Scottish Court of Session Decisions
You are here:
BAILII >>
Databases >>
Scottish Court of Session Decisions >>
F against Gordon Chalmers and others (Court of Session) [2025] CSOH 43 (28 April 2025)
URL: http://www.bailii.org/scot/cases/ScotCS/2025/2025csoh43.html
Cite as:
[2025] CSOH 43
[
New search]
[
Printable PDF version]
[
Help]
This note on interest is to be read in conjunction with the opinion dated 28 February 2025:
OUTER HOUSE, COURT OF SESSION
[2025] CSOH 43
A154/22
NOTE ON INTEREST BY LORD CLARK
In the cause
F
Pursuer
against
(FIRST) GORDON CHALMERS; (SECOND) R C DIOCESE OF GALLOWAY;
(THIRD) NORTH AYRSHIRE COUNCIL; (FOURTH) THE ENGLISH BENEDICTINE
CONGREGATION TRUST; AND (FIFTH) PAUL MORRISON
Defenders
Pursuer: Milligan KC, McCaffery; A & WM Urquhart
Second Defender: Primrose KC, Rolfe; Keoghs Scotland LLP
28 April 2025
Introduction
[1]
The decisions I reached in relation to the amounts of solatium and the lump sum for
past and future wage loss are explained in my Opinion. As noted, the second defender is
now the only remaining defender. Parties have not been able to agree on interest and have
set out their respective positions in their further written submissions. This Note now deals
with those issues.
2
Interest on solatium
[2]
The pursuer seeks interest on solatium in the sum of £120,646. The calculation is
stated in the pursuer's written submissions, seeking to follow the approach I took in the
Opinion in relation to interest on solatium applied to the two elements (pain, affront and
humiliation; emotional and social consequences). It proceeds on the basis that the damage
occurred approximately 46.5 years ago (31 August 1978) and that the deduction of 27% of
the interim payments has to be applied.
[3]
The defender's calculation of interest on solatium is £124,779.44, with the calculation
set out in the appendix to the written submissions. The defender takes a similar approach to
that of the pursuer, but makes the valid point that my suggestion, at paragraph [137] of the
Opinion, that interim payments made can be attributed to solatium to the extent of 27% is not
appropriate. The reason is that the solatium award of £135,000 is approximately 27% of the
award for consequential losses of £492,000, but it represents 21.53% of the total award of
damages (ie £627,000).
[4]
I agree with the defender's point. However, I was not able to find that the amount
referred to by the defender (£8,399.57) for the period from 18.2.2020 to 15.2.2023 is accurate
and it has now been confirmed by the defender that it should be £5,939.14. As a
consequence, applying the smaller percentage of the interim payments (21.53% rather
than 27%) the amount of interest on solatium (as stated in the revised submissions for the
defender) is £122,319.
3
Interest on past wage loss
[5]
The pursuer seeks interest on past wage loss in the sum of £297,060. The defender
argues that there should be no interest on past wage loss. I begin by assessing the
defender's contention.
[6]
There are observations made in the Opinion about the approach I had to take. For
example, in para [119] I mentioned that ascertaining just how long the pursuer could
properly have worked for is very difficult. In para [124], even if there had been no abuse at
St Mark's, I stated that the pursuer is, on the balance of probability, unlikely to have
continued to work for a very substantial period after 2012, and that the precise duration of
his working life is not possible to quantify. In para [125], I said that without the St Mark's
abuse he would not have had so many interruptions in his work prior to 2012, but would
undoubtedly still have had some interruptions caused by the other issues and added:
"After 2012, he would not, in my view, have been at all capable of working for the
remaining 26 years in full, if the abuse at St Mark's had not happened. He may well
have managed to do more work, perhaps for say ten years or so and probably with
gaps, but when and at what rate cannot be determined and so again it is not possible
to reach any accurate arithmetical figure."
[7]
In para [126], I mentioned that the calculation of wage loss at £350,000 does not
conflict strongly with the position I would have reached had it been necessary to decide, on
the limited information, how many years the pursuer would have worked for after 2012 and
what lesser interruption there would have been to his work before 2012.
[8]
The £350,000 figure obviously deals with past and future wage loss. I accept that
there is currently no allocation of part of the lump sum to past loss of earnings, but it is clear
that the figure covers both. In addition, I did not decide that the £350,000 figure included
interest on past wage loss and there is of course no mention in the Opinion of that being the
approach taken. There is, as the defender submits, a specific reference to solatium but it is
4
not appropriate to infer from that reference that there is to be no interest on past wage loss.
The question which remains, therefore, is whether in a lump sum that covers past and future
wage loss it is possible to draw, from the reasons given in the Opinion and on a broad
approach, which amount of the £350,000 is past wage loss and what interest should apply to
that amount. As is explained below, it is possible to do so.
[9]
The pursuer argues that the period of the pursuer's lifetime employment, absent any
abuse, is estimated as being from 1994 to retirement aged 67 years in 2038. This is a total
period of 44 years. The period from 1994 to date is 31 years, or 70% of the 44 years, which
the pursuer submits is the percentage which ought to be applied to the total award for loss
of earnings to identify the element which ought to be attributed to the past. Thus, of the
total sum awarded of £350,000, £245,000 (70%) is, on the pursuer's submissions, the sum to
be taken as past loss of earnings and it should attract interest on the same basis as solatium.
[10]
There are, in my view, difficulties with the pursuer's proposed approach. In
particular, it does not have sufficient regard to when the limited period of further work
would have taken place and apply my observations (noted above) on that matter.
[11]
On the point made in para [125] of the Opinion about "ten years or so" after 2012,
this takes into account the point in time when the abuse (at both schools) and other issues
caused the pursuer to stop working. It is also noted in the Opinion that there could have
been some more work before 2012, but not all gaps that occurred would have been avoided.
[12]
It would not be appropriate to proceed on the basis that all of that 10 year period or
so would have taken place after the date when the proof ended in early 2025 until retirement
age in 2038 (ie 13 years). Nor would it be appropriate to conclude that all of a working
period of ten years or so would have been before 2025 (again some ten years within a period
of about thirteen years or so) but with no working period thereafter.
5
[13]
The more appropriate course is to identify, very roughly, how much of the £350,000
would apply to the period up to 2012, how much for the period after 2012 and until the end
of the proof, and then how much for the future. In doing so, I have again had regard to the
point that I made in the Opinion about the approximate ten-year period after 2012. I have
given consideration to the average net wage loss figures set out in the Omnibus Report by
Mr Davies, although as he mentions these do not include pension deductions. It is clear that
only a limited amount of further work would have been done prior to 2012, and the vast
majority of loss of earnings is after that date. On that basis, it would not be appropriate,
when applying interest, to backdate the vast majority of loss of earnings to before that date.
As it is not clear precisely when during the period from 2012 until the proof the work would
have taken place, the pragmatic approach is that it would have been at various times across
the board. It is again not possible to approach matters other than in very broad terms and in
my view the best that can be done in attributing wage loss to these three periods, in
succession, is 5% (£17,500) up to 2012, 45% (£157,500) from 2012 until early 2025, and 50%
(£175,000) thereafter.
[14]
In cases where there are serious imponderables of this kind, in particular identifying
the times when the pursuer would have been at work but for the St Mark's abuse, it is
appropriate to apply interest of half of the standard amount, resulting in 4%. This applies
from the starting point of the particular period. The alternative would have been to apply
interest at 8%, but only from half-way through each particular period. This would have
given the same result. So, taking the standard approach, from 1994 to 2012, the outcome is
4% of £17,500 over a period of 31 years, resulting in £21,700. Then, from 2012 until the end
of the proof in early 2025, the outcome is 4% over a period of some 12 years, meaning 48%
of £157,500. This results in interest in the sum of £75,600. The total is therefore £97,300.
6
[15]
It is not possible to engage in a fully detailed calculation of the effect of the interim
payment amounts on the interest, given the approach I have had to take. In the Opinion I
have already deducted the interim payments from the overall sums found due. All that can
be said is that the interest applying to the past loss should be reduced slightly because of the
interim payment amounts having been made. I shall therefore reduce this amount of
interest on past wage loss to £95,000.
Conclusion
[16]
The imponderables create significant problems in arriving at precise arithmetical
figures for interest on past wage loss. However, there plainly has been some past wage loss
and interest falls to be applied. Doing what I can, based on the limited information, I have
concluded that the total amount of interest on that past wage loss is £95,000. When added to
the amount of interest on solatium (£122,319) the full amount of interest awarded is £217,319.