SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS AT ABERDEEN

2014SCABE41

A1454/03

                                                                               JUDGMENT

by

SHERIFF PRINCIPAL DEREK C W PYLE

in causa

GEORGINA MURDOCH, residing at 4 Newtonhill Road, Newtonhill, Stonehaven, Kincardineshire AB39 3TU

Appellant

against

AIRTOURS HOLIDAYS LIMITED, a company incorporated under the Companies Acts and having its registered office at Parkway One, Parkway Business Centre, 300 Princess Road, Manchester M14 7QU

Respondents

Aberdeen, 24 June 2013

The Sheriff Principal, having resumed consideration of the cause, Allows the appeal; Allows the appellant’s Minute of Amendment, number 23 of process, to be received; Ordains the respondents, if so advised, to lodge Answers thereto within 21 days; Remits the cause to the sheriff to appoint a date for a hearing under Rule 18.3 of the Ordinary Cause Rules 1993 and thereafter to proceed as accords; Finds the respondent liable in the expenses of the appeal and Remits an account thereof when lodged to the Auditor of Court to tax and to report.

Introduction

[1] In his introduction to the Report of the Scottish Civil Courts Review (2009), Lord Gill described the Scottish civil courts as providing “a service to the public that is slow, inefficient and expensive”. If a member of the public sought an example in support of that description, he would need to look no further than the present proceedings.

[2] This is a personal injuries action in which the appellant avers that while on a package holiday in 2000 in Mallorca she contracted Legionnaires Disease which was caused by conditions in her apartment. She sues the respondents as the organisers and retailers of the package holiday. At the time of the holiday, the appellant was aged 56; she is now in her 70^th year. She avers that she was in intensive care in a hospital in Palma. She was taken by air ambulance back to Scotland. She also avers that she suffered severe brain injury as a result of contracting the disease, which has caused her to have cognitive, emotional and behavioural difficulties. Accordingly, the litigation is a significant one, at least in sheriff court terms, and is, if the appellant’s averments on record are to be believed, a matter of considerable importance to her and her family. Whatever advice was given by her solicitors when she first considered making a claim for compensation, it is scarcely likely that it would have included a prediction that nearly 13 years after the holiday she would not even be at the stage of a substantive hearing, never mind the action being long concluded.

The Procedural History of the Action

[3] There is a rule – well known to litigators – that once a case goes off the rails, it is very difficult to get it back on. But the extra ingredient in this case is that a decision by a judge of the Inner House of the Court of Session to enforce the rules in the face of the incompetence of the appellant’s solicitors made matters worse rather than better. That is not meant as a criticism of that decision; on the contrary. But it is a further indication of the harsh consequences which can potentially arise through the failings of professional advisers.

[4] The action was raised in August 2003, doubtless with the pending expiry of the triennium in mind. It was sisted for investigation in October of the same year. In 2005 the sist was recalled to authorise a letter of request to a court in Mallorca to obtain evidence; the action was continued sine die. Whatever activity was occurring behind the scenes, nothing happened in the court process for well over four years, when, in September 2009 (over six years after the action had been raised), the court allowed the appellant’s specification of documents. A further seven months went by before the court fixed an options hearing for May 2010. After further continuations, in June 2010 the court sisted the action pending the carrying out of a commission in respect of a specification of documents. In October of that year, the court fixed a diet of debate for December. That diet was discharged on the appellant’s motion, she having lodged a minute of amendment. This minute made certain detailed averments about the alleged cause of the appellant contracting the disease, namely in the hotel’s water tanks, and the hotel’s failures in that regard. Standing the state of the existing pleadings, it would have been obvious to any competent pleader that without the court allowing the record to be amended in terms of the minute of amendment the action was bound to be dismissed for want of relevancy and specification. It was therefore vital that the court was presented with the full history of the action at the point that it was to be persuaded to allow the record to be amended. Given that the action had by then been running for well over seven years, it was inevitable that the court would expect a detailed explanation of the reasons for the appellant seeking to amend her pleadings at such a late date. On one view, the only way to guarantee that all the relevant points were before the court was for the solicitor responsible to attend. But, at the very least, it would have been essential that any correspondent was fully instructed. On 2 February 2011, the sheriff refused to allow the record to be amended, but two weeks later allowed leave to appeal, having heard submissions from senior counsel who also appeared before me. He told me that the sheriff said that if at the hearing on 2 February she had been given the same information as was put before her at the later hearing she would have allowed the amendment. (She subsequently wrote a note to that effect.) With those words ringing in their ears, one would have anticipated that the appellant’s solicitors would have appealed to the sheriff principal, which would have ensured an early disposal. But for reasons that were not explained to me the solicitors decided it was better to appeal directly to the Inner House of the Court of Session, which was admittedly the appellant’s right. As events turned out, that was not a wise course. Before the Inner House the action was for a time sisted, albeit that the appeal was unopposed. On the sist being recalled, the appellants’ solicitors were aware (or ought to have been aware) that the appeal prints required to be lodged within seven days. They did not do so, with the result that the court (Lord Hardie sitting alone) pronounced an interlocutor refusing the appeal and remitting the cause to the sheriff to proceed as accords. On 14 June 2011, the Inner House refused the appellant’s motion to repone late and to allow the appeal prints to be received late. The court held that the motion was incompetent. On the return of the court process to Aberdeen, the court fixed a diet for 13 July 2011 to determine further procedure. That diet was continued to 27 July when the court was due to hear parties on the appellant’s motion to allow a further minute of amendment. It appears that her solicitors had second thoughts: the motion was dropped – and a diet of debate was assigned, although no date was fixed. Proceeding at their now customary leisurely pace, the appellant’s solicitors lodged – on 29 September 2011 (over two months after the last hearing) - the minute of amendment which is the subject of this appeal.

The Competency of the Motion to Amend

[5] Before me, senior counsel for the appellant very fairly conceded that the later minute of amendment was substantially the same as the minute which the sheriff had previously refused to allow. I was not invited to compare the minutes in any detail, and I have therefore not done so myself, but I proceed on the reasonable hypothesis that those parts of the later minute which were in the earlier minute are to a greater or lesser extent essential to avoid the appellant’s pleadings in their present unamended form being successfully attacked for want of relevancy or specification, or both. It is obvious, therefore, that the later minute was an attempt to allow in the earlier amendment by the back door. The sheriff refused to allow the minute to be received. In his comprehensive note he explains that he considered that the motion was incompetent, given that to grant it would allow amendment in a manner which had already been refused by the court. In the event that he had decided that the motion was competent, he would have granted it for a number of reasons which he fully sets out.

[6] The first question I have to decide is whether the sheriff was right to conclude that to grant the motion would have been incompetent. Senior counsel for the appellant regarded this as his secondary submission. (I discuss, albeit briefly, his primary one below.) He submitted that the minute was different, albeit also substantially similar, to the previous minute; that the motion to allow it to be received was at a later date and in different circumstances, not least because of what had occurred before the Inner House. It was always open to a party to seek to amend his pleadings at any point in an action. Thus the competency of the matter was not in doubt; the issue was whether the court in the particular circumstances should exercise its discretion in favour of the party seeking to amend.

[7] The agent for the respondents submitted that the sheriff was correct on the question of competency. The effect of the appeal before the Inner House being dismissed was that the sheriff’s interlocutor was final and incapable of review. Reference was made to Arthur v Lindsay (1895) 22R 417; MacGown v Cramb (1897) 24R 481; Manchester and County Bank Ltd v Moore 1909 SC 246; Clark v Comrie 1910 1 SLT 404; J & J Fraser v Smith 1937 SC 667; McCue v Scottish Daily Record & Sunday Mail Ltd (No 1) 1998 SC 811; Macphail, Sheriff Court Practice (3^rd Edit.) Chapter 18.

[8] There can be no doubt that a motion to allow a minute of amendment to be received is a competent motion. In my opinion, the fact that it is an attempt, at least in part, to review an earlier interlocutor does not make it incompetent. But that does not mean that that recognition should be ignored. It is simply a factor, in most cases a very significant, if not decisive, one, which the court should take into account in deciding, in the exercise of its discretion, whether to grant the motion.

[9] Senior counsel was not inviting me to review the previous interlocutor. Thus the authorities to which I was referred are not directly in point. On the other hand, if it turned out that the earlier interlocutor was a final one and therefore was incapable of review that would simply strengthen the importance of the factor which I have outlined above.

[10] The respondent’s agent sought to rely upon certain authorities (referred to above) which predated the decision of the Full Bench in McCue, including the two authorities which were expressly overruled. I do not agree with that approach. The essence of the decision in McCue was that the issue is essentially one of statutory construction where there is on the one hand a provision which allows an appeal court to review all prior interlocutors and on the other hand a provision which declares an interlocutor to be final and thus incapable of review (at p 820):

“The general intention of sec 52 of the 1868 Act and the successive rules which were derived from it was to enable the court, when entertaining a competent reclaiming note or motion, to review prior interlocutors which had not been previously reclaimed. If, in spite of that provision the review of a particular interlocutor is not competent, by which we mean that the court cannot review it, such a restriction has to be found, in our opinion, in some other provision which confers such an immunity from review. In accordance with the normal construction of statutory provisions such an immunity may be conferred either by express language to that effect or by necessary implication.”

But in identifying what is a final interlocutor, such as to confer such immunity, a distinction has to be drawn between, on the one hand, “a rule which excludes the subsequent review of a prior interlocutor if it is not to be reclaimed within the period allowed for a reclaiming motion”, and, on the other, “a provision which merely delimits the period in which the prior interlocutor may be reclaimed”. Thus, to “treat a provision of the latter type as excluding the subsequent review of the interlocutor would, in effect, eliminate the scope for the use of Rule 38.8(1), since ex hypothesi that rule is concerned with prior interlocutors which have not been reclaimed in accordance with the appropriate provision for this purpose” (ibid).

[11] The equivalent provisions in the sheriff court are Section 29 of the Sheriff Courts (Scotland) Act 1907, which provides that an “appeal shall be effectual to submit to review the whole of the interlocutors pronounced in the cause…”, and r. 31.2 of the Ordinary Cause Rules 1993 which provides for applications for leave to appeal to be made within seven days. There is no provision similar to Rule of Court 38.5(6) which provides that the decision of a Lord Ordinary to grant or refuse leave to reclaim is final and not subject to review. Following the reasoning in McCue, it seems to me that as a matter of statutory construction the previous interlocutor in the instant case is not final and therefore incapable of review, because r.31.2 is “a provision which merely delimits the period in which the prior interlocutor may be reclaimed”.

[12] But that conclusion takes one only so far - because in the instant case the previous interlocutor was competently and timeously appealed. Thus the real question I have to decide on the issue of finality is what the effect is of the appeal being refused by the Inner House. Does that render the previous interlocutor final? Neither party was able to direct me to any authority which might be in point; nor were they able to assist me in identifying any point of principle which might offer an answer to that question. One approach might be that the Inner House refused the appeal not after a substantive hearing but because of a technical error by the appellant’s solicitors – and therefore the matter is still open to be decided upon by an inferior court. I do not find that approach to be an attractive one. It seems to me that it matters nought the reason why the Inner House has refused the appeal. That decision cannot be disregarded. Accordingly, in my opinion, I must treat the previous interlocutor, having been subject to an unsuccessful appeal, as final and incapable of review.

[13] But if I am correct about the competency issue, the finality of that interlocutor is not fatal to the appellant’s case. And the sheriff having wrongly decided the matter on competency and thereby not having exercised his discretion at all, it follows that the matter is at large for me to determine.

Should Amendment be Allowed?

[14] I therefore now turn to the central question in this appeal which is whether I should in the exercise of my discretion grant the appellant’s motion.

[15] Under reference to the well-known dicta in Thomson v Glasgow Corporation 1962 SC (HL) 36, per Lord Justice-Clerk Thomson at p52 and Lord Patrick at p55, and subsequent cases, Macphail, at para 10.14, summarises the correct approach which the court must take:

“Amendment should be allowed if it is necessary for the purpose of determining in the existing cause the real question in controversy between the parties, and if allowance would not result in injustice to the other party not capable of being compensated by an award of expenses and the attachment of any other conditions which seem just. The critical issue is usually whether the opponent of the party seeking leave to amend would be unfairly prejudiced by allowance of the amendment.”

[16] Thus the issue is one of prejudice. But that does not mean that the conduct of the party seeking leave to amend is irrelevant; a situation could arise where there is prejudice to the opponent but that little or no fault for it was caused by the former. Senior counsel for the appellant was, he said, content to rely upon the reasoning of the sheriff in his note in which he fully set out the competing arguments on whether the amendment would have been allowed in the event that he had not held the motion to be incompetent. The agent for the respondents also referred to the note and, in so far as she alluded to the facts and circumstances and the competing arguments on whether the amendment should be allowed, did not introduce any new argument in favour of the respondents’ position.

[17] Senior counsel did not seek to draw a distinction between a motion to allow a minute of amendment to be received and a motion to allow the record to be opened up and amended in terms thereof. I think he was right to do so. The underlying issue before the sheriff was whether the appellant should be allowed to continue with the action at all, given that later refusal of the amendment of the record would inevitably have that as its consequence. There was little merit in allowing the minute to be received and then putting the respondents to the expense of lodging answers if the sheriff was of a mind to refuse subsequent amendment of the record.

[18] In his note the sheriff sets out in detail both the competing submissions of the parties and the reasons why, if he had not decided that the motion was incompetent, he would have granted the motion. I concur with his reasoning. In particular, I agree with his conclusion that on the submissions made before him the only prejudice to the respondents is that the amendment will improve the appellant’s position. It is significant that the appeal to the Inner House was not opposed. If the respondents were truly prejudiced, it is highly unlikely, if not inconceivable, that they would not have opposed it. There was no guarantee that the Inner House would have taken the same view as the sheriff did in her note prepared subsequent to her refusal of the motion. As a matter of policy, it must rightly be a concern to the court that the appellant has in effect recovered her position by subverting the decisions of the court, not least that of the Inner House. But that is offset by the fact that this happened only because of the failures of the appellant’s solicitors, rather than by anything she herself had done. The lack of opposition by the respondents in the Inner House confirms that this case is a very special one on its facts and in no sense should be seen as an encouragement to other parties in the future that decisions of any court can be easily circumvented.

The Appellant’s Primary Submission

[19] I mention the appellant’s primary submission only briefly because, in the event, the conclusion I have reached renders it unnecessary to decide upon it. Senior counsel moved me to allow the record to be amended in terms of the minute of amendment. This, he submitted, was simply an exercise of the right of any party to seek to amend at any time during proceedings, whether on appeal or otherwise. I accept that this is a different motion in a technical sense, but the arguments for and against it are the same. It would be have been more relevant if I had agreed with the sheriff that the motion before him was incompetent, but I say no more about it.

Decision

[20] The appeal is allowed. It will be for the sheriff to decide whether to allow the record to be amended in terms of the minute of amendment and answers, if lodged. It was agreed that expenses should follow success.  Although not strictly required without a period of adjustment, I have nevertheless provided expressly for the sheriff to appoint a hearing on the minute and answers, in accordance with the usual practice. I have done so to ensure that the process is put before the sheriff for that to be done, rather than to rely on the parties, particularly the appellant, to do so.

Postscript

[21] The reasons for the dilatoriness of the appellant in this action were not explored, other than a concession by senior counsel that in hindsight the appellant should have proceeded with a commission to recover documents. One possible conclusion from the bare facts I have outlined is that this was always intended to be a speculative action which relied upon the respondents’ evidence following their own inquiry into the incident and that the appellant had never intended to carry out the necessary ingathering of evidence to support her averments of fault. That is not necessarily a wrong approach, but it is the duty of a litigant’s professional advisors to ensure that they have a proper factual basis for the averments in the pleadings. Where an initial writ is required to avoid the expiry of triennium, it is ethical to make general averments albeit without the benefit of the fruits of the full investigation, but in such circumstances it is particularly important to carry out such investigation with proper dispatch to ensure so far as possible that by the time the Record is closed the averments of fact are properly supported by evidence. It is no excuse to say that the expense of the investigation was prohibitive.