was used to record the steps in the
Recruitment Exercise. When recording the process of a recruitment exercise the Pulse
system retains a summary of all key dates and times for the duration of the exercise. The
Pulse system lists the key stages in the recruitment exercise and the dates each stage is
marked as completed by a user.
[28]
Letters and spreadsheets completed for a recruitment exercise can also be saved in
the Pulse server as attachments. In relation to the 2010 Recruitment Exercise a spreadsheet
(the "Spreadsheet") was maintained to track inter alia the receipt of references. The
Spreadsheet was not part of the Pulse system but a separate excel document. As the
recruitment exercise progressed, the spreadsheet was from time to time updated and
uploaded to Pulse. The Spreadsheet was created on 9 December 2010. On 24 February 2011
it was updated at 11.49 and uploaded to Pulse at 11.50. It was last saved at 15.45 on
25 March 2011.
[29]
The Spreadsheet is an Excel workbook with three worksheets called "Updated",
"Further info" and "further info 2". The "Updated" worksheet was kept up to date as the
recruitment exercise proceeded. The other worksheets were not. So for example although in
the final version of the Spreadsheet on 25 March 2011 the "further info" worksheet is
unchanged from the previous version and still states that both references for Mr Clarke are
"still outstanding" this is superseded by the "Updated" worksheet which has been changed
to state "Received direct from RM [ie Recruiting Manager]"
[30]
On 14 July 2010 Mr Clarke applied to the pursuer for a job as Land and
Environmental Driver 2. He was interviewed on 10 September 2010.
17
[31]
On 3 December 2010 the pursuer wrote to Mr Clarke offering him the position of
Land and Environmental Driver 2 with effect from 5 January 2011. The offer of employment
was subject to the following conditions:
"Satisfactory completion of your pre medical questionnaire.
Satisfactory referees.
Satisfactory Enhanced Disclosure Scotland check."
[32]
Mr Clarke handed in his notice to the defender. The defender's employee exit form
in respect of Mr Clarke dated 28 December 2010 recorded that he was suitable for re-
engagement.
[33]
Mr Clarke in his application form gave two referees: Mr McCann of the defender and
Mr Steve Alston of DHL. He subsequently substituted Mr Claven for Mr Alston.
[34]
On 8 December 2010 the pursuer faxed Mr McCann asking for a reference in the form
of an App7.
[35]
An App7 is the pursuer's standard reference enquiry form. It contains seven
questions. Question 4 on the form asks "Please give details of any sickness absence that the
applicant has had in his/her last two years of employment with you." There is a response
grid headed with columns headed "From" "To" and "Reason". Question 7 on the form
states: "Please give any other relevant information about the applicant that you feel a
prospective employer should be aware of eg live disciplinary actions etc"
[36]
The Spreadsheet records that a reminder was issued on 20 December 2010.
[37]
As part of the application process Mr Clarke completed a health questionnaire, in
which he stated he had had seven days absences in the last two years and gave the reason as
flu. The pursuer obtained a report on Mr Clarke from its occupational health advisers BUPA
dated 20 December 2010. The BUPA report stated:
18
"I have assessed the questionnaire and my advice is as follows:
Based on the information supplied, the employment is suitable for the
employee from a health perspective.
The employee declares 1 episodes [sic] of sickness amounting to 7 days off in
the past two years."
[38]
It was a matter of agreement that on about 21 December 2010 Mr Clarke informed
the pursuer that any request for a reference should be e-mailed to Darryl Turner of the
defender. This was recorded in the Spreadsheet, which states "Frank McCann (First Group)
has informed Henry, any requests have to be emailed to [email address of Darryl Turner of
FirstGroup]" The reference to "Henry" is a reference to Harry Clarke.
[39]
Mr Clarke commenced working for the pursuer as a grade 2 minibus driver on
5 January 2011. Neither reference had been received by then.
[40]
On 12 January 2011 Kim Hughes on behalf of Ms Doherty of CBSRecruitment
emailed Lee-Ann Wilson of HR in respect of the 2010 Recruitment Exercise. The email listed
13 candidates and what references were outstanding. It listed both references in respect of
Mr Clarke as being outstanding. In respect of the reference from the pursuer the email
stated: "Frank McCann (First Group) has informed Henry, any requests have to be emailed
to [email address of Darryl Turner of FirstGroup]"
[41]
In respect of the reference from DHL the email stated: "Henry having difficulty
contacting Steve Alston (DHL). Issued with new referee at DHL." The email went on to say:
"The above candidates' referees have been contacted on two or more occasions
requesting return of a completed reference pro forma to date they have not returned
any.
...
Please advise what course of action you require us to take or if you will be contacting
the candidates directly."
19
The reference pro-forma referred to in the email was the App7.
[42]
On 12 January 2011 Ms Wilson forwarded the email to Mr Buick asking "Can you
speak to each individual who is detailed below [which included Mr Clarke], as their offer of
employment is subject to a satisfactory reference."
[43]
Mr Buick responded by email on 13 January, stating:
"The drivers highlighted are based at depots throughout the city; they do not report
to Polmadie on a daily basis, contact would have to be made by mobile phone. I am
not aware of what an Additional Information Sheet is, or if they can now provide a
different referee, therefore I believe it would make more sense for personnel to deal
with this matter."
[44]
On Friday 14 January 2011 Jean Walker assistant HR manager replied saying "Tried
to call you to have a chat can you please call me on Monday."
[45]
On 14 January Ms Doherty noted on the Pulse system "Advised by HR that all
candidates outstanding references will be asked to chase them up by the Recruiting
Manager."
[46]
Mr Buick contacted the various candidates to chase their referees. He did as
reluctantly as he thought it wasn't his job as an operational manager to do so, and it should
have been HR who did this. There was no evidence that he went beyond contacting the
candidates and contacted the referees themselves.
[47]
On 24 January Ms Doherty noted on the Pulse system "Further email sent to HR with
update on all outstanding references, awaiting reply on how to proceed"
[48]
The Spreadsheet records that the reference was "escalated again on 24.02.11" This
may have been a typographical error which should have stated 24 January rather than 24
February.
20
[49]
On 26 January Mr Buick emailed to Ms Walker, copied to Ms Wilson: "I have
contacted every driver regarding difficulties with their references. Please refer to the
attached updated spreadsheet."
[50]
On 4 March Ms Doherty noted on the Pulse system: "No response made from Service
HR reminder email sent on how to proceed and update if any references have been
returned direct to the Service" On 7 March she noted "advised by LES HR, this is being
looked into by Recruiting Manager re outstanding references. Will advise once done."
[51]
On 9 March Ms Doherty noted in the Pulse system:
"Recruiting Manager has advised, he has asked all candidates to chase outstanding
references and advised them that it is imperative that all references have to be
submitted by Friday 18
th
March".
[52]
On Friday 25 March at 3.35pm Ms Doherty noted in the Pulse system "All references
now received." At 3.45 that day 25 March 2011 an updated version of the Spreadsheet was
uploaded to the Pulse system. In the column for references received it stated "Received
direct from RM". In the column "Approved by Mgr [ie Manager]" it stated "25.3.11"
[53]
On Friday 25 March 2011 at 3.46pm Ms Doherty emailed Mr Buick under the
heading "References Returned" as follows:
"Dear Recruiting Manager
We have now received all Reference Reports in respect of the undernoted applicants
which you should now be in receipt of.
[there followed a list of 24 applicants in respect of the same recruitment round
including Mr Clarke].
I would appreciate if you could contact Leeann Doherty..to confirm that you are
satisfied with the content of the reports".
The wording of that email was not composed by Ms Doherty but was generated
automatically by the Pulse system. Accordingly little weight can be placed on the wording
21
of the email as evidence as to who precisely had received references or whether prior to the
sending of the email the pursuer had formed a view that the references were satisfactory. I
accept Ms Doherty's evidence that the email might not have been generated by her and that
anyone in her team could have ticked the box generating the email.
[54]
Mr Buick replied by email on Monday 28 March 2011 at 8.55am stating "I can
confirm that I am happy with the content of all the references"
[55]
By letter dated 1 April 2011 the pursuer wrote to Mr Clarke making a conditional job
offer. The letter did not state what the offer was conditional upon. Enclosed with the letter
was a Statement of Particulars of Employment with job title Land and Environmental
Driver 2 with a date of appointment of 5 January 2011.
[56]
By application form dated 13 September 2011 Mr Clarke applied for a position with
the pursuer as a Land and Environmental Driver 3 (Nightshift) driving gritting vehicles. His
application was successful. On 29 November 2011 he was issued with a Statement of
Particulars of Employment with job title Land and Environmental Driver 3 (N/S)
(Temporary) with a date of appointment of 10 November 2011 and a date of commencement
with current employer and of continuous employment of 5 January 2011. The Statement of
Particulars was sent under cover of a job offer letter which offered the job subject to
completion of a medical assessment, and asked him to complete a medical questionnaire.
[57]
On 30 November 2011 the pursuer's HR department referred Mr Clarke to
Occupational Health for a driver medical assessment. The referral form stated:
"Mr Clarke is currently at work however, he has advised his manager that he has
received his DVLA reminder regarding his licence. His licence expires on 9 January
2012.
He has had no sickness absences.
Please arrange a drivers medical for him and advise me of the details."
22
[58]
Mr Clarke was seen by the pursuer's occupational health doctor Dr Joanne Willox on
6 December 2011 at BUPA premises. Dr Willox reported to the pursuer that Mr Clarke was
suitable for the post. She completed a D4 medical report for the DVLA in respect of renewal
of his license in good faith and had no reason to consider that Mr Clarke was other than in
good health at that time. Mr Clarke did not disclose to her that he had fainted in April 2010.
If he had, she would have investigated further and written to his GP and also advised the
pursuer that he ought to be temporarily removed from driving until further information had
been obtained.
[59]
On 13 April 2012 the pursuer wrote to Mr Clarke confirming that due to the winter
gritting exercise being complete, with effect from 10 April 2012 he would revert back to his
substantive temporary post of LGV Driver/Labourer (CRC) within Commercial Collection
SE driving bin lorries and that his contract would be reviewed again on 25 May 2012. On
29 May 2012 the pursuer wrote to Mr Clarke confirming that a temporary extension had
been agreed until 26 June 2012. On 17 August 2012 the pursuer wrote to Mr Clarke
confirming an extension of his temporary contract from 22 July 2012 to 22 October 2012. On
11 October 2012 the pursuer decided to offer a permanent contract to Mr Clarke and he
accepted a verbal offer on 12 October. On 11 December 2012 the pursuer wrote to Mr Clarke
confirming that his temporary post had been made permanent with effect from 11 October
2012 and he was issued with a Statement of Particulars of Employment with job title LGV
Driver/Labourer with a date of appointment of 11 October 2012 and a date of
commencement with current employer and of continuous employment of 5 January 2011.
[60]
The incident in George Square took place on 22 December 2014.
23
[61]
On 25 February 2015 the Crown Office and Procurator Fiscal Service issued a public
statement renouncing the right to prosecute Mr Clarke. The reason given was:
"As the driver was unconscious at the time he was not in control of the vehicle and
did not have the necessary criminal intention, unless it could be proved that it was
foreseeable that he would lose consciousness whilst driving that day ...
Crown Counsel considered that there was insufficient evidence that it was
foreseeable that he would lose consciousness whilst driving that day".
[62]
Mr Clarke resigned on 30 October 2015 immediately prior to a disciplinary hearing
that was due to be held that day to consider allegations that:
(1)
When completing a BUPA pre-employment questionnaire in December 2010
Mr Clarke failed to disclose all periods of absence in the preceding two year period,
including a period of absence relating to an alleged blackout or fainting episode on
7 April 2010 when employed by the defender.
(2)
When completing a DVLA D4 form in December 2011 Mr Clarke failed to
disclose the alleged blackout or fainting episode on 7 April 2010.
(3)
When completing BUPA health questionnaires on 1 and 6 December 2011
Mr Clarke failed to disclose the alleged blackout or fainting episode on 7 April 2010
and subsequent period of absence.
[63]
The fatal accident enquiry determination was issued on 7 December 2015.
[64]
A number of claims were intimated to the pursuer by those injured and the families
of those killed. The pursuer instructed senior counsel and a consultation was held on
10 February 2016. On 24 May 2016 Mr Miller met with the pursuer's chief executive and the
pursuer's finance director Lynn Brown to obtain their input into how to deal with the
claims. It was accepted by them that the pursuer would have to pay out at some stage. It
24
was high profile incident. There was also a recognition that from a political point of view it
was the right thing to do.
[65]
The pursuer's insurers, QBE, wanted to settle the claims and pursue th e defender
later on. The pursuer was liable up to its excess of £750,000 and its insurer was liable
beyond that.
[66]
On 21 June 2016 Mr Miller sent an email to the pursuer's chief executive, finance
director and the pursuer's director of governance and solicitor Carole Forrest, setting out
three options, namely (1) go back to the defender in the hope of persuading it to discuss
matters; (2) force the claimants to litigate and then bring in the defender as a third party;
and (3) settle the claims and reserve the right to recover from the defender at a later date.
The deputy director of finance Morag Johnston supported option 3. In an email dated
22 June the chief executive said that the practical and appropriate way forward would be to
go with option 3 and review the position with the defender later. The claims were settled
and the pursuer's rights against the defender were subrogated to the insurer, QBE.
[67]
Relatives of certain of the victims of the George Square incident brought an
application for a private prosecution by bill of criminal letters. The bill was refused by the
High Court of Justiciary on 9 December 2016 (Stewart v Payne, McQuade v Clarke 2017
JC 155).
[68]
The High Court stated:
"A person who falls unconscious at the wheel is, on the face of it, no longer driving
voluntarily. However, if the driver is aware that he has a medical condition liable to
render him unconscious whilst driving, he may be precluded from relying on that
condition as a basis for maintaining that his acts were involuntary. The driver
would, however, need to know that he had such a condition". (para [83])
The court did not consider that the Crown had erred in its assessment of the evidence
(para [97]) and stated:
25
"[99] In the case of Clarke the Crown considered it a very significant factor that the
previous loss of consciousness occurred four and a half years prior to the fatal
accident, and that there was no evidence of any further incidents when driving,
despite the respondent being a professional driver who drove almost daily. The
Crown assessed that reliable conclusions could not be drawn as to the nature of the
2010 incident. The respondent had disclosed the incident to several doctors, and told
one of them that he had been at the wheel of a bus at the time. Insofar as he did
misrepresent the circumstances, the Crown considered that it could not be concluded
that he did so deliberately and in any event his reasons for doing so were
speculative."
[69]
No defence of automatism or that Mr Clarke's actions were involuntary was
advanced by the pursuer in respect of the civil claims against it by the victims and their
families. The claims were settled on a full liability basis.
The best evidence rule
[70]
The attempt by the pursuer to prove that a reference was given and what it said runs
into an immediate problem as the reference has not been produced in evidence.
[71]
Despite extensive searches of its records, both paper and electronic, the pursuer has
been unable to locate a reference from the defender or any copy of it. Normal practice
would be that the reference would have been kept in Mr Clarke's physical personnel file but
the file contained no such form. Searches of the pursuer's electronic records and Pulse
system have not produced the reference.
[72]
The defender objected to the leading of other evidence as to the existence and
wording of the reference on the basis of the best evidence rule.
[73]
Senior counsel for the defender submitted that parole evidence as to the contents of
documents which have not been produced is excluded by the best evidence rule (Scottish and
Universal Newspapers v Gherson's Trustees 1987 SC 27, Dickson on Evidence paragraphs 209,
216, 217, 220,236, 237, 241). The pursuer had not established any exception to the best
26
evidence rule, and had not shown that the reference was lost without fault by the pursuer.
The reference was the de quo of this case. The defender had been prejudiced in having to
deal with this case as an exercise in the reconstruction of a document of which there was no
trace and of which none of its employees has any recollection of completing many years
after the event.
[74]
Counsel for the pursuer submitted that the failure to produce the document was a
matter of weight (Stirling Aquatic v Farmocean (no. 2) 1996 SLT (N) 456; Stirling v Brinkman
2020 CSOH 79). He sought to distinguish Scottish and Universal Newspapers on the ground
that in that case the documents were lost after commencement of the action, were the de quo
of the case, and no reasonable explanation was provided for their loss.
[75]
In my view the best evidence rule, in so far as relevant to the circumstances of this
case, can be summarised in the following propositions from Dickson on Evidence:
(a)
"An important branch of the rule which requires the best evidence is that the
terms of documents which may be produced must be proved by the documents
themselves, and cannot be proved by parole evidence" (para 204);
(b)
The best evidence rule is "founded on the presumption that one who tenders
the less trustworthy of two kinds of proof within his reach, does so in order to
produce an impression which the better proof would not create; for, if they would
lead to the same result, he would probably not select th e less convincing of them
(para 195)
(c)
"primary evidence, whenever it is in the power of a party to produce it, must
be produced" (para 203).
(d)
However, "secondary evidence is admitted to prove the contents of
documents which are withheld by an opponent, or have been destroyed or lost
without fault in the party founding on them. In such cases the adducer leads the best
evidence in his power; and it is not to be presumed that he tenders the secondary
evidence improperly, in the belief that the original would not support his case" (236).
(e)
"When the loss of a document has occurred when it is in the hands of the
party founding on it, the Court will hesitate to admit secondary proof of its contents;
as such cases are usually attended with suspicion. They will probably require the
party to show a special casus amissionis not attributable to any fault on his part" (237).
27
(f)
The party "must show that he has in bona fide used every means which
prudence would suggest as likely to recover it"
[76]
In England, the best evidence rule "long on its deathbed, has finally expired"
to adduce secondary evidence of a document, that evidence is admissible and it is a matter
for the court as to what weight to give to that evidence (Masquerade Ltd at para [85];
[77]
Scots law has not yet reached that stage and the best evidence rule remains part of
the law. That is clear from Scottish and Universal Newspapers which is binding on me. In that
case the pursuer sought to found on financial documents which were lost after the action
had been raised and defences lodged. The court applied the best evidence rule and
excluded proof of the documents. It held that the pursuer was at fault in the sense that it
had failed in its duty to take all proper steps or to use all due diligence to see that the
records were preserved and remained accessible for use in the proof.
[78]
In the current case, the circumstances of the loss (ie casus amissionis) are different.
Assuming for the moment that the reference did exist, it was lost long before this case was
brought, and indeed long before anyone had an inkling that it might be necessary to
produce it in legal proceedings.
[79]
In the days following the George Square incident, Miss Ham looked out the
paperwork and other records relating to the recruitment and employment of Mr Clarke and
ascertained that his personnel file did not contain copies of his reference. That may
demonstrate fault by the pursuer in a general sense, in that it was in breach of its practice of
keeping the references in the file. However it does not demonstrate fault in the sense
referred to in Dickson and exemplified by Scottish and Universal ie fault giving rise to a
28
suspicion. As the absence of the reference from the file pre-dates the occurrence of the
incident giving rise to the legal proceedings concerning the reference (such as this case or
the fatal accident enquiry or possible criminal proceedings) then the pursuer is not in breach
of any duty to preserve it for use in these proceedings.
[80]
In this case I am satisfied that the reference was lost in circumstances which do not
give rise to a suspicion that the pursuer is seeking to produce an impression which the
document would not create. I am also satisfied that the pursuer has bona fide searched for
it. I repel the objection.
[81]
The effect of that is that I will admit secondary evidence of the reference and its
wording.
[82]
However, the pursuer still faces formidable challenges in proving its case. Where, as
here, a pursuer's case turns on the precise wording of a document which is not produced,
then clear and cogent evidence will be required that the document exists and what the
wording said. Even if such evidence is available, there are obvious difficulties in assessing
that evidence as it is not possible for the evidence of the pursuer's witnesses as to the
wording of the reference to be tested against the document itself.
Witness evidence on the existence and wording of a reference
Pursuer's witnesses
[83]
Geraldine Ham was 100% sure that the pursuer sought references from previous
employers before employing Harry Clarke. The App7 form was the only way that
references could be submitted. In her initial witness statement she said categorically that in
terms of the pursuer's normal processes you can't start a job with the pursuer unless it has
the references. In a subsequent witness statement she changed her position saying that it
29
was very rare to start someone without references, and gave an example of occasions where
one reference had been received. She would expect all the questions in the App7 to be
answered. It would have been the task of the recruiting manager (Mr Buick) and her
assistant Jean Walker from HR to review the App7 forms. There are occasions where the
applicant may tender a reference which is not in App7 format and providing it is authentic
and contains all the information requested in the App7 form, Miss Ham would accept this
and if not then the App7 form would be issued to the referee. Her assistant Jean Walker was
responsible to ensure compliance in relation to Mr Clarke and once Mrs Walker was
satisfied she would have presented the pack to Miss Ham to sign off. Miss Ham would have
signed off on the pack for Mr Clarke's recruitment as there was nothing flagged as
untoward. If the defender had provided true and accurate answers to the questions on the
App7 form Mr Clarke would not have been employed, or would have been subjected to
disciplinary procedures by the pursuer.
[84]
Jean Walker gave evidence about the pursuer's general procedures. She had not seen
a reference from the pursuer in respect of Mr Clarke.
[85]
Ms Doherty's evidence was that she had not personally seen a reference for
Mr Clarke from the defender. She had made an entry on the Pulse system on 25 March 2011
that "all references now received". She made that entry on the basis of being advised by HR
that all references had been received. Her recollection was that she had received an email
from Ms Wilson of HR confirming that a reference had been received and that HR were
happy with it. She had seen that email when she went to the council's offices to search for
emails prior to the FAI. On being referred in the witness box to the Spreadsheet which
stated "Received direct from RM" her position was that she had been advised on 25 March
that both references were received direct to the recruiting manager. She had no doubt that
30
she had been advised by HR that the references, including one from the defender , had been
received.
[86]
Ian Buick was a transport and logistic manager with the council. In 2011 he needed
more drivers and he obtained permission from his director and from HR to undertake the
2011 Recruitment Exercise. He was the recruiting manager for the exercise which he
undertook in conjunction with the HR department. For example, he would arrange for
completed application forms to be collected from HR, decide who would be invited for
interview and inform HR who would then contact the applicants. He conducted the
interviews. On 11 January 2011 Ms Wilson of HR sent him an email asking him to speak to
individuals whose references were outstanding. He thought that HR should deal with that
as it was not an operational matter. In all the years he was involved in recruiting he was not
involved in references as HR dealt with it all: HR collated all the references and it was only
if there were any concerns that they contacted him. He was annoyed as he thought it was
bizarre that he was being asked to chase references. He questioned why he should be doing
that but ended up phoning the applicants to tell them CBS were chasing him for their
references. He did not recall seeing Mr Clarke's references. However, on the basis of his
email to Ms Doherty on 28 March 2011 his position was that he had been sent a number of
references for various applicants (including Mr Clarke) and the email confirms that he was
satisfied with these. He was absolutely sure that he would have scrutinised them properly.
Defender's witnesses
[87]
Frank McCann was manager of the defender's Parkhead depot, and Mr Clarke's line
manager. He had no recollection of completing an App7 for Mr Clarke. He was not aware
31
of one having been completed for Mr Clarke. He had completed similar forms for other
employees in the past.
[88]
Robert Donnelly was Mr McCann's deputy. He did not complete a form App7 in
relation to Mr Clarke. He did not provide a verbal or written reference. At that time any
reference forms had to go to the defender's HR department at their Larkfield depot.
[89]
Denise Thompson assisted Mr McCann and Mr Donnelly with administrative
matters. She had not seen an App7 prior to giving a statement for this case and was not
aware of an App7 having been completed for Mr Clarke.
[90]
Jim Leslie was the defender's human resources manager, based at their Larkfield
depot. He had not seen an App7 prior to when his statement was being taken for this case.
He was not aware of one having been completed with regard to Mr Clarke. At one stage
the defender's system had been that all references were dealt with by the relevant depot
manager. However that system changed. The reason for that change was that there had
been difficulties for the defender in an employment tribunal situation where a driver who
was complaining of unfair dismissal had produced a favourable reference from a member of
a depot management team. A decision was taken that (a) depots would no longer issue
references, which would only be issued centrally from HR; (b) the references would be in the
pursuer's pro-forma and would only confirm the dates of employment and the job; and
(c) the defender would not complete forms from those seeking a reference but would only
issue pro-forma letters confirming the dates of employment and job. Mr Leslie was not sure
when the policy changed. If he had been asked to guess he might have said 2012 or 2013 but
when he started to think about the time frame 2011 sounded reasonable. A reference letter
for another employee dated 25 July 2011 was produced. Mr Leslie's position was that that -
32
letter was issued under the new policy and was in the new pro-forma. The letter was in the
following terms:
"To Whom It May Concern
Dear Sir/Madam
Re [name redacted]
It is First Glasgow (No.1) Limited's policy to provide factual references, based on
information from the personnel file. I can therefore confirm that the above-named
was employed by FirstGroup from [date redacted] to [date redacted].
[Name redacted] worked in the capacity of Part Time Bus Driver.
The information contained in this reference is provided confidentially and in good
faith, but on the basis that First Glasgow (No. 1) Limited is under no legal liability in
respect of it. It is based on information available to the Company on the date given.
The content must not, under any circumstances, be disclosed to a third party. I trust
the above is sufficient.
Yours faithfully
[signature]
Jim Leslie
HR Business Partner"
The entry in the pursuer's Spreadsheet to the effect that any requests have to be emailed to
Darryl Turner showed that the policy had changed by that time. Mr Turner was an HR
assistant in Mr Leslie's department.
[91]
Stuart Kennedy was the defender's assistant HR manager, working for Mr Leslie. He
had not personally provided a reference for an employee of the defender. In around 2012
or 2013 the process became centralised, and references were directed to a central location, as
opposed to the former employee's depot.
33
Assessment of the evidence on the existence and wording of a reference
[92]
I am satisfied that the factual witnesses were doing their best to recall what had
happened and tell the truth. However, they were trying to recall events in 2010 or 2011. The
events were routine and unexceptional at the time and there is no particular reason for the
circumstances surrounding the recruitment and reference for Mr Clarke to have stood out in
the witnesses' memories. It was not until after the George Square incident that focus was
brought to bear on the recruitment of Mr Clarke: even at that time the witnesses were trying
to recall routine, unexceptional events that were some four years old. It is therefore
important to assess the witness evidence against the contemporaneous documentation.
[93]
The pursuer's case is that Mr McCann provided a reference to the pursuer in the
form of an App7.
[94]
There is no copy of any reference from Mr McCann (or indeed any other employee of
the defender) in the paper or electronic records of either the pursuer of the defender. Nor do
these records contain any email or letter stating that such a reference is enclosed or attached.
[95]
It is a remarkable feature of this case that not a single witness spoke to remembering
having seen a reference.
[96]
Mr McCann's evidence was that he had no recollection of completing an App7 for
Harry Clarke and was not aware of one having been completed for Harry Clarke. His
position is supported by contemporaneous evidence from the email of 12 January 2011 and
Spreadsheet which record that although initially the pursuer faxed McCann on 8 December
2010 requesting a reference, Mr McCann informed Mr Clarke that requests for a reference
had to be emailed to Mr Turner. That contemporaneous documentary evidence is also
consistent with the evidence of Mr Leslie, Mr Donnelly and Mr Kennedy that the defender
ceased to give references in the new employers' forms from depot managers such as
34
Mr McCann and instead only gave references in the defender's own pro-forma from the
defender's HR staff such as Mr Turner. The record in the email of 12 January 2011 and
Spreadsheet of the pursuer having being informed that requests had to be emailed to
Mr Turner, and the sample letter in the defender's new pro-forma dated only some three
months or so after Mr Clarke's offer letter of 1 April 2011, are strong indicators that the new
policy was in operation in respect of Mr Clarke. That is consistent with the evidence of
Mr Donnelly and Mr Leslie that the new policy was in existence at the time when a reference
was being sought by the pursuer for Mr Clarke. Mr Kennedy was in my view mistaken in
putting the date for the change of policy as late as 2012 or 2013.
[97]
Miss Ham had not seen a reference for Mr Clarke either. She spoke only of the
general practice of the pursuer in respect of references. Her position was that in terms of the
pursuer's normal processes you can't start a job with the pursuer unless it has the references.
However, general practice as to the obtaining a reference is an unreliable guide as to
whether a reference was actually obtained for a particular individual. Indeed, it was
undoubtedly the case that the general practice was not followed in respect of Mr Clarke as in
January 2011 he started his job without references having been received.
[98]
Nor had Ms Doherty seen a reference for Mr Clarke. Although her 25 March email
said "We have now received all Reference Reports" this did not mean that she personally
had seen a reference for Mr Clarke: the wording of the email was generated automatically
by the Pulse system. Ms Doherty had not personally seen a reference for Mr Clarke from the
defender but instead relied on information provided by Miss Wilson of the pursuer's HR
department. There are two problems with that. Firstly, Miss Wilson was not led as a
witness. The court therefore does not have the benefit of having heard from one of only two
persons (the other being Mr Buick) who on the pursuer's evidence might actually have seen
35
the reference. Secondly, the email from Miss Wilson on which Ms Doherty relied was not
produced, despite it being, according to Ms Doherty, available and in existence at the time
the pursuer was searching for and preserving evidence after the George Square incident. In
these circumstances the evidence of Ms Doherty that a reference had been received for
Mr Clarke from the defender can be given very little weight.
[99]
Mr Buick, too, had no memory of seeing a reference from the defender for Mr Clarke.
His evidence was that he could not remember looking at the references. The high point of
his evidence was that he must have done so and been happy with them or he would not
have sent the email of Monday 28 March 2011 at 8.55am stating "I can confirm that I am
happy with the content of all the references". So there is no specific evidence from him that
he remembered seeing a reference for Mr Clarke, or that it was in the form of an App7, or
whether questions 4 and 7 were answered at all, or what the wording of any such answers
was. The references which his email refers to have not been produced. There is no email,
paper or Pulse trail showing receipt from the defender of a reference which was then seen
by Mr Buick. His evidence amounts to nothing more than speculation as to why he might
have written that email.
[100]
In my opinion, the evidence of Mr Buick's email of 28 March is outweighed by the
clear contemporaneous record in the email of 12 January 2011 and Spreadsheet that
Mr McCann declined to give a reference and indicated the request should be sent Mr to
Mr Turner instead, which is supported by the evidence of Mr Leslie as to the defender's
change of reference policy, which in turn is supported by the documentary evidence of the
sample pro-forma reference of 25 July 2011. There was no evidence at all before me that
having initially declined to give a reference Mr McCann changed his mind and decided to
36
give one on an App7 after all. Weighing the evidence as a whole, I find that on the balance
of probabilities Mr McCann did not provide a reference to the pursuer.
[101]
That finding raises the question of whether a reference was provided to the pursuer
by Mr Turner. The pursuer's position was that Mr Turner was never requested to provide
the reference. In my view that position is correct. There was no evidence from the Pulse
system, Spreadsheet, emails or any other source that anyone from the pursuer had acted on
the information received from Mr Clarke that a reference would require to be requested
from Mr Turner rather than Mr McCann, and emailed or otherwise contacted Mr Turner
requesting a reference. There was no evidence of a reference having been received from
Mr Turner. Mr Turner was not a witness in the case. I find that no reference was received
from Mr Turner.
[102]
Even if I am wrong in that, and a reference was provided by Mr Turner, that does not
advance the pursuer's case. Due to the change in the defender's practice on giving
references, the reference would not have been in the form of the pursuer's App7 but would
have been in the form of the defender's pro-forma as used in the sample reference letter of
25 July 2011. That pro-forma was in short form and does not encompass the
misrepresentations on which the pursuer founds its case, and in any event contains an
express disclaimer of liability.
[103]
As I have found on the facts that the defender did not provide a reference to the
pursuer for Mr Clarke, the pursuer's case fails.
Order
[104]
I shall uphold the defender's second plea in law and grant decree of absolvitor . I
reserve all questions of expenses in the meantime.
