Scottish Civil Law Reports, issue 3, June 2016

Mental health— Failure to draft regulations LS, Petitioner (OH) 279

Contract— Breach of contract—Whether third party owed contractual duty STV Central Ltd v Semple Fraser LLP (in liquidation) (IH) 259

Parent and child— Children’s hearing—Whether ill-treatment ‘wilful’ JM v Locality Reporter, Glasgow (IH) 308

Sale of goods—Whether material breach Glen Clyde Whisky Ltd v Campbell Meyer & Co Ltd (OH) 341 Human rights— Prisoners’ mail Beggs, Petitioner (OH) 328 Immigration— Asylum—Appeal—Whether compelling reason HH v Secretary of State for the Home Department (IH) 235

Reparation— Negligence—Fire Service clearing snow from roof Mackay v Scottish Fire and Rescue Service (OH) 249 Negligence—Whether third party owed delictual duty STV Central Ltd v Semple Fraser LLP (in liquidation) (IH) 259 Town and Country planning— Appeal—Whether procedure unfair Brown v Scottish Ministers (IH) 297

June 2016 2016 S.C.L.R. 235−360

SCOTTISH CIVIL LAW REPORTS

Agency— Actual authority Ronald v The Duke of Buccleuch (OH) 289

2016 S.C.L.R. 235–360

Scottish Civil Law Reports Edited by Sheriff Michael J Fletcher Beggs, Petitioner (OH) 328 Brown v Scottish Ministers (IH) 297 Glen Clyde Whisky Ltd v Campbell Meyer & Co Ltd (OH) 341 HH v Secretary of State for the Home Department (IH) 235 JM v Locality Reporter, Glasgow (IH) 308

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LS, Petitioner (OH) 279 Mackay v Scottish Fire and Rescue Service (OH) 249 Ronald v The Duke of Buccleuch (OH) 289 STV Central Ltd v Semple Fraser LLP (in liquidation) (IH) 259

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A COURT OF SESSION

5 May 2015

Inner House (Extra Division) Lord Brodie, Lord Bracadale and Lord Drummond Young HH

Petitioner (Reclaimer)

B

against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Immigration—Asylum—Appeal—Refusal of right to appeal to Upper Tribunal—Whether error of law—Whether compelling reason to allow appeal to proceed The petitioner and reclaimer is a Nigerian national. She entered the UK on 14 November 2005 with a six-month visitor’s visa. She was granted an extension to her visa, as a dependent of her husband, until 20 March 2008 to coincide with his visa. The petitioner has three children born in the UK; one daughter is significantly physically disabled. After her visa expired the petitioner continued to live in the UK with her husband and children, two of whom attended primary school in Glasgow and the daughter attended a specialist school for disabled children. On 1 July 2010 the petitioner’s husband made a claim for asylum which was rejected, as was his appeal, his appeal rights became exhausted on 29 September 2010. On 9 March 2011 the petitioner claimed asylum in her own right so that her husband and children were dependants on her claim. She claimed that she would be at risk of mistreatment by being forced into marriage or killed by relatives should she have to return to Nigeria and she also claimed that the best interests of her children and their rights as guaranteed by art.8 of ECHR provided a lawful basis for her to remain in the UK. Her claim was also refused. In due course her appeal was refused and a finding was made that she should be returned to Nigeria along with her husband and children. She was refused permission to appeal to the Upper Tribunal and sought judicial review of that decision. The Lord Ordinary dismissed the petition and the petitioner reclaimed.

In her statement of issues, the petitioner stated that the central issue was whether the grounds in the petition identified a material error of law in the Upper Tribunal decision to refuse permission to appeal and whether that error constituted a compelling reason. Four other issues were set out, namely whether the Upper Tribunal erred by acting irrationally and perversely; whether the Upper Tribunal operated on a misapprehension by relying on a previous immigration judge’s decision; whether the Upper Tribunal had taken proper account of the country information on the situation the petitioner’s child would face on return; and whether the correct approach had been taken in assessing the best interests of the child.

The grounds of appeal were that the Lord Ordinary erred in law (1) in failing to hold that the First-tier Tribunal and Upper Tribunal had erred in their approach to the art.8 issues raised by the removal of the disabled child from the UK; (2) in finding that L D v Secretary of State for the Home Department (art.8 — best interests of child) Zimbabwe did not apply to the reclaimer’s children; (3) failing to hold that the First-tier Tribunal and Upper Tribunal had erred in failing to apply s.55 of the Borders Citizenship and Immigration Act 2009 which created a statutory obligation to have regard to the need to

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safeguard and promote the welfare of the child; and (4) failing to hold that the First-tier Tribunal and Upper Tribunal had erred by failing to recognise that where one was dealing with a child the normal high test applied in relation to art.3 ECHR ought to be modified and that there are circumstances in which the threshold will be reached in relation to a child where it would not be reached in the case of an adult.

The court emphasised that what it was concerned with in the instant application for judicial review was the legality of the decision of the Upper Tribunal refusing permission to appeal and it was not an appeal from the decision of the First-tier Tribunal refusing the petitioner’s appeal from the decision of the respondent. There was an underlying constitutional issue as to jurisdiction and accordingly competence and function. The jurisdiction of the court was restricted to reviewing the legality of the Upper Tribunal’s decision on an application for permission and it was the grounds presented to the Upper Tribunal on the application for permission which provided the framework for any consideration of the legality of the decision.

Held (1) that a petition seeking judicial review of a decision by the Upper Tribunal refusing permission to appeal which had not clearly and unequivocally averred not only a specific error on the part of the Upper Tribunal in point of law when refusing permission, but also either the important point of principle or practice not yet established or the other compelling reason why an appeal should have been allowed to proceed would have been irrelevant and accordingly would have fallen to have been dismissed (para.19); (2) that the grounds of appeal provided no basis for interfering with the decision of the Lord Ordinary and did not demonstrate a compelling reason for reducing the refusal of permission and the First-tier Tribunal had taken into account all factors which on the evidence before it, were said to impinge on the best interests of the children (paras 30, 37); and (3) that whatever might have been said as to the merits of the intense level of scrutiny of administrative decision-making, it was no longer to the point once what was in issue was whether the second appeals test had been satisfied (para.38); and reclaiming motion refused.

Cases referred to:

E

F

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A (Nigeria) v Secretary of State for the Home Department [2013] CSIH 62; 2014 S.C. 1; 2013 S.L.T. 1132 Bensaid v United Kingdom [2001] ECHR 82; (2001) 33 E.H.R.R. 10 Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39; [2009] 1 A.C. 115; [2008] 3 W.L.R. 166; [2008] 4 All E.R. 1146 Eba v Advocate General for Scotland [2011] UKSC 29; 2012 S.C. (U.K.S.C.) 1; 2011 S.L.T. 768 L D (Zimbabwe) v Secretary of State for the Home Department [2011] Imm AR 99 P R (Sri Lanka) v Secretary of State for the Home Department [2012] 1 W.L.R. 73 R (on the Application of Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663; [2011] 3 W.L.R. 107; [2011] 4 All E.R. 127 R v Secretary of State for the Home Department (ex parte Robinson) [1998] Q.B. 929; [1997] 3 W.L.R. 1162; [1997] 4 All E.R. 210 R (on the application of O A) (Nigeria) v Secretary of State for the Home Department, [2012] EWHC 3128 (Admin) R (on the application of T S) v Secretary of State for the Home Department, [2011] Imm AR 164 Uner v Netherlands [2006] ECHR 873; (2006) 45 E.H.R.R. 14 Z H (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 A.C. 166; [2011] 2 W.L.R. 148; [2011] 2 All E.R. 783.

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The full circumstances of the case and the arguments of counsel are to be found in the following opinion of the court which was delivered by Lord Brodie on 5 May 2015.

A

LORD BRODIE Introduction

[1] The petitioner and reclaimer is a Nigerian national. She was born in 1989.

She married her husband in 2005. On 14 November 2005 she entered the UK with a six-month visitor’s visa issued on 28 October 2005. The petitioner’s husband had arrived in the UK in 2003 on a student visa and thereafter obtained a MBA in marketing. He was granted a further visa which expired on 20 March 2008. As a dependent of her husband, the petitioner had been granted an extension to her visa, also until 20 March 2008.

[2] The petitioner and her husband have three children who were born in the UK in, respectively, 2006, 2007 and 2009. Their daughter N, born in 2007, is significantly physically disabled by reason of neonatal ischaemic encephalopathy. Her condition is one of quadriplegic cerebral palsy.

[3] Notwithstanding expiry of her visa, the petitioner has continued to live in the UK, with her husband and children. The two elder children attend primary school in Glasgow. The school attended by N is a specialist school for disabled children. She is in receipt of a variety of treatments in order to ameliorate her condition.

B

C

Procedural history

[4] On 1 July 2010 the petitioner’s husband made a claim for asylum which was rejected by the respondent on 22 July 2010. His appeal against that decision was rejected by the First-tier Tribunal (FTT) (constituted by Immigration Judge Forbes) on 13 September 2010. His appeal rights became exhausted on 29 September 2010.

[5] On 9 March 2011 the petitioner claimed asylum in her own right, her husband and children therefore being dependants on her claim. The petitioner claimed that she would be at risk of mistreatment by being forced into marriage or killed by relatives should she have to return to Nigeria. She also claimed that the best interests of her children and their rights as guaranteed by art.8 of ECHR provided a lawful basis for her to remain in the UK. The respondent refused the petitioner’s claim, certifying it under s.96 of the Nationality, Immigration and Asylum Act 2002 and thereby removing what would otherwise have been a right of appeal under s.82(1) of the 2002 Act. The petitioner thereupon sought judicial review of the respondent’s decision to certify her claim. That application was successful and the certification was reduced. The petitioner accordingly appealed the refusal of her claim by the respondent.

That appeal was refused by the FTT (constituted by Judge of the First-tier Tribunal Bradshaw) on 10 September 2012. The FTT refused the petitioner’s appeal in relation to her fear of being at risk from relatives. It also found that it would be proportionate to return the petitioner, her husband and children to Nigeria, having regard to the best interests of the children. It is that finding which the petitioner has sought to challenge in subsequent proceedings.

[6] The petitioner submitted grounds to the FTT for permission to appeal the determination of 10 September 2012 to the Upper Tribunal (UT), in terms of s.11(4)(a) of the Tribunals Courts and Enforcement Act 2007. The FTT refused permission to appeal in a decision dated 4 October 2012. The petitioner then submitted grounds for permission to appeal directly to the UT,

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in terms of s.11(4)(b) of the 2007 Act. That application was refused by the UT in a decision dated 22 October 2012.

[7] The petitioner then applied for judicial review of the decision of the UT refusing permission to appeal. First orders in her petition were granted on 27 March 2013 with a procedural first hearing being assigned for 15 May 2013.

On 15 May 2013 the petition called before Lord Burns when the diet was continued until 23 May 2013 for the purpose of discussion of preliminary pleas with an estimated duration of one full day. On 23 May 2013 the petition called before Lord Armstrong when it was continued. On 18 June 2013 the petition was sisted “to await the comments of the Inner House” in the opinion which was reported as A v Secretary of State for the Home Department. The sist having been recalled, on 3 December 2013, Lord Armstrong heard parties on the petition and answers. He made avizandum. On 14 February 2014 Lord Armstrong dismissed the petition.

[8] The petitioner now reclaims against the interlocutor of 14 February 2014.

The statement of issues

[9] As at the date of the procedural hearing in the present case on 15 May 2013, Practice Note 1 of 2012 was in force. That practice note provided that each party who was to be represented at a procedural first hearing was to exchange and lodge in process not later than two days before that hearing a short statement of issues and of the legal authorities on which he or she relied.

The purpose of the statement of issues is to allow the matters in dispute and the most efficient means of their resolution to be identified. Put short, a statement of issues is a party’s explanation of what his or her case is about. It defines the parameters of any subsequent discussion.

[10] A statement of issues was duly lodged on behalf of the petitioner. It was set out in five paragraphs. In para.1 of the statement the central issue was stated as being whether the grounds in the petition identify a material error of law in the UT decision to refuse permission to appeal and whether that error constitutes a compelling reason in terms of Eba v Secretary of State for the Home Department at paras 44–57.

[11] In paras 2–5 of the petitioner’s statement of issues there are set out four further issues as follows: “2. The first issue identified at para.16 of the petition is whether the UT erred, by acting irrationally and perversely, in failing to sustain the ground that the FTT had erred in allowing the assessment of the petitioner’s daughter’s medical needs under art.3 ECHR, (at paras. 309–314) to taint the assessment of the best interests of the child at paras. 348 onwards. In particular whether there is a different question to be asked in relation to art.8, ECHR cases concerning the best interests of the child where the child is suffering from a medical condition from that in relation to medical cases under art.3, ECHR (see case law identified in para.16 of the petition).

3. The second issue at para.17 is whether the UT has operated on a misapprehension as the FTT makes reference to the previous immigration judge’s (Immigration Judge Forbes who heard the petitioner’s husband’s claim) decision at para. 348–358 in relation to [N]. In particular whether the UT and FTT have erred in relying on the previous immigration judge’s decision when country information is relevant in assessing the best interests of the child and the previous immigration judge did not have the advantage of having sight of the up-to-date case law on the best interests of the child (see case law referred to in para.17; also see L D v Secretary of State for the

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Home Department (art.8—best interests of child) Zimbabwe for relevance of country conditions).

4. The third issue at para.18 is whether the UT has taken proper account of the country information on the situation the petitioner’s child would face on return, if so, whether adequate reasons have been given for finding it would still be in the best interests of the child to be returned to Nigeria, and if adequate reasons had been given, whether the decision to return the child to Nigeria is unreasonable in the light of the country information.

5. A fourth issue at para.19 divided into separate points is whether the correct approach has been taken in assessing the best interests of the child in relation to the points raised in this paragraph. Reference is also made to the case law referred to in para.19 of the petition.”

A

B

[12] The separate points making up the fourth issue, as set out in statement 19 of the petition are contentions that the FTT made errors of law as follows: (a) By failing to take into account that weighty reasons are required to justify separating a child from a community in which he or she had grown up and lived for most of his or her life. (b) By failing to bear in mind that it is important when considering a child’s education to have regard not just to the evidence relating to any shortterm disruption of current schooling that will be caused by any removal but also to that relating to the impact on a child’s educational development, progress and opportunities in the broader sense. The finding of the UT is perverse and irrational in failing to grant permission to appeal in light of the country information on the educational facilities in Nigeria. (c) By erring in law and failing to bear in mind that the interests of the minor children and their welfare are a primary consideration in the balance of competing considerations in this case and their educational welfare as part of the UK education system points strongly to a continued residence here as necessary to promote these interests. The UT has not dealt with this point. (d) By failing to bear in mind the factors pointing for and against the best interests of the child either staying or going must not be overlooked. The FTT has overlooked factors in favour of the children remaining in the UK. The FTT has failed to keep in mind the “overall” factors in assessing the best interests of the appellant’s children.

C

D

E

The grounds of appeal

[13] The grounds of appeal aver that the Lord Ordinary erred in law in: “(i) failing to hold that the FTT and UT had erred in their approach to the art.8 issues raised by the removal of N from the UK. The FTT had a great deal of evidence that the previous FTT had not had. It was irrational et separatim unreasonable simply (at para.355) to adopt the reasoning of that tribunal on the issue of art.8. In particular the FTT does not make clear what balancing exercise is taking place. Insofar as the FTT itself carried out an assessment under art.8 (paras 356–358) the FTT applied the approach for adults set out in Bensaid [v United Kingdom] which requires to be modified in respect of a child—Z H (Tanzania) v Secretary of State for the Home Department at para.33. (ii) finding that L D v Secretary of State for the Home Department (art.8— best interests of child) Zimbabwe did not apply to the reclaimer’s children.

Neither the FTT or the UT directed themselves to determining whether the reasons given amounted to very weighty reasons for the removal of the

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reclaimer and her family. The reasons given did not amount to very weighty reasons in the light of the birth and length of residence of the children in the UK, and given the interests of the minor children and their welfare are a primary consideration in the balance of competing considerations in this case and their educational welfare as part of the UK education system point strongly to their continued residence here as necessary to promote these interests, together with the treatment being received by N. When balanced against other considerations, the FTT and UT have not shown that very weighty reasons are present. Birth, and in particular the circumstances in which a child is born, forms part of a child’s private life guaranteed by art.8 of the Convention. (iii) failing to hold that the FTT and the UT had erred in failing to apply s.55 of the Borders Citizenship and Immigration Act 2009 which creates a statutory obligation to have regard to the need to safeguard and promote the welfare of the child. Safeguarding and promoting the welfare of the children includes preventing impairment of children’s health or development (where health means ‘physical or mental health’ and development means ‘physical, intellectual, emotional, social or behavioural development’) ensuring children are growing up in circumstances consistent with effective care and undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully. The FTT and UT reached decisions that no reasonable tribunal would have reached. The decisions of the FTT and UT were perverse, as it could not be said that N’s welfare would be safeguarded and promoted by returning her to Nigeria as this would impair both her health and development. (iv) failing to hold that the FTT and the UT had erred by failing to recognise that where one is dealing with a child the normal high test applied in relation to art.3 ECHR ought to be modified and that there are circumstances in which the threshold will be reached in relation to a child where it would not be reached in the case of an adult—S Q (Pakistan) v Upper Tribunal (Immigration and Asylum Chamber) [2013] EWCA Civ 1251.

Had the FTT and UT had this in mind they would not have reached the same decision in light of the information before them. The FTT erred in applying the adult test for art.3. The FTT further erred (in para.348) in dealing separately with the issue of discrimination rather than with the child’s situation as a whole. The Lord Ordinary erred in not reversing the tribunals in this regard.”

E

The nature of this application for judicial review

F

[14] This is an application for judicial review of a refusal by the UT to exercise its jurisdiction as conferred by s.11(4)(b) of the Tribunals, Courts and Enforcement Act 2007 to grant permission to appeal to the UT on a point of law arising from the decision of the FTT refusing the petitioner’s appeal. A number of things flow from that. Having regard to the terms of the grounds of appeal and the way in which the reclaiming motion was presented on behalf of the petitioner, we will spell these out before going further, albeit that doing so is no more than repeating what has been authoritatively discussed in a now familiar line of cases: R (Cart) v Upper Tribunal; Eba v Secretary of State for the Home Department; and A v Secretary of State for the Home Department.

[15] It is to be emphasised that what the court is concerned with here is an application for judicial review of the legality of the decision of the UT refusing permission to appeal; it is not an appeal from the decision of the FTT refusing the petitioner’s appeal from the decision of the respondent. Underlying this is a constitutional issue as to jurisdiction and accordingly competence and function. It is the UT which has the statutory jurisdiction to determine appeals from the FTT and the jurisdiction, on a second application, to grant or refuse

G

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permission for such appeals. This court has the more restricted jurisdiction of reviewing the legality of the UT’s decision on an application for permission.

Among the implications of that is a very simple one: this court must begin its task by looking at the decision that the UT was asked to make. An application for permission to appeal is made under reference to specific grounds. It is the legality of a refusal of permission in respect of these specific grounds which is put in issue by the petitioner’s application for judicial review. True, that proposition cannot be stated entirely without qualification. Regard must be had to what was held in R v Secretary of State for the Home Department (ex parte Robinson) at p.946: where there is a readily discernible point favourable to an applicant which has strong prospects of success in an appeal, then it would be for the UT to grant permission. Nevertheless, it is the grounds presented to the UT on the application for permission which provide the framework for any consideration of the legality of the UT’s decision. In the present case that framework was respected in the drafting of statements 16–19 of the petition and in the drafting of the statement of issues; they essentially reiterate the proposed grounds of appeal to the UT. The same cannot be said for the grounds of appeal to this court. That is not only productive of inconvenience.

Embarking upon new lines of argument which were not put forward as proposed grounds of appeal to the UT risks confusion as to how the court should properly perform the function of judicial review in a case of this sort.

[16] The Court of Session has jurisdiction to entertain this petition because, with the refusal of permission by the UT, the petitioner has no other remedy available to her. However, she has no other remedy because she has availed herself of and thereby exhausted her primary remedies: an administrative consideration of and reasoned decision on her application, a full appeal on the merits before a judicial decision-maker, and two applications for permission to appeal further with a view to correction of any error of law. The matters which the petitioner has put in issue are of the greatest importance to her and her children and the petitioner is entitled to have them considered fully. But, in a rational and proportionate system of decision-making, full consideration does not mean interminably repeated reconsideration. As Lady Hale observed in Cart at para.41: “There must be a limit to the number of times a person can ask a judge to look at a question.” Here it cannot be said that the petitioner’s case has not been considered. Indeed, when concluding his submissions on behalf of the respondent, Mr McKendrick identified the hearing of the reclaiming motion as the ninth occasion when essentially the same contentions (whether put forward by the petitioner’s husband or by the petitioner) have been considered by relevant decision-makers. The point that Mr McKendrick was seeking to make was that, given this repeated scrutiny, it was surprising that no one had appeared to have spotted what Mr Bovey QC, on behalf of the petitioner, had described as the compelling nature of the contentions advanced.

That may be; this decision certainly comes at the end of a long series of decisions and must be seen in that light, but our point is a different one. The petitioner’s case had already been considered judicially on three occasions prior to her application for judicial review. That does not mean that the result of this process of judicial decision-making was necessarily the right one but it does mean that the respondent’s determination of the petitioner’s application for leave to remain has been examined by competent, and indeed specialist, judicial bodies, first in an unrestricted appeal and then, on two separate reviews of the petitioner’s complaint of error in point of law.

[17] That what is challenged is a decision by a judge of the UT as to whether an applicant should be permitted a second appeal, does not mean that the

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supervisory jurisdiction of the Court of Session is excluded. An argument to that effect failed in Eba, both in the Inner House and before the Supreme Court. However, that the petitioner has already had an appeal to a professional judge results in the grounds upon which the Court of Session will exercise its jurisdiction being markedly different from what may be described as traditional judicial review grounds. For the essentially pragmatic reasons discussed in Cart and adopted in Eba, where the challenge is to such a judicial decision, the supervisory jurisdiction is reserved for cases that are truly exceptional, and therefore rare. That the Court of Session considers the UT to have made an error of law is not determinative; a proportionate system must accommodate the possibility of a wrong decision having been made and it not being corrected.

What was decided in Eba is that if this court is to reduce the decision of the UT refusing permission to appeal, it must be satisfied of something else: that either (a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason justifying interference with that decision (the “second appeals test”). It is the second appeals test that defines the scope of the supervisory jurisdiction in this category of cases.

[18] Defining the parameters of the supervisory jurisdiction in this category of cases by reference to the second appeals test involves something more than simply adding an extra step in a process of reviewing the decision of the FTT on a first appeal. It effectively mandates a different approach to decisionmaking than that adopted in the generality of cases of judicial review. It has implications for the way in which a petition should be pled and, critically, it has consequences for the intensity with which review of the UT’s decision should be carried out. The matter was addressed in the opinion of the court delivered by the Lord Justice Clerk in A v Secretary of State for the Home Department. There (at para.37) the Lord Justice Clerk noted the divergence of approach that had emerged in the Outer House as to the correct approach to the second appeals test. On the one hand, there was the view that what was involved was “an expeditious and fairly summary process” of sifting out the exceptional strongly arguable appeal (A at para.39). On the other hand there was the view that because of the potentially harmful and sometimes fatal consequences that may occur in asylum cases “any examination by a judge, at whatever level. . .requires to be both detailed and very careful” (A at para.40).

The court in A disapproved the latter view and approved the former. The Lord Justice Clerk concluded the opinion of the court in these terms: “[43] . . . the court stresses that. . .the court’s role should be seen as a gate keeping or sifting one. The decision should proceed upon a petition which clearly and unequivocally avers not only a specific error on the part of the UT in refusing leave, but also either the important point of principle/ practice not yet established (Uphill v BRB (Residuary) Ltd, [2005] 1 W.L.R. 2070 Dyson LJ at para.18) or other compelling reason why an appeal should be allowed to proceed. Before the petition progresses, the court should be able, quickly and without difficulty, to identify from the averments the point or reason advanced.

[44] As was said in J D (Congo) v Home Secretary [2012] 1 W.L.R. 3273 (Sullivan LJ at para.23), no doubt the test must be sufficiently flexible to take into account the circumstances of the particular case. Nevertheless, as was stated in the same passage, the test is a ‘stringent one’. It is designed to allow review only in rare and exceptional cases (see Cart Lady Hale at paras. 23 and 31) in order to ensure that no ‘compelling injustice’ occurs (P R (Sri Lanka) v Secretary of State for the Home Department, Carnwarth LJ at para.6). The error normally requires to be one which ‘cries out for consideration’ (P R (Sri Lanka), Carnwath LJ at para.35), and not just

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potentially arguable, upon a reading of the petition. Insofar as an oral hearing may be required, it should be relatively short and certainly last no more than an hour. The court’s decision should be capable of succinct expression, at not much greater length than is currently employed by the UT itself, if refusing leave.”

[19] It follows from what was said by the Lord Justice Clerk in A that a petition seeking judicial review of a decision by the UT refusing permission to appeal which does not clearly and unequivocally aver not only a specific error on the part of the UT in point of law when refusing permission, but also either the important point of principle or practice not yet established or the other compelling reason why an appeal should be allowed to proceed, will be irrelevant and accordingly fall to be dismissed.

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B

Decision Overview

[20] When Mr Bovey opened his oral submissions in support of the reclaiming motion he conceded that he had not characterised the errors he maintained had been made by the FTT “in the Eba manner”. He further accepted that the petitioner’s pleadings did not meet what the court in A v Secretary of State for the Home Department had said was required. We would agree. In her petition, and her statement of issues, the petitioner pays lip-service to the need to establish a compelling reason but that is as far as she goes towards meeting the requirements consequential on the adoption of the second appeals test as set out in A v Secretary of State for the Home Department. Now it may be said that A was not advised until 6 June 2013, whereas first orders had been granted in this petition on 27 March 2013 and the statement of issues lodged by the petitioner presumably had been prepared prior to the first procedural hearing on 15 May 2013. However, that does not explain why it was not thought necessary to amend in the light of the decision in A v Secretary of State for the Home Department when the opinion of the court in that case became available.

The petition had, after all, been sisted on 18 June 2013 “to await the comments of the Inner House which are to be provided following discussion in the context of the reclaiming motion in (A v Secretary of State for the Home Department)”.

The hearing before Lord Armstrong after which the interlocutor of 14 February 2014 was pronounced did not take place until 3 December 2013.

[21] The petition avers that the FTT made a number of material errors of law which were such that the UT’s failure to grant permission to appeal in respect of them, or some or other of them, constitutes a compelling reason for reducing the UT decision. However, nowhere in the petition or statement of issues is it explained why it is contended that the particular supposed errors founded upon demonstrate a compelling reason or what exactly that compelling reason is. All that appears in the petition is what is averred at statement 20: “That the grounds (that is the respects in which it is contended that the FTT made errors of law as set out in statements 16–19 of the petition) demonstrate that there is a compelling reason for the court to reduce the decision of the UT refusing permission to appeal.” The statement of issues similarly fails to direct itself as to what is the compelling reason and why it is legally compelling (cf, P R (Sri Lanka) v Secretary of State for the Home Department at para.36).

[22] Coming then to the petitioner’s grounds of appeal to this court, they do not address compelling reason in any way whatsoever; they simply set out what are said to be the Lord Ordinary’s error in law in failing to hold that the

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FTT and UT had made a number of material errors. Moreover, they present the court with an additional challenge in linking the points of criticism of the FTT made in the grounds of appeal to this court with the points of criticism of the FTT made in the proposed grounds of appeal to the UT. While there is clearly an overlap, the points are not articulated in quite the same way or in the same order. While grounds of appeal (i)–(iii) have a basis in one or other of the proposed grounds of appeal to the UT (as restated in the statement of issues), that is not the case with ground of appeal (iv).

[23] Given these serious deficiencies, the question arose as to whether we should entertain the reclaiming motion at all. Albeit with some hesitation, we decided that we would. No pleading point had been taken on behalf of the respondent before the Lord Ordinary, nothing had been said at the procedural hearing in the Inner House and, although he put absence of compelling reason at the forefront of his submission that the reclaiming motion should be refused, Mr McKendrick did not insist on any such point before us.

[24] We shall discuss parties’ submissions, as they are set out in their respective written arguments and developed orally, under the heads of the petitioner’s four grounds of appeal.

Ground of appeal (i)

D

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[25] We would see ground of appeal (i) as taking up the second issue in the petitioner’s statement of issues (proposed ground of appeal (ii) to the UT) with an elaboration which does not appear to have been argued before the Lord Ordinary, which is that the FTT had erred in applying the approach taken by the European Court of Human Rights [ECtHR] in Bensaid whereas that it “had to be modified in respect of a child”, reference being made to Z H (Tanzania).

[26] As developed in written and oral argument, the second issue was a criticism of how the FTT (as constituted by Judge Bradshaw) had made its assessment of the proportionality of the removal of N from the UK, given her health problems and what was known about the facilities for dealing with these problems in Nigeria. The particular criticisms were that Judge Bradshaw had simply adopted the reasoning in the determination by the FTT (as previously constituted by Judge Forbes) which had heard the petitioner’s husband’s application in 2010 and that Judge Bradshaw had failed to explain how he balanced the factors bearing on proportionality. As Mr Bovey put it, although the evidence which had been put before Judge Bradshaw and which had not been available to Judge Forbes had been narrated at length in Judge Bradshaw’s determination, Judge Bradshaw had not said what he made of it, there was nothing in the way of analysis, Judge Bradshaw had simply abdicated responsibility for fact-finding to his predecessor, Judge Forbes.

[27] We are not persuaded that Judge Bradshaw made any error of law in the way he utilised the findings of Judge Forbes in the earlier determination.

It is true that at paras 348–354 of Judge Bradshaw’s determination there are narrated a number of findings from the previous determination. However, it is not true to say that he simply adopted them. Rather, at para.355 Judge Bradshaw says that he agrees with the views of Judge Forbes, as narrated in the preceding paragraphs. That was something that it was open to him to do.

Judge Bradshaw had before him other evidence about N’s medical condition which he said he had considered and which he summarised at paras 330–347 of his determination. None of this material seems to have been disputed and Judge Bradshaw’s formulation “I noted” can be taken as his acceptance of the evidence which he then summarised. Judge Bradshaw therefore had a basis

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upon which to agree with the previous findings. Reading his determination as a whole, it appears to us that Judge Bradshaw was fully aware that he had heard additional evidence to that which had been led before Judge Forbes and that he had taken all of the evidence available to him into account.

[28] The decision in Bensaid v United Kingdom is referred to by Judge Bradshaw at para.356 of his determination. He relies on it for two purposes.

The first as authority for the proposition that treatment (or, conversely, the adverse consequences of an absence of treatment), may not be severe enough to result in a contravention of art.3 of the Convention but, nevertheless, bear on the issue as to whether art.8 is breached. The second point that Judge Bradshaw takes from that decision is that the fact that an applicant’s circumstances in the event of him or her being removed from the UK would be less favourable than those enjoyed in the UK, is not a decisive factor in determining the proportionality of removal. That latter proposition is supported by the decision in Bensaid, which involved the removal of a schizophrenic suffering from psychotic illness to Algeria. However we understood Mr Bovey, to challenge its unqualified application where the person who would suffer the adverse consequences of a removal was a child.

Mr Bovey drew attention to what was said by Lady Hale in Z H (Tanzania) v Secretary of State for the Home Department at para.33: “In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration.”

[29] The reference to Z H (Tanzania) in ground of appeal (i) is a way of making a point which, as we would see it, is sought to be made, albeit in slightly different ways, in grounds of appeal (ii), (iii) and, indeed, (iv) and that is that, given N’s significant disability, the inferior facilities for ameliorating that disability which are available in Nigeria, and the obligation on decisionmakers to have regard to the best interests of a child as a primary consideration, the decision to remove the petitioner and her family from the UK must be regarded as disproportionate. That may have been a strong argument but simply because it was not accepted by the FTT, does not of itself amount to an error of law. Mr Bovey recognised that; hence his close examination of the FTT’s determination with a view to finding an indication of a misdirection.

He did not say that the FTT was not entitled to rely on Bensaid, rather that the reliance had to be more nuanced, given that a child was involved. At one point Mr Bovey suggested that the FTT’s determination failed to disclose the necessary anxious scrutiny. In our opinion this approach with its intense review of the FTT’s reasoning is just what the court in A v Secretary of State for the Home Department said should not be adopted, when it is the second appeals test which is in issue.

[30] This ground of appeal provides no basis for interfering with the decision of the Lord Ordinary.

A

Ground (ii)

F

[31] This ground takes up point (a) in the fourth issue in the petitioner’s statement of issues (proposed ground of appeal 2(i) to the UT). The premise upon which this criticism of the FTT is based is that “very weighty” reasons were required for the removal of the petitioner and her family from the UK. The Lord Ordinary decided that there was no such requirement in the present case. We agree. There was no error by the FTT in this regard and therefore nothing which can amount to a compelling reason.

[32] The petitioner’s argument that the FTT, and therefore the UT and the Lord Ordinary, made an error in law in this particular respect depends on an

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interpretation of what was said by Blake J in giving the decision of the UT in L D (Zimbabwe) v Secretary of State for the Home Department (art.8 best interests of child) at para.26. What he said was this: “Very weighty reasons are needed to justify separating a parent from a minor child or from the community in which he or she has grown up and lived for most of her life.”

There is no question of separating a parent from a minor child in the present case. As for the proposition that very weighty reasons are needed to justify separating a child from the community in which she has grown up and lived for most of her life, one might quite readily agree with that if what is being put forward is a generalisation about what is reasonable or proportionate. It is a different matter if the proposition is being put forward as a rule of law. We note that Blake J described it as a “principle” but we doubt whether he was intending to enunciate a legal rule. We would accept that a child’s residence in the UK for most or all of her life is a relevant circumstance pointing away from the proportionality of her removal, which circumstance may gain strength from the length of the residence, degree of integration in the community, extent of participation in education and precise immigration status. That the children and one of their parents all have indefinite leave to remain, as was the case in L D, may be a very powerful circumstance. However, that is as far as it goes.

Simply because the FTT in this case did not articulate its decision on proportionality in terms of “very weighty reasons” does not mean that it erred in law.

[33] Both Mr Bovey and Mr McKendrick referred for their respective purposes to what appears in the judgment of Silber J in R (on the application of O A) v Secretary of State for the Home Department. The Lord Ordinary had also been referred to this judgment and had found support for his conclusion that a requirement for weighty reasons as mentioned in L D, was not applicable to the present case. We do not see O A as capable of bearing the weight which has been sought to be put upon it. In the relevant passage of his judgment, Silber J is quoting from a letter from the Secretary of State. In that letter, there was reference to “the L D principle” and an assertion that the L D principle only applied to a “lawfully settled minor child or child from a community in which he or she has grown up. . .”. We do not find anything in the judgment indicating that Silber J either endorsed or rejected what had been advanced in the letter from the Secretary of State. It may be that “the L D principle”, with or without qualification by reference to the immigration status of the child in question, has achieved the status of an administrative rule of thumb, but nothing put before us would suggest anything more than that. For present purposes the judgment in O A is neither here nor there.

[34] This ground comes nowhere near demonstrating a legally compelling reason for reducing the refusal of permission with a view to reconsideration by the UT. Ground of appeal (iii)

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[35] This ground makes a specific point arising from the terms of s.55(1)(a) of the Borders Citizenship and Immigration Act 2009 which requires the Secretary of State to make arrangements for ensuring that her functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the UK. It then asserts that the decisions of the FTT and UT were perverse in respectively making and not finding an error in law in a determination that no reasonable tribunal would have reached, as it could not

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be said that N’s welfare would be safeguarded and promoted by removing her to Nigeria. Reference is made to what appears at paras 28 and 45 of the judgment of Wyn Williams J in R (On the application of T S) v Secretary of State for the Home Department. Although not specifically focused in this or any other ground of appeal, Mr Bovey also criticised the FTT for having “chopped up” or “compartmentalised” its decision-making, rather than approaching the proportionality assessment “holistically”. The statement of issues does not articulate matters in quite this way; s.55 of the 2009 Act is not mentioned there nor in statement 19 of the petition to which the statement of issues refers. However, there is a reference to s.55 at statement 16 of the petition, the third issue in the statement of issues relates to whether adequate reasons were given for finding it in the best interests of N to be returned to Nigeria (proposed ground of appeal 1(iii) to the UT), and point (c) in the fourth issue is a contention that the FTT failed to bear in mind that the interests of minor children are a primary consideration (proposed ground of appeal 2(iii) to the UT). Accordingly, while one might have wished a more precise correlation between the terms of the ground of appeal and what had gone before, we were prepared to consider the substance of what Mr Bovey had to say in support of this ground.

[36] We did not understand the relevant law to be controversial. Essentially it is to be found set out in the opinion of Lady Hale in Z H (Tanzania) with which the majority of the UK Supreme Court concurred. In para.17 of her opinion Lady Hale said this: “The starting-point is, of course, that states are entitled to control the entry of aliens into their territory and their residence there. Even if the alien has very strong residence status and a high degree of integration he cannot be equated with a national. Article 8 does not give him an absolute right to remain. However, if expulsion will interfere with the right to respect for family life, it must be necessary in a democratic society and proportionate to the legitimate aim pursued.”

In assessing the legality and proportionality of the state’s action in removing an individual, for the purposes of art.8 the circumstances of all family members, including the individual’s children must be considered as well as those of the individual herself: Beoku-Betts v Secretary of State for the Home Department. The UK has acceded to the United Nations Convention on the Rights of a Child of 1989. Article 3(1) of the Convention provides: “In all actions concerning children, whether undertaken by public or private social welfare, institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

An initial reservation by the UK in relation to immigration was thereafter lifted and Parliament enacted s.55 of the 2009 Act. The effect of s.55 is that any decision made by the Secretary of State about immigration, asylum or removal which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be in “accordance with law” for the purposes of art.8(2) of the ECHR. The effect of recent decisions in the ECtHR, including Uner v Netherlands, is that national authorities are expected to apply art.3(1) of the UN Convention and to treat the best interests of the child as “a primary consideration”. However, a primary consideration is not the same as the primary consideration: Z H (Tanzania) at para.25. Nor is it the determining consideration. The important thing is that the decisionmaker should identify and consider the best interests of any children first. No

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other consideration should be treated as inherently more significant than the best interests of the children but the strength of other considerations may outweigh best interests and therefore permit decisions to be taken which are contrary to those best interests: Z H (Tanzania) at para.26.

[37] Mr Bovey took us through much of the relevant part of what is a long determination by the FTT. He also referred to items of evidence which had been before the FTT relating to N’s medical condition and the expert report instructed on behalf of the petitioner as to facilities for medical care in Nigeria.

It was Mr Bovey’s submission that the FTT had failed to give consideration to the best interests of N at any stage in its determination. According to Mr Bovey, it was apparent that the FTT had failed to carry out the careful examination of all relevant factors which was required when the interests of a child are involved in an art.8 assessment. It accordingly erred in law. We do not agree. The FTT as constituted by Judge Bradshaw addressed the petitioner’s claim under reference to art.8 of the European Convention at paras 315–358 of its determination. It had previously noted, at para.242, the petitioner’s reliance on Z H (Tanzania). Much of the discussion in the determination focuses on the circumstances of the petitioner’s three children, and, in particular, the difficulties associated with N’s disability. At para.322 the immigration judge specifically states that he has taken s.55 of the 2009 Act into account and that he has given consideration to the best interests of the children which will be a primary concern. The Lord Ordinary concluded that the contents of paras 315–358 of the FTT’s determination was indicative that the FTT took into account all factors which, on the evidence before it, were said to impinge on the best interests of the children. We agree. This ground accordingly must be rejected.

[38] Mr Bovey’s criticism of the FTT included what he saw as its failure to carry out a careful consideration of all the relevant factors taken together and to show by its reasoning that every factor which might tell in favour of the petitioner had been taken into account. We return to a matter that we have already touched on. Whatever may be said as to the merits of this intense level of scrutiny of administrative decision-making, it is no longer to the point once what is in issue is whether the second appeals test has been satisfied.

Ground of appeal (iv)

[39] As was submitted on behalf of the respondent, this point was never argued before the Lord Ordinary. It does not feature in the petition nor in the statement of issues. That was no doubt because it was not a point that the petitioner had proposed to take on appeal to the UT.This ground is accordingly entirely irrelevant.

Disposal

[40] The reclaiming motion is refused. We reserve all questions of expenses.

F

For the petitioner and reclaimer: Bovey QC, Winter, instructed by Drummond Miller LLP, Solicitors, Edinburgh, for Livingstone Browne, Solicitors, Glasgow.

For the respondent: McKendrick, instructed by the Office of the Solicitor to the Advocate General, Edinburgh.

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A COURT OF SESSION

7 May 2015

Outer House Lord McEwan JOHN MACKAY

Pursuer B

against SCOTTISH FIRE AND RESCUE SERVICE and another

Defenders

Reparation—Negligence—Breach of statutory duty—Pursuer injured by snow, ice and debris falling from roof of building during severe weather—Defenders inspecting roof and removing some snow prior to accident—Whether duty of care—Whether statutory duty Section 13 of the Fire (Scotland) Act 2005 provides, inter alia: “Power to respond to other eventualities (1) A relevant authority may take any action it considers appropriate— (a) in response to an event or situation that causes or is likely to cause— (i) a person to die, be injured. . .; or (ii) harm to the environment (including. . . the fabric of buildings); or (b) for the purpose of enabling it to take action in response to such an event or situation. . . .”

Section 14 of the 2005 Act provides, inter alia: “Provision of other services.

(1) A relevant authority may provide— (a) the services of any persons employed by it; or (b) any equipment maintained by it, to any person for any purpose that appears to the authority to be appropriate. . . .”

Section 20 of the Local Government in Scotland Act 2003 provides, inter alia: (1), a local authority has power to do anything which it considers is likely to promote and improve the well-being of— (a) its area and persons within that area. . .

(2) The power under subsection (1) above includes power to— ... (c) enter into arrangements. . .with any person. . . .”

Section 1 of the Civil Contingencies Act 2004 provides, inter alia: “(1) . . . ‘emergency’ means— (a) an event or situation which threatens serious damage to human welfare. . . .”

Section 2 of the 2004 Act provides that a local authority: (1). . . shall— ... (d) maintain plans. . .for the purpose of— (i) preventing the emergency, (ii) reducing, controlling or mitigating its effects. . . .”

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The pursuer sued the defenders for injuries sustained when he was walking in a street in Dundee when ice and guttering fell from a roof and struck him during severe weather. The defenders did not own the building from which the debris fell, but had carried out an inspection prior to the accident and had removed certain areas of ice and snow from the roof and facade of the building. The pursuer averred that the defender had a duty to identify the hazard, make an adequate inspection, then remove any ice and snow presenting a risk.

He raised an action in the Court of Session and the defenders pled that the case was irrelevant. Counsel for the defenders argued that the defenders were able to act under the powers conferred on them by statute and it was important to important note that what was involved was a power rather than a duty.

There was no duty for them to go on the roof and it was counter intuitive to make them liable for attempting to help. The case stressed the need for a relationship between the pursuer and the defender.

Counsel for the pursuer moved for a proof before answer against both defenders. He argued that the facts of the case showed an operational activity and there could be no good reason why a duty of care should not be imposed on both defenders.

Held that the defenders were not performing any statutory duty to which it might have been easy to have attached a common law duty and it was important to note that neither defender caused the problem, nor was it, nor could it have been said, that they made it any worse and there was no proximity or assumption of responsibility (paras 38, 39, 40): and action dismissed.

Cases referred to:

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F

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Aitken v Scottish Ambulance Service [2011] CSOH 49; 2011 S.L.T. 822 A J Allan (Blairnyde) Ltd v Strathclyde Fire Board [2014] CSOH 135 Anns v Merton London Borough [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492 Antonucci v Ayrshire Health Board, Court of Session, Lord Reed, unreported Burnett v Grampian Fire & Rescue Service [2007] CSOH 3; (O.H.) 2007 S.C.L.R. 192; 2007 S.L.T. 61 Cameron v Inverness County Council, 1935 S.C. 493; 1935 S.L.T. 281 Caparo Industries plc v Dickman [1990] 2 A.C. 605; [1990] 2 W.L.R. 358; [1990] 1 All E.R. 568; Capital and Counties plc v Hampshire County Council [1997 Q.B. 1004; [1997] 3 W.L.R. 331; [1997] 2 All E.R. 865 Duff v Highlands and Islands Fire Board, 1995 S.L.T. 1362 Duncan v Findlater (1837) 15 S. 1304; (1839) McL. and Rob. 911; (1839) 6 Clark and F. Furnell v Flaherty [2013] EWHC 377 (QB) East Suffolk Rivers Catchment Board v Kent [1941] A.C. 74; [1940] 4 All E.R. 527 Gibson v Orr, (O.H.) 1999 S.C.L.R. 661; 1999 S.C. 420 McConnell v Ayrshire and Arran Health Board, 14 February 2001, unreported Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 W.L.R. 1057; [2004] 2 All E.R. 326 Mersey Docks etc Trustees v Gibbs (1864) HLC 685 Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] A.C. 1732; [2015] 2 W.L.R. 343; [2015] 2 All E.R. 635 Mitchell v Glasgow City Council [2009] UKHL 11; (H.L.) 2009 S.C.L.R. 270; 2009 S.C. (H.L.) 21; 2009 S.L.T. 247; [2008] CSIH 19; (I.H.) 2008 S.C.L.R. 375; 2008 S.C. 351; 2008 S.L.T. 368; (O.H.) 2005 S.C.L.R. 920; 2005 S.L.T. 1100

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O’Rourke v Camden London Borough Council [1998] A.C. 188; [1997] 3 W.L.R. 86; [1997] 3 All E.R. 23 Ryder v Highland Council [2013] CSOH 95; 2013 S.L.T. 847 Rowley v Secretary of State forWork and Pensions [2007] EWCA Civ 598; [2007] 1 W.L.R. 2861 STV Central Ltd v Semple Fraser LLP [2014] CSOH 82 Virtue v Commissioners of Police of Alloai (1873) 1 R. 285 X v Hounslow London Borough Council [2009] EWCA Civ 286; [2010] H.L.R. 4.

A

B

The full circumstances of the case and the arguments of counsel are in the following opinion of the Lord Ordinary which was issued on 7 May 2015.

LORD MCEWAN [1] The pursuer sues the defenders in reparation for injuries sustained in 2010 when he was walking in a street in Dundee. Snow, ice and metal fell from a roof and struck him. At the time the weather was very severe. Let me begin by looking in summary at what is averred on record. The pursuer lives at 210 . . .

Road, Dundee. In art.5, the extreme winter conditions of December 2010 are averred. Minus temperatures allowed ice to build up on the facade of nos.206– 210 with snow and ice also on the roof. Both defenders inspected the properties there to establish the risk of injury and damage posed by the ice and snow. It is then said that on 8 December these defenders after an inspection “carried out removal of areas of ice and snow from the roof and façade areas of 206 to 210. . . .” Page 8 of the print discloses that there is a dispute in fact about precisely where snow and ice were removed, coupled with a duty to inspect and remove or at least report upon any hazardous ice at adjacent properties to 206. It seems to be accepted that neither defender owned any of the properties.

The risk in question is said to be falling ice and debris.

[2] The answers show that then by day snow was melting and freezing again by night. The second defenders did not have the equipment to access and inspect the roofs. On 9 December it is alleged that the pursuer was walking on the pavement in front of 208 when ice and guttering fell on to him. The breach of duty is found at p.7. The duty is to identify the hazard, make an adequate inspection, then remove any ice and snow presenting a risk. Also, and in particular, it is said there was a failure to remove ice from the guttering. I pause to observe that in the argument before me it was said that when the clearance was done on 8 December, the street was cordoned off by the police.

Nowhere is this averred by any party.

[3] I was referred to a number of cases which I list here in approximate date order. [His Lordship listed the cases as set out above and continued:] [4] Mr Dunlop opened by reminding the court that the whole circumstances arose from the very severe winter weather in 2010. The pursuer had been struck by snow and ice falling from a tenement building in Dundee. Having looked at condescendence 5 he turned to the provisions of the relevant statute (The Fire (Scotland) Act 2005) which provided for the setting up and continuation of fire and rescue authorities in local government areas. He confirmed that in the present case his clients could only act under the powers conferred on them by statute. In the context of what happened it was important to note that what was involved was a “power” not a duty. It was not fighting a fire. Because it was a power, they had no duty to act and if they had refused or been unable to act, no liability could have attached to them. If they did act they would only be liable if they made things worse.

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[5] He referred me to East Suffolk Rivers Catchment Board v Kent, the Lord Chancellor at pp.84, 85, 87; Lord Romer at p.102. They had no duty to go to the roof at all and it was counter intuitive to make them liable for attempting to help.

Counsel then took me to Gorringe v Calderdale Metropolitan Borough Council, a case where road markings had been rubbed out. He referred in particular to the speech of Lord Hoffmann in paras 17–32. Next was Furnell v Flaherty, a single judge decision (Turner J). It concerned E. coli at a pet farm. The case stressed the need for a relationship; and various passages were highlighted between paras 37–65. O’Rourke v Camden London Borough Council was referred to lightly, then Antonucci v Ayrshire Health Board, a decision of Lord Reed in the Outer House approving at para.168 of East Suffolk. Counsel then referred to at great length Capital and Counties plc v Hampshire County Council, a decision of the Court of Appeal concerning four different cases where fire damaged property. These were cases involving a fire-fighting duty. There was a danger in accepting a limitless duty. Passages were read between pp.1030–1038.

[6] Mr Dunlop then distinguished two cases which he accepted did not favour his argument about East Suffolk. These were Burnett v Grampian Fire & Rescue Service and A J Allan (Blairnyle) Ltd v Strathclyde Fire Board both Outer House cases.

[7] Four more cases were looked at which I note viz, Mitchell v Glasgow City Council both in the Inner House and in the Supreme Court. I have some familiarity with this case as I was the trial judge at what was originally a murder indictment. I note 12 years on with some interest Lord Hope’s remarks on the ultimate disposal of the case on appeal (para.1). Proximity was an issue in that case. There were finally three cases on assumption of responsibility viz, Rowley v Secretary of Statefor Work and Pensions; X v Hounslow London Borough Council and finally STV Central Ltd v Semple Fraser again an Outer House decision. In his reply Mr Dunlop accepted what was contained in Mersey Docks etc Trustees v Gibbs pointing out that the case was referred to with approval in East Suffolk and Capital and Counties for example. In this area the laws of Scotland and England ought to be the same. That was said in Virtue v Commissioners of Police of Alloa and repeated in various places in Mitchell. In Scots law there could be a difference between acts and omissions. It could depend on control, and Gibson was a good example of control, whereas the facts of this case showed no control and it had to be emphasised that there could be no duty to clear away all the snow. These defenders did not make it worse and the pursuer was injured a day later when they were not there. Mitchell made it clear that a critical issue was the scope of the duty. Here there was no proximity or relationship between the parties.

[8] He concluded by looking again at Michael which he described as a narrower case and yet it had been “struck out”. From it he took a number of salient points. Capital and Counties had been approved and East Suffolk was not criticised (as it had been in Anns v Merton London Borough). None of the Outer House cases had been expressly approved. There was insufficient proximity and no assumption of responsibility. The facts of the present case showed even less proximity.

[9] Mr Pugh for the second defenders adopted the argument for the first defenders and made the following other points. These defenders did not own the building and had no control over it. Any work done was on the day before any accident. His clients were not the landlords of the pursuer as were the defenders in Mitchell. He referred me to the Civil Contingencies Act 2004, ss.1 and 2; and the Local Government in Scotland Act 2003, s.20. While these defenders had wide powers they had no duty to clear the roof.

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[10] Counsel for the pursuer moved me to allow a proof before answer against both defenders. The issue was not what the law was in the English cases. This was simply common law negligence. Foreseeability was conceded and the proximity was the people on the “cordoned off” street when the defenders were there. The argument that statute gave immunity had been tried and rejected in several Scottish Outer House cases. He referred me to Aitken, Allan, and Gibson v Orr. [11] When the case resumed Mr Allardice developed a slightly different argument with new authorities. Referring back to the law in 1830 he said that a case in that year had held that if there were statutory powers there could be no common law claim in fault. However, with the Mersey Docks case the law changed and common law claims could be admitted against a statutory body. The case of Virtue confirmed that Mersey Docks was good law in Scotland. Counsel referred extensively to passages between pp.291–296. In the present case the defenders were seeking to impose the old rule. These cases, he said, were binding on me as was Cameron v Inverness County Council (he referred to pp.496–498). Ryder v Highland Council was another helpful example (pp.859 onwards).

[12] He then turned to Gibson on the question of acts or omissions. There the damage to the bridge had not been done by the police. They had attended then left. It was a simple omission. This could be compared with the fire brigade cases where they did not search for other sources of fire. The test was one of common sense. If what happened in Gibson was negligence then the facts of the present case were a fortiori. Counsel read extensively from pp.429– 434. Gibson was approved in Mitchell he said. Counsel then looked at Burnett and how the Lord Ordinary had distinguished the English cases especially Capital and Counties. The next Outer House case of Allan had followed Burnett.

As far as East Suffolk was concerned the important point was that the damage had not been caused by the Board nor had they created any additional damage.

For present purposes, much of what was said was obiter. It established no principle which could be applied in Scots law. The English cases referred to by the defenders were all different on their facts. There was no place in Scots law for assumed responsibility. Mitchell was a case where there was not enough proximity and there was no assumption of any responsibility and the recent case of Michael was similar to Mitchell. Counsel looked in some detail at Michael and maintained that Burnett and Duff v Highlands and Islands Fire Board had not been disapproved.

[13] The facts of this case, he concluded, showed an operational activity and there could be no good reason why a duty of care should not be imposed on both defenders.

[14] The Fire (Scotland) Act 2005 provides as follows, inter alia: [His Lordship quoted the sections as set out above and continued:] Section 9 provides for the local authority making the necessary provision for its fire services and in particular includes: “(2)(a) . . .the provision of the personal services and equipment necessary to meet efficiently all normal requirements;”. The Local Government in Scotland Act, 2003 provides, inter alia: [His Lordship quoted the section as set out above and continued:] The Civil Contingencies Act 2004 provides, inter alia, ss.1, 2: [His Lordship quoted the sections as set out above and continued:] [15] I want now to look at some of the cases beginning with those in England. The cornerstone of the defenders’ argument is that East Suffolk Rivers Catchment Board v Kent is good law in Scotland and should be followed.

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[16] The facts are well known. A very high tide broke the sea wall of the River Deben and the respondents’ dairy farmland was flooded. The Board under their statutory powers undertook a repair. It was badly done and flooding continued for 178 days causing damage to the farmland. Done properly, it could have been repaired in 14 days. At the trial and on appeal the Board were held liable. In the House of Lords it was held that when the statutory authority embarks on the execution of the power to do works, the only duty owed to any member of the public is not to add to the damage they would have suffered if the authority had done nothing. That is particularly clear from the speech of Lord Romer at p.102. There was thus no liability.

[17] Looking next at Capital and Counties plc, a decision of the Court of Appeal, it is to be noted that the decision in East Suffolk was binding. These were four cases, heard together, where a fire authority had failed to extinguish a fire. In the Basingstoke cases, an official referee found liability established when a building was destroyed in two hours. On arrival, the fire officer had turned off a sophisticated sprinkler system too soon, only to turn it on again too late. In the London case a 20-minute fire was on land adjacent to premises.

Firemen attended but failed to check the adjacent land. The Yorkshire case involved a Mormon chapel. In spite of 15 fire engines attending it burned down. The water supply was inadequate. Seven hydrants were in the area; four did not work and the others could not be found due to lack of signage and undergrowth. Water was eventually used from a dam half a mile away. The judge found no liability for breach of statutory duty. East Suffolk was criticised in the argument (p.1017) but was quoted (minus the dissent) with approval at p.1032 and, reasoning by analogy, followed in the first two cases where the fault of the fire officer seems obvious.

[18] It has to be said that each of these cases is wholly different from the case before me. They turned on their facts and on the principles in Caparo Industries v Dickman of foreseeability, proximity and what was fair, just and reasonable.

(See pp.1041 onwards to the end for the actual results). It is interesting to note the analysis from p.1039 onwards on many topics, e.g., the risk to morale of finding liability, satellite inquiries into procedures, floodgates arguments, public policy and insurance (p.1044). Many professions and occupations were looked at especially those charged with their duties by Parliament.

[19] In Gorringe the claimant, on a sharp crest on a country road in Yorkshire, seeing a bus approaching braked and skidded into the bus. Some years before there had been a “slow” sign on the road but that had disappeared due to repairs.

She sued the highway authority at common law and for breach of statutory duty.

The trial judge found in her favour but a majority of the Court of Appeal allowed the defendants’ appeal. The Lords refused the plaintiff’s appeal.

[20] I move now to consider some of the Scottish cases, beginning with Duff. This was only referred to in passing. A chimney fire was attended to by the fire brigade but restarted after they had left causing the destruction of the house. Two points arise. In the first place, the case is different from the present in that it involved fire fighting which was a duty imposed on the defenders.

The second point to notice is that the Lord Ordinary expressed disapproval of East Suffolk. He agreed with the view of it expressed by Lord Salmon in Anns.

In Burnett a fire broke out in a second-floor flat in Aberdeen. The defenders attended and put out the fire. While there, they forced entry to the pursuer’s third-floor flat to check. They failed to make a thorough check and the fire reignited causing damage. It was, inter alia, argued that the principles of English law should apply and that there was no proximity. The Lord Ordinary in allowing a proof before answer held that in Scots law there was no distinction

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between acts and omissions; that proximity could exist and that there was a duty of care at common law. Once again the factual basis of the case is different from the present. The Lord Ordinary agreed with the view in Duff about East Suffolk (paras 48 onwards). He also did not appear to follow the reasoning in Capital and Counties. Lord Macphail’s analysis of the many cases in Scotland and England is most impressive. Gibson v Orr was a case where the common law duties of the police were in issue. In December mid-afternoon a bridge carrying a public road collapsed in heavy rain. The police were told and within minutes the north side was coned off. The police remained for an hour with an illuminated vehicle. They then left without any check to see if similar safety steps had been taken on the south side. None had, and minutes later a car came from the south and went into the river with fatal results.

[21] Foreseeability was not an issue, and in finding the case relevant the Lord Ordinary decided that the facts showed sufficient proximity of relationship. The Caparo tests were also satisfied. There was a very careful and detailed analysis of many authorities particularly in relation to policy matters and the police.

[22] Cameron v Inverness County Council was canvassed at some length as was Ryder v Highland Council. Both cases concerned roads and authorities having certain duties towards their maintenance. In Cameron the roads to an isolated sheep farm were cut off for over four days resulting in the death of livestock. The action was one for breach of statutory duty said to be an absolute duty. The case was treated as a matter of relevancy and was dismissed. Ryder on the other hand was decided after proof and again the action failed. The case was based on negligence when there was a fatal accident in winter on an ungritted road. It was not a matter of relevancy and the Lord Ordinary accepted that whatever statutory duty there was, a common law case was not excluded. However, on the facts it failed.

[23] I want to look now at Mitchell. The facts are straightforward. Mitchell was a tenant of a local authority house. A near neighbour was a man Drummond. Drummond was a troublesome tenant anyway but also had a hatred of Mitchell whom he had previously threatened to kill. Drummond had had warning letters from his landlords, the defenders. In July 2001 they held a meeting with him to tell him he might have to be evicted and the meeting became intemperate. Following that meeting he killed Mitchell. The pursuer’s case was narrowly based and concerned a failure to warn Mitchell that they were having a meeting and that, at it, Drummond had been abusive and illtempered. The case was dismissed as a matter of relevancy. There was no duty to warn of the risk of a criminal act by a third party and the defenders had not assumed responsibility for their tenant’s safety.

[24] A number of matters should be noted from this case. In the first place it is an analysis of the obvious to say that the facts materially differ from the present. Also the defenders were under a number of statutory duties and powers (see Lord Rodger, paras 50 onwards to 63). They had no resources to protect tenants (Lord Rodger, paras 69 and 70). None of the Scottish fire brigade cases were cited in the House of Lords and Gibson was only referred to for the Caparo formula (Lord Hope, para.25). It was stated that the test for liability in this area would be the same in Scotland and England given the way that the law had developed (Lord Brown, para.80). The Court was agreed that foreseeability alone was not enough (see e.g., para.21).

[25] What the speeches do show is that there are certain categories where the law has recognised common law duties. Lord Hope gave examples at paras. 22 and 23 viz, where the defender creates the source of danger; where

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the person causing the damage is under the supervision or control of the defender; where there is an assumption of responsibility to the pursuer. (All of these of course differ from the normal master and servant, and road traffic cases (para.16).) Lord Scott (para.40) writes to a similar effect. I should make the following other comments on Mitchell. In the Outer House (2005) only Gibson was cited. In his very carefully reasoned opinion Lord Bracadale dismissed the action. In the Inner House (2008) Lord Reed in his dissent agreed with the Outer House judge. His opinion is very detailed and has fully analysed all the cases both on their facts and principles arising. He also emphasised the importance of retaining the power to dismiss without proof (“strike out” in England) (pointing historically to the famous cases where this has happened in the development of the law). In the Inner House Gibson was only referred to in argument. By contrast Burnett only appears in para.87 of Lord Reed’s powerful dissent and not with any approval.

[26] A J Allan directly concerned the duties of a fire brigade performing their duty to fight a fire at a farm. The fire was extinguished but a visual check of a neighbouring building failed to find smouldering timbers. The fire later reignited and destroyed the farmhouse. What the defenders were doing was a routine operation to contain and extinguish a fire. It was held to be an assumption of responsibility to exercise reasonable care to perform a statutory duty. Clearly there was also proximity between the parties. The Lord Ordinary found the case to be indistinguishable from Burnett and followed the earlier case. He found no difficulty in applying also the Caparo tests when allowing proof before answer.

[27] I want to say a word about what I call the historical argument which came halfway through the debate. I do not think it was seriously challenged but out of respect to counsel I shall narrate what I think to be its effect.

[28] Duncan v Findlater was not cited to me but can be found in [(1837)] and in the House of Lords in (1839) McL. and Rob. and, importantly, in (1839) 6 Clark and F. What happened was this. A coal merchant driving his gig at night in Perth ran into an unlit pile of stones. The result was a fatality and injuries to the merchant. At a trial the Lord President presided and a jury awarded damages. The First Division adhered to the verdict but the matter was reversed in the House of Lords. In Scotland the basis of the case was at common law but the Lords held that there could be no liability on Trustees gratuitously administering funds appropriated by statute for the upkeep of roads; and thus the matter stood until 1864 when the two appeals in the Mersey Docks cases were heard by the House. The cases concerned damage to a ship and its cargo in Liverpool. The two cases by the cargo owner and ship owner proceeded via a favourable jury verdict to the Exchequer Chamber and then to the House and before giving judgment the Lords took the opinion of the English judges given by Blackburn J. The rule in Duncan was reversed and an action was allowed against the statutory trustees. That law was to apply to Scotland and England. Then in 1873 came Virtue a case where there were three powerful and, I may say, patriotic dissents.

[29] The facts concerned a road. The pursuer in his horse and cart hit an unlit trestle left in the road, during the hours of darkness. He sustained injuries.

A claim was made which would have to be paid from the trust funds of the Commissioners of Police of Alloa. In a very good and clear opinion the sheriff substitute allowed a proof before answer. The sheriff adhered and a majority of the Second Division with three consulted judges affirmed both sheriffs.

There was a serious dispute with the dissenting three judges about whether the Mersey Docks case should be followed or await a decision in what was truly

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a Scottish case. It seemed to be the case that the court thought (probably correctly) that in Mersey the judges and the House had been misled by the law report which they consulted in Duncan (6 Clark & F) and, in purporting to decide the case on the exception to the judge’s charge, in fact decided it as a matter of relevancy (see e.g., pp.292 and 295).

[30] Be all that as it may, what has happened since is that it seems to me the law in this area has taken a common course down to the present time and should be the same especially now as European jurisprudence often has to be considered. The Supreme Court remains for both countries. Sometimes, inevitably, the expression of the principles differs in each country, but the substance is the same.

[31] The last case I want to look at is Michael v Chief Constable of South Wales Police. The facts were that a woman, Joanna Michael, phoned the police to report threats by her former partner to kill her. For a variety of reasons the police response was delayed. She called again, was heard to scream and by the time the police came they found her murdered. The claim in negligence was struck out and an appeal to the Supreme Court failed. (There were two dissents.) The majority held that the duty of the police was to the public at large and there was no duty to the family for harm caused by a third party for whom the state was not responsible, and that such a duty could not be rationally confirmed. Here there was no close or special relationship, nor any assumption of responsibility.

[32] At the outset I should observe that the majority cast no doubt on the soundness of East Suffolk (para.75) or of Capital and Counties (paras 71 onwards). On the other hand Anns is clearly not followed (paras 38 and 107).

Anns has been departed from. Accordingly it seems to me to be correct that Lord Salmon’s severe criticism of East Suffolk (p.764 of Anns onwards) cannot now be followed in England.

[33] The Scottish cases of Duff and Burnett were referred to at paras. 76 onwards. They have not attracted the approval of the Supreme Court and seem to sit uneasily with Mitchell. In Mitchell Lord Hope said that negligence has developed on common lines in Scotland and England. In the minority I do not read Lord Kerr’s opinion at paras 164 and 179 as being in any way critical of Capital and Counties.

[34] At paras 113–114 Lord Toulson said this, inter alia: “the provision of. . .services. . .aimed at protecting the general public from physical. . .harm caused by. . .(natural disasters)” is so extensive that to compile a comprehensive list would be virtually impossible. He went on: “It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the. . .burden.”

[35] From the many cases cited to me it is not easy to reason by analogy when the facts differ. The statutory duties explained in the many cases differ and in the present case there is no statutory duty (my emphasis) on the first or second defenders. The three Statutes quoted to me, referred to earlier, do not in my opinion lead to any contrary conclusion. Of course it can also be said that the statutory powers given to them do not expressly exclude claims against them however framed. There is no formula of “no action shall lie. . .” to be found. What I have called the historical argument (Virtue) makes it clear that a common law remedy can exist alongside a statutory duty. (Neither of the defenders disputed that to be the law of Scotland.) The difficulty (though not the answer) to reconciling these is well expressed in the speech of Lord Steyn in Gorringe at p.1059.

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[36] In the case before me there is no case precisely in point and the nineteenth century cases have to be seen in the context of roads and other infrastructure proceeding apace in the UK at the time of the industrial revolution. I do not think that the first defenders here are wanting to go back to the days of Duncan v Findlater but rather to argue against a broad extension of delictual liability against a fire brigade who at the time were not fighting fire. In my opinion in this area extensions ought to be incremental on Caparo tests otherwise there is a risk of the “indeterminate� liability spoken about by Lord Bridge in that case quoting (p.621) Cardozo CJ in the leading American case.

No universal formula has been found to guide this extension (Michael para.103).

[37] There is another general dimension to this about which I want to comment. I do not think that the principle stated in East Suffolk is wrong. It has the approval of the recent case of Michael in the Supreme Court and I think it would be unfortunate if Scots law in this area of powers and duties were to develop in a different way. That is not what Mitchell decided, see for example paras 25, 39, 78 and 80, and if one goes back to Virtue cited by the pursuer, common development is something to be encouraged. Also Michael is a clear brake on the creeping extension of liability on public bodies unless clearly justified on the facts of the case and binding authorities. I have the greatest respect for all the Outer House cases cited to me but in the end of the day none is sufficiently in point to persuade me to allow any proof before answer.

[38] In my view the present case admits of only one answer on a matter of relevancy even when foreseeability is conceded. In the first place the first defenders were not performing any statutory duty to which it might have been easy to attach a common law duty. They were acting under statutory powers only. It is perfectly correct to observe that these powers give no exemption from liability. However, the operation concerned was not fire fighting nor was it routine. It was undertaken at a time of severe weather when the operation of nature and temperature must have affected matters. These factors alone distinguish it from the cases cited most of which are wholly different on their facts and involve different types of public authorities.

[39] It is also important to note that neither defender caused the problem nor is it or could it be said they made it worse. Had any of these things been the case it would be easy to see where duties could arise.

[40] I am also of the view that there is no proximity here or assumption of responsibility. There was a day of delay before anything happened and at a time when neither defender was present. In that situation to find a duty of care would open the floodgates to almost unlimited liability to an indeterminate class of people. Any member of the public might have been in the street at that time.

[41] I have already said that in a case like this any extension of duties of care should be incremental and clearly justified on the decided cases. There is no one single formula to arrive at the Caparo tests. What I have said applies to both defenders, and I emphasise that the second defenders were not the owners of the building. For these reasons I will dismiss the action.

For the pursuer: Allardice, instructed by Thompsons, Solicitors, Edinburgh.

For the first defenders: Dunlop QC, instructed by Simpson & Marwick, Solicitors, Edinburgh For the second defenders: Pugh, instructed by Reid Cooper, Solicitors, Edinburgh.

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A COURT OF SESSION

12 May 2015

Inner House (Extra Division) Lady Paton, Lord Brodie and Lady Clark of Calton STV CENTRAL LTD

Pursuer

B

against SEMPLE FRASER LLP (in liquidation) CBRE LTD

Defender (Reclaimer) Third Party (Respondent)

Contract—Breach of contract—Error in rent review clause—Defender seeking advice from third party about form of clause—Defender admitting liability and claiming relief from third party—Relevancy— Whether third party owed contractual duty

C

Reparation—Negligence—Error in rent review clause—Defender seeking advice from third party about form of clause—Defender admitting liability and claiming relief from third party—Relevancy— Whether third party owed duty In a lease a landlord agreed to fit out new premises to a higher specification than was normal for that type of building and the extra cost was reflected in the rent, which was split into two elements, namely the initial rent and enhanced rent. A formula to calculate the enhanced rent over the 20-year period of the lease was set out in a clause in the lease. However, the clause contained an error which would have meant that the tenant would have had to pay a very substantial increase in rent, in excess of what had been agreed. The tenant negotiated a new clause with the landlord and then raised an action for professional negligence against the defender seeking compensation for the losses it had incurred on the basis of breach of contract and delict.

The defender admitted liability and settled the action by means of a tender.

It then sought to recover a contribution from the third party whom it had requested to give advice in relation to the wording and working of the rent clause. The defender averred that there was correspondence between it and the third party during which the third party indicated that they were “happy in principle” with the wording of the clause. The third party pled that the action against it was irrelevant and after a debate the Lord Ordinary decided that the action should be dismissed and the defender reclaimed.

Counsel for the defender argued that if the defender’s averments disclosed a relevant claim by STV against the third party then there was a relevant claim by the defender against the third party. There was a sufficient basis for a contractual duty owed by the third party to STV in the defender’s averments relating to the practice of a professional team of advisers and a series of emails.

Evidence was required to explain fully these matters and all the surrounding circumstances. It was the third party’s duty to consider the terms of the provision and to advise thereon when asked. Any lack of specific instructions was not significant. The third party had contributed not only to the negotiation of the heads of terms but also to the finalising of the lease. There was implicit reliance by the defender on the third party’s response. There were sufficient averments of breach of duty and a causal link.

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In relation to delict the emails including the “happy in principle” email could be seen as clear advice and amounted to an assumption of responsibility for advice. The case for the defender against the third party in delict could not be said to be bound to fail.

Counsel for the third party argued that the pleadings were inadequate to instruct the creation or operation of a contractual obligation owed by the third party to STV. The defender had given no indication whether it had relied on the email communications with the third party and communications among team members did not necessarily give rise to binding legal obligations.

In relation to delict, counsel for the third party argued that for an “assumption of responsibility” case it was necessary for the defender to aver that STV actually relied upon the third party in respect of the provision but that was not clear from the pleadings.

Held (1) (per Lady Paton and Lord Brodie) that when the averments of the defender were read together with the averments concerning the exchange of emails between the defender and the third party it was difficult not to conclude that the third party’s contractual duties owed to STV did not extend to giving expert advice about rent review provisions to another member of the professional team and it could not be concluded that there was nothing to suggest that STV looked beyond the defender for advice on the terms of the lease including the rent clause and on the defender’s pleadings the defender’s contention that the third party owed STV a duty of care ex contractu in relation to the rent cause was statable (paras 18, 20, 33); (2) (per Lady Paton and Lord Brodie) that the defender’s averments were sufficient in that they supported the case that the third party, if sued by STV, would be found liable to STV ex delicto and accordingly that the defender had pled a relevant case in delict entitling it to contribution in terms of s.3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (paras 27, 40); (3) (per Lady Clark of Calton dissenting) that the case as pled by the defender was not based on any averments of any express agreed contractual terms between STV and the third party, but the case was based on implied terms and the Lord Ordinary was well entitled to draw the conclusions which he did and to reject the submission by the defender (paras 48, 49); and (4) (per Lady Clark of Calton dissenting) that the case pled by the defender was bound to fail because there were no averments to found a causal nexus between the request by the defender and the response, or lack of it, by the third party and the drafting and signing off of the defective rent review clause by the defender (para.50); and reclaiming motion allowed.

Cases referred to:

F

Bank of Credit and Commerce International (Overseas) Ltd (In Liquidation) v Price Waterhouse (No.2) [1998] P.N.L.R. 564 Farstad Supply AS v Enveroco Ltd [2010] UKSC 18; (S.C.) 2010 S.C.L.R. 379; 2010 S.C. (U.K.S.C.) 87; 2010 S.L.T. 994 Henderson v Merrett Syndicates [1995] 2 A.C. 145; [1994] 3 W.L.R. 761; [1994] 3 All E.R. 506 Jamieson v Jamieson, 1952 S.C. (H.L.) 44; 1952 S.L.T. 257 Spring v Guardian Assurance plc [1995] 2 A.C. 296; [1994] 3 W.L.R. 354; [1994] 3 All E.R. 129.

On 12 May 2015 the following opinions were issued. The full circumstances of the case and the arguments of counsel are to be found in the opinion of Lady Paton.

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STV Central Ltd v Semple Fraser LLP (IH)

261

LADY PATON

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Introduction

[1] The issue in this reclaiming motion is whether the defender has pled sufficient relevant and specific averments against the third party such that a proof before answer should be allowed. After a debate, the Lord Ordinary (Lord Woolman) decided that the defender had failed to do so, and dismissed the action so far as directed against the third party. The defender now reclaims.

B

Background

[2] The events leading to the present litigation are summarised by the Lord Ordinary as follows: “[1] This case arises out of an error in a rent review clause in a lease. The defender has admitted liability for the error and paid a substantial sum to settle the pursuer’s claim. It now seeks a contribution from the third party.

The issue came before me for discussion on the procedure roll. In seeking dismissal of the claim, the third party submitted that the defender had not made out a relevant claim under s.3(2) of the [Law Reform (Miscellaneous Provisions) (Scotland) Act 1940]. The defender maintained the contrary position. It invited me to allow a proof before answer.

[2] Between about 2003 and 2006 a consortium of companies carried out a commercial development at Pacific Quay, Glasgow. STV Central Ltd (‘STV’) decided to relocate there from its former premises at Cowcaddens.

It instructed Semple Fraser, solicitors, and CBRE Ltd (formerly CB Richard Ellis Ltd), surveyors, to act on its behalf in securing a lease of new premises at Pacific Quay. Negotiations about the heads of terms commenced in 2003. The lease for the new premises was executed in May 2006.

[3] The landlord agreed to STV’s request to fit out the new premises to a higher specification than was normal for that type of building. The extra cost was reflected in the rent, which was split into two elements: (a) the initial rent, and (b) the enhanced rent. Clause 1.1.13 set out a formula to calculate the enhanced rent over the 20-year period of the lease: ‘subject to review and compounded (upwards only) at each successive anniversary (“the relevant date”) of the date of entry, according to the formula R = I x A/B where R is the enhanced rent payable from and after the relevant date, I is the enhanced rent payable prior to the relevant date, A is the RPI for the date two months before the relevant date. . .and B is the RPI for the date two months before the date of entry.’

[4] The effect of the RPI formula was to increase the sum payable in an exponential manner. If, for example, the retail prices index increased at the rate of 3 per cent each year, STV would have been liable to pay an annual rent of £100 million in 2025. It only became aware of the true effect of the RPI formula in November 2009. On the advice of senior counsel, it decided against raising an action for rectification. Instead it entered into negotiations with the landlord to attempt to resolve maters. Following mediation in March 2012, the landlord agreed to insert a new rent formula into the lease. In return, STV became liable to pay various sums to the landlord.

[5] STV raised the present action for professional negligence against the defender shortly before Christmas 2012. It sought compensation for the losses it had incurred on the basis of breach of contract and delict. In February 2013, the defender admitted liability. Subsequently it lodged a substantial tender, which STV accepted in July 2013. Accordingly the litigation is now between the defender and CBRE.”

C

D

E

F

G

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Rent review clauses

[3] The first rent review clause, cl.1.1.13, which deals with the enhancement of rent as a result of the higher specification of the finish of the premises, is quoted in para.3 of the Lord Ordinary’s opinion (above). “RPI” is defined in cl.1.1.41.

[4] The standard rent review clause (unconnected with the higher specification of the finish of the premises) is cl.3, which extends to several pages. It begins as follows: “3 RENT REVIEW PROVISIONS 3.1 Review date “The term ‘review date’ for the purposes of this clause shall mean (subject to the provisions of cl.3.8 hereof) 29 March in the years 2011, 2016 and 2021 and the expression ‘the relevant review date’ shall be construed accordingly.”

What follows are detailed provisions governing the standard rent and rent review operating independently of the provisions for the enhanced rent.

C

D

E

F

G

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The defender’s request to the third party for advice and assistance in relation to the RPI wording

[5] The defender requested the third party’s advice and assistance in relation to the wording and working of the RPI provision in cl.1.1.13. Details of the exchange between the defender and the third party are contained in emails referred to and quoted in ans.5 of the defences. The main parts of that exchange were as follows: “9 March 2004: 10.03. Simon Etchells (defender) asked Philip Reid (third party): ‘Can you comment on the RPI wording and the CAT A enhanced rent review point I make?’

11.38. Simon Etchells (defender) sent emails to both STV and Philip Reid (third party) saying ‘Enhanced rent—I think that the RPI provisions work but I ask that CBRE (third party) look at them.’

“25 March 2004: “Keith Hutchison (third party) provided comments on the rent review provisions, focusing on cl.3. He did not address the wording of the RPI provision.

“30 March 2004: “Philip Reid (third party) sent a copy of Keith Hutchison’s comments by email to Joanna Campbell-Smith (defender) adding: ‘I am still waiting for one of my colleagues to let me know the new RPI wording, although most seem happy to use RPI.’ “5 April 2004: “Joanna Campbell-Smith (defender) inquired of Virginia Beckett (third party): ‘. . .have your rent review colleagues yet signed off on the RPI wording in the lease?’

“7 April 2004: “Virginia Beckett (third party) replied: ‘RPI—we are happy in principle with the RPI wording.’

“7 April 2004: “Joanna Campbell-Smith (defender) sent an email to Virginia Beckett (third party) stating: ‘On RPI, the real issue here is a commercial one, as to exactly how the RPI increase should work and be applied. There are various possible scenarios: • We have said that the RPI increase is only to be applied five-yearly; PQ are resisting this;

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•

If it is to be applied annually, should the increase be calculated each year by reference to the base rent, or • By reference to the rent as increased in the previous year?

“My reading of (Shepherd & Wedderburn’s) drafting is that they are looking for the third option, but could you let me have your/your rent review colleague’s views on what we should be recommending to [STV]?”

A

It is thereafter averred in ans.5 that “[o]ther than some further discussion on 5 May 2004 regarding whether the indexed increase would be applied annually or five yearly, CBRE provided no further advice to the defender on the working of the RPI provision within the enhanced rent definition”. Accordingly there appears, on the pleadings, to have been no direct response to that final question from the defender.

B

The defender’s pleadings

[6] In its defences to the action against it by STV (an action which has been settled, as set out in para.5 of the Lord Ordinary’s opinion), the defender offers to prove, inter alia, that: • “In about January 2003 the defender was instructed by (STV) in connection with securing a lease for premises at Pacific Quay. The third party was instructed by the pursuer to act as their surveyors in the same project. It is implicit when a professional team of advisers is instructed on such a development that they will cooperate with and respond to queries from other professional advisers within the team. In particular where chartered surveyors employ a specialist in rent reviews it is expected that legal advisers charged with drafting rent review provisions will seek assistance from such specialists. The defender and third party were instructed by (STV) to negotiate and finalise a lease with the Consortium. . . .” (ans.3).

• The defender did in fact seek the third party’s advice and assistance on the wording of the RPI clause, all as set out in the e-mail exchange noted in para.5 above (ans.5).

• The defender gave express intimation to STV that it (the defender) was seeking the third party’s advice and assistance about the wording of the RPI provision: see the email of 11.38 of 9 March 2004, quoted in para.5 above (ans.5).

• The third party did not, on the defender’s averments, reject the request for advice and assistance, by, for example, sending both STV and the defender an email pointing out that the wording and working of the rent review and the RPI provision were matters for lawyers. On the contrary, on the averments, by email dated 25 March 2004, Philip Reid (third party) provided specific advice from the third party’s rent review specialist Keith Hutchison in relation to cl.3. In that email, Mr Reid added that he was “still waiting for one of [his] colleagues to let [him] know the new RPI wording, although most seem happy to use RPI”, thereby implicitly accepting that it was appropriate for the third party to advise and assist the defender and (indirectly) the client STV in relation to the working and wording of the RPI provision (ans.5).

• The last word from the third party to the defender in relation to the working and wording of the RPI provision was, on the averments, that the third party was “happy in principle with the RPI wording” (ans.5).

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• Thereafter the wording of the RPI provision in cl.1.1.13 remained unaltered, and was subsequently found to “contain a drafting error concerning the indexation of rent” (STV’s averment, admitted by the defender in ans.15).

• In ans.15, the defender in fact denies STV’s further averments that: “Had [the defender] advised [STV] that the formula in Clause 1.1.13 provided for the Enhanced Rent (assuming annual inflation) to increase in an exponential manner in excess of inflation. . .[STV] would not have instructed the defender to conclude the 2004 Missives with cl.1.1.13 in those terms. Had [the defender] advised [STV] of the true meaning of cl.1.1.13 prior to [STV] executing the lease, [STV] would have instructed the defender to remedy the wording”. However I take the view that this denial represents a loose end in the pleading of a tripartite case, part of which has settled, and that the defender is not in a position to deny STV’s averments on those matters.

• The defender further avers in ans.15:“Explained and averred that esto [STV] suffered loss and damage as a consequence of breach of contract or fault on the part of this defender, any such loss was also caused or materially contributed to by breach of duty on the part of CBRE (the third party).

CBRE were chartered surveyors and property agents with extensive experience in rent review matters. As [STV] was aware, CBRE had been asked by the defender to consider and comment on the RPI provision within the Enhanced Rent definition. CBRE asked their rent review specialists to consider the draft lease. They raised no concerns about the operation of the indexation provision in the definition. CBRE owed contractual and delictual duties to [STV] as professional advisers. They had a duty to exercise the standard of care reasonably to be expected of chartered surveyors and commercial property agents of ordinary competence. It was their duty to consider the terms of the Enhanced Rent definition and to advise whether the indexation provision worked satisfactorily throughout the 20-year term of the lease. It was their duty to advise if the indexation provision resulted in grossly excessive rental increases in later years. CBRE failed to do so and by said failure caused or materially contributed to [STV’s] loss and damage. . . .”

Submissions for the defender and reclaimer

[7] If the defender’s averments disclosed a relevant claim by STV against the third party (which STV could have pursued if it chose) then there was a relevant claim by the defender against the third party (s.3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940; Farstad Supply AS v Enviroco Ltd).

Contract

F

G

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[8] Contrary to the Lord Ordinary’s opinion, there was a sufficient basis for a contractual duty owed by the third party to STV in the defender’s averments relating to: (i) the practice of a professional team of advisers; and (ii) the emails. There was no written contract (as none had been recovered by a specification of documents), and evidence was required fully to explain both (i) and (ii) and all the surrounding circumstances. It was not averred that the third party owed STV a duty to revise the relevant clause: rather that it was averred that it was the third party’s duty, when asked, to consider the terms of the RPI provision and to advise thereon. The team arrangement envisaged discussion amongst members, and then one member reporting to the client.

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Accordingly the lack of specific instructions from, or advice to, STV, was not significant. The defender had sought advice from the third party who had a particular expertise and at least one employee who was a rent review specialist.

One possible construction of the third party’s emails (including the “happy in principle” email) was that no problem had been identified, and that the RPI wording gave effect to the heads of terms as negotiated. Thus the third party had contributed not only to the negotiation of the heads of terms, but also to the finalising of the lease. Further, on the averments, there was implicit reliance by the defender on the third party’s response, as the drafting of cl.1.1.13 remained unaltered and (it transpired) erroneous. If the third party had flagged up a problem, the defender would have revised the clause. Thus there were averments of a breach of duty, and a causal link. The defender could not be said to be bound to fail so far as the contractual case was concerned (Jamieson v Jamieson).

A

B

Delict

[9] It was not accepted that there was no clear-cut advice from the third party about the RPI provision (contrary to para.15 of the Lord Ordinary’s opinion).

The emails, including the “happy in principle” email, could be seen as clear advice and therefore amounting to an assumption of responsibility for advice.

The defender’s averments satisfied sub-heads (a)–(e) of Sir Brian Neill’s judgment in Bank of Credit and Commerce International (Overseas) Ltd (In Liquidation) [BCCI] v Price Waterhouse (No.2). STV knew that the defender had asked the third party to look at the RPI wording. The third party knew that information about the RPI wording might be routed through the defender to STV, and that STV was likely to rely on that information. In those circumstances, the third party owed STV a duty of care ex delicto to respond competently to queries from team members in the third party’s field of expertise (thus not as wide a duty as stated by the Lord Ordinary in para.18 of his judgment). The defender was offering to prove that STV (before signing the lease) relied on the fact that the third party would give the defender proper advice. Thus there were averments of reliance, or perhaps “dependence” (Clerk & Lindsell, Torts (21st edn), para.8-113, and Spring v Guardian Assurance plc). As for causation, both the defender and the third party failed to notice a problem, and as a result STV became bound by a clause with erroneous wording, thus suffering loss. On the averments, it was implicit that the third party’s response was relied upon by the defender and became input into the ultimate decision which was relied upon by STV (who knew that the defender and the third party had been co-operating over cl.1.1.13). Even if it were suggested that STV was not interested in the third party’s view, and was relying upon the defender as lawyers, the fact that input from the third party filtered through to the defender and further up the chain was sufficient for the existence of a duty of care. STV relied on joint advice from the defender and the third party. STV averred that if it had known that there was an error in the lease, it would not have signed it. The defender admitted an error (ans.15, p.20A): but if the third party had flagged up a problem, the defender would have acted on that warning. Thus the defender had pled a relevant case against the third party in delict, a case which could not be said to be “bound to fail” (Jamieson).

[10] Decree of dismissal should be recalled and a proof before answer allowed. But if the court were dissatisfied with the averments relating to causation, the court was invited to consider putting the case out for a by order hearing. A minute of amendment might address the court’s concerns.

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D

E

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G

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Submissions for the third party and respondent Contract

B

[11] The pleadings were inadequate to instruct the creation or operation of a contractual obligation owed by the third party to STV in relation to the drafting of the RPI provision. It was always open to parties to contract so as to prevent a claim under s.3 of the 1940 Act, cf, Farstad Supply AS, and in this case both STV and the defender accepted that it was the defender’s function to see that the wording of the lease matched STV’s intention (p.20A and condescendence 5). The error in the RPI wording had in any event been obvious (not requiring specialised valuation expertise) and the defender gave no indication whether it had relied on the email communications with the third party. Communications amongst team members did not necessarily give rise to binding legal obligations. Causative reliance had not been pled, and the material set out in the pleadings was inadequate in the circumstances to give a relevant basis for a contractual obligation.

C

Delict

D

[12] For an “assumption of responsibility” case, it was necessary for the defender to aver that STV actually relied upon the third party in respect of the wording of the RPI provision. But that was not clear from the pleadings.

Indeed both STV and the defender averred that it was the defender’s responsibility to ensure that the wording in the lease was accurate. Sub-head (d) of BCCI v Price Waterhouse (No.2) applied (i.e. there was another adviser “on whom the advisee would or could rely”). Spring v Guardian Assurance plc did not weaken the need for reliance in an assumption of responsibility case.

The email exchange ended with unanswered questions. Thus the averments did not satisfy the essential requirement of reliance.

[13] The reclaiming motion should be refused, and the decision of the commercial judge adhered to.

Discussion

E

F

G

5183.indd 266

[14] In ans.15, the defender avers that: “[E]sto the pursuer suffered loss and damage as a consequence of breach of contract or fault on the part of this defender, any such loss was also caused or materially contributed to by breach of duty on the part of CBRE [the third party]. CBRE were chartered surveyors and property agents with extensive experience in rent review matters. As the pursuer was aware, CBRE had been asked by the defender to consider and comment on the RPI provision within the enhanced rent definition. CBRE asked their rent review specialists to consider the draft lease. They raised no concerns about the operation of the indexation provision in the definition. CBRE owed contractual and delictual duties to the pursuer as professional advisers.

They had a duty to exercise the standard of care reasonably to be expected of chartered surveyors and commercial property agents of ordinary competence. It was their duty to consider the terms of the enhanced rent definition and to advise whether the indexation provision worked satisfactorily throughout the 20-year term of the lease. It was their duty to advise if the indexation provision resulted in grossly excessive rental increases in later years. CBRE failed to do so and by said failure caused or materially contributed to the pursuer’s loss and damage. . .”

[15] I accept that, in applying s.3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940, it is necessary for the court to decide whether,

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if the third party had been sued by STV, it would have been held liable (Farstad Supply AS v Enviroco Ltd).

A

Contract

[16] No written contract is referred to in the pleadings. Thus the nature and extent of the contractual relationship between STV and the third party requires to be proved by evidence.

[17] In ans.3, the defender avers that: “In about January 2003 the defender was instructed by the pursuer in connection with securing a lease for premises at Pacific Quay. The third party was instructed by the pursuer to act as their surveyors in the same project. It is implicit when a professional team of advisers is instructed on such a development that they will cooperate with and respond to queries from other professional advisers within the team. In particular where chartered surveyors employ a specialist in rent reviews it is expected that legal advisers charged with drafting rent review provisions will seek assistance from such specialists. The defender and third party were instructed by the pursuer to negotiate and finalise a lease with the Consortium. . . .”

The averments relating to the professional team were based on an expert report.

[18] When those averments are read together with the averments concerning the exchange of emails between the defender and the third party (ans.5), it is, in my opinion, difficult for a court at this stage to conclude that the third party’s contractual duties owed to STV did not extend to giving expert advice about rent review provisions to another member of the professional team (and thus indirectly giving such advice to the client, STV), and in particular expert advice about the wording of the RPI provision such that the heads of terms were accurately translated to and recorded in the missives and lease. Whether such advice was to be tendered directly to STV, or to another member (or members) of the team of professional advisers acting for STV, does not in my opinion matter, in the light of the defender’s averments relating to the method of working of the team of professional advisers (para.17 above) and also STV’s awareness that the defender and the third party were working together on the RPI provision. Thus I do not accept that there is any significance in the fact that the defender “does not point to. . .any instruction or request made by STV, or to any advice proffered by CBRE to STV” (para.12 of the Lord Ordinary’s opinion).

[19] On the basis of the pleadings, I consider that the defender offers to prove that the defender and the third party were members of a team of professional advisers with the modus operandi set out in para.17 above; the defender specifically requested advice and assistance from the third party (as professionals having knowledge and experience of rent review procedures) about the wording and working of the RPI provision; the third party did not reject the request as “not within our remit” or “not our responsibility” or “outwith our expertise”, but on the contrary offered certain advice; STV knew that the defender and the third party were working together on the wording of the RPI provision; the third party knew that STV had that knowledge; when the defender eventually allowed the existing version of the RPI provision to go forward to the next stage in the transaction, STV was entitled to assume not only that the defender had approved the wording, but also that the third party had not vetoed it or objected to it or raised a warning about it (reliance); the third party knew (or ought to have known) that that would be the case.

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[20] Thus I do not agree that it can be concluded at this stage that “[t]here is nothing to suggest that STV looked beyond the defender for advice on the terms of the lease, including the RPI formula” (para.12 of the Lord Ordinary’s opinion); or that there is “no foundation for the averment that STV instructed CBRE along with the defender ‘to negotiate and finalise a lease with the consortium’ ” (para.19 of the opinion); or that “there is nothing to indicate that CBRE undertook contractual liability to STV to provide (specialist advice on the RPI formula)” (para.12 of the opinion). On the contrary, on the basis of the defender’s pleadings it seems to me that the defender’s contention that the third party owed STV a duty of care ex contractu in relation to Clause 1.1.13 is statable, although the success of that contention would ultimately be dependent upon the facts found proved.

[21] In relation to breach of a contractual duty causing loss, it would in my view be open to a court, having heard the evidence, to conclude that the third party’s “happy in principle” reply of 7 April 2004 was, in the circumstances, the overarching advice in principle proffered by it to the defender and thus, by allowing a defective RPI provision to proceed to the next stage of the transaction, the third party caused or contributed to STV’s loss and damage.

[22] Accordingly, even although STV chose not to adopt the defender’s case against the third party, and even although STV has averments in condescendence 3 concerning the respective remits of the defender and the third party which prima facie appear to assist the third party (as STV avers that it was “not the third party’s role nor responsibility to draft the rent review provision in the lease”), I consider that the defender has averred a sufficiently relevant and specific contractual case against the third party, a case which is not bound to fail. Accordingly the test in Jamieson v Jamieson is not satisfied.

D Delict

E

F

G

5183.indd 268

[23] I accept that “the assumption of responsibility” test as set out by Sir Brian Neill in BCCI v Price Waterhouse (No.2) is the appropriate test to apply when considering whether there was a delictual duty of care owed by the third party to STV. I also accept that the question whether there was an assumption of responsibility falls to be determined on an objective basis (Lord Goff at p.181 of Henderson v Merrett Syndicates).

[24] In relation to sub-heads (a)–(c) at pp.587–588 of BCCI v PriceWaterhouse (No.2) (namely, the precise relationship between adviser and advisee; the precise circumstances in which the advice or information or other material came into existence; and the circumstances in which the advice was communicated, and for what purpose, and the degree of reliance which the adviser should reasonably have anticipated on its accuracy), I refer to the averments in paras. 5 and 6 above. In relation to sub-head (d) (the presence or absence of other advisers), the averments make clear that there were other advisers, but (importantly) explain that the defender and the third party were members of a team of professional advisers assisting the client, STV, in the Pacific Quay project. In relation to sub-head (e) (opportunity, if any, given to the adviser to issue a disclaimer), there was, on the averments, ample opportunity for the third party to issue a disclaimer or qualification: none was issued.

[25] Thus on the basis of the averments, I consider that the defender offers to prove (in parallel with the contractual case) that the defender and the third party were members of a team of professional advisers with the modus operandi set out in para.17 above; the defender specifically requested advice and assistance from the third party (as professionals having knowledge and experience of rent review procedures) about the wording and working of the

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RPI provision; the third party did not reject the request as “not within our remit” or “not our responsibility” or “outwith our expertise”, but on the contrary offered certain advice; STV knew that the defender and the third party were working together on the wording of the RPI provision; the third party knew that STV had that knowledge; when the defender eventually allowed the existing version of the RPI provision to go forward to the next stage in the transaction, STV was entitled to assume not only that the defender had approved the wording, but also that the third party had not vetoed it or objected to it or raised a warning about it (reliance); the third party knew (or ought to have known) that that would be the case. I therefore consider that the defender has pled a sufficiently relevant and specific case of the existence of a duty of care ex delicto owed by the third party to STV (cf, BCCI v Price Waterhouse (No.2); Henderson v Merrett Syndicates Ltd, Lord Goff at p.181; Spring v Guardian Assurance plc).

[26] As for averments relating to breach of duty, and causation, as noted in para.21 above, it would be open to a court, having heard the evidence, to conclude that the third party’s “happy in principle” reply of 7 April 2004 was its advice, and by allowing a defective clause to proceed to the next stage of the transaction, the third party caused or materially contributed to STV’s loss and damage.

[27] In the result therefore I am persuaded that the defender’s averments are sufficient in that they support a case that the third party, if sued by STV, would (depending on the facts proved) be found liable to STV ex delicto, and accordingly that the defender has pled a relevant case in delict entitling it to contribution in terms of s.3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940. As with the contractual case, I am unable to conclude that the defender’s delictual case is bound to fail (Jamieson v Jamieson).

A

B

C

D

Decision

[28] For the reasons given above, I am persuaded that the defender has sufficient relevant and specific averments entitling it to a proof before answer against the third party. I therefore propose that we allow the reclaiming motion, recall the interlocutor of 9 May 2014, allow a proof before answer, and remit the cause to the Lord Ordinary to proceed as accords.

E

LORD BRODIE Introduction

[29] I have had the considerable advantage of having had sight of your Ladyships’ respective opinions in draft prior to preparation of my own. I gratefully adopt what appears in Lady Paton’s opinion at paras 1–13 in relation to factual background, the terms of cl.1.1.13, the email exchange between representatives of the defender and the third party founded on at ans.5 for the defender, the defender’s pleadings, and the respective submissions for the defender and third party.

[30] As your Ladyships indicate, the issue in this reclaiming motion is whether the defender has pled sufficient relevant and specific averments against the third party such that a proof before answer should be allowed.

After a debate, the Lord Ordinary answered that question in the negative and dismissed the action insofar as directed against the third party. The defender has reclaimed.

[31] The defender does not seek to escape all liability to the pursuer. It specifically admits that:

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“[C]lause 1.1.13 of the lease contained a drafting error concerning the indexation of rent. . . .the defender should have identified the drafting error and advised the pursuer about it. . . .the defender’s failure to do so amounted to a breach of their contractual duties owed to the pursuer.”

What the defender seeks is a finding entitling it to recover contribution from the third party, as provided for by s.3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940. That requires the defender to establish that had the pursuer chosen to sue the third party, the third party might have been held liable in respect of the loss or damage on which the action against the defender is founded. The defender pleads two cases in respect of which it alleges that the third party could have been held liable to the pursuer. One is based on contract. The other is based on delict. They are pled in the alternative.

The supportive averments are summarised by Lady Paton at paras 6, 14 and 17 of her opinion. I shall consider the cases separately. I turn first to that based on contract.

Contract The relevant term

D

E

F

G

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[32] That there was a contract between the third party and the pursuer is not in issue. In ans.3 the defender avers that the third party was instructed by the pursuer to act as its surveyor in the project for securing a lease for the premises at Pacific Quay in which the pursuer was to be tenant. That is admitted by both the pursuer and the third party. According to both the pursuer and the third party what the third party accordingly contracted to provide to the pursuer were “commercial property consultancy services”. The contract for the provision of these services does not appear to have been reduced to writing.

I have no reason to doubt the accuracy of the information provided by Mr Young in the course of his submissions that nothing of the nature of a contractual document had been recovered despite an attempt to do so by service of a specification, but for present purposes it is sufficient to note that while parties are agreed that there was a contract between the pursuer and the third party, no party seeks in their averments to delineate or limit the terms of that contract by reference to any written, or indeed verbal agreement.

Accordingly, when it comes to determine what the respective parties are to be regarded as having undertaken it is a matter of objective inference or imputation from the whole surrounding circumstances. There may be specialities but, primarily, the terms will be the ordinary incidents of a contract of this sort. In other words the third party will be held bound to provide the services which a commercial property consultant engaged for such a project usually provides.

As Lady Paton observes at para.16 of her opinion that will have to be proved by evidence.

[33] To be admissible evidence must have a basis in averment. As I have indicated, the defender avers that the third party was instructed by the pursuer to act as their surveyors in the project and therefore as part of the professional team which included the defender. The defender avers that the third party employed a rent review specialist. It further avers that it is implicit when a professional team of advisers is instructed for the purposes of such a development that they will cooperate with and respond to queries from other professional advisers within the team, and that, in particular, where chartered surveyors employ specialists in rent reviews it is expected that legal advisers charged with drafting rent review provisions will seek assistance from such

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specialists. From that premise, given that the defender and the third party were instructed by the pursuer to negotiate and finalise a lease, the defender invites the conclusion, and avers, that it was part of the third party’s retainer to check the proposed wording of the lease in areas within their competence, if asked to do so by the defender. The defender then avers that checking the terms of the rent review clause and in particular the operation of indexation, was within the competence of the third party. Of course I have no idea whether all or any of these averments are correct, but I would agree with Mr Young’s submission that the proposition that professional advisers in a team the members of which have different expertise will cooperate and respond to queries from each other within their respective spheres of competence does not seem extravagant. At any event, that is what the defender offers to prove.

Had the defender’s case been periled on the averment that “the defender and the third party were instructed by the pursuer to negotiate and finalise a lease with the consortium”, I would have had to agree with the Lord Ordinary that that was too inspecific to entitle the defender to proof, but that is not the position. The defender’s case is that, as a matter of contract, the third party had assumed a role which included checking the proposed wording of the lease in areas within their competence if asked to do so by the defender.

Accordingly, while it is only the defender’s averments which are under scrutiny at this stage, it is neither here nor there to say, as the pursuer and third party do say, that the third party was not instructed to draft or revise contractual documents.That is not the defender’s case. It accepts that it had the contractual responsibility for drafting and because there was a drafting error it is accordingly liable for the consequences. However, what the defender contends is that in parallel with the defender’s contractual obligations the third party also had contractual obligations. As far as the drafting of the lease was concerned these were very limited indeed but they did go the distance of checking wording (a) in areas within its special competence and (b) if asked to do so. For my part I would see that case as one which is coherent and sufficiently supported by averment. Therefore, to the extent that such a conclusion is determinative, I would respectfully disagree with the Lord Ordinary when he says that there is nothing to suggest that the pursuer looked beyond the defender for advice on the terms of the lease, including the RPI formula, and that accordingly there is nothing to indicate that the third party undertook contractual liability to the pursuer to provide it. The Lord Ordinary may be factually correct in what he says; the pursuer may not have supposed that the third party would offer any input on the wording of the clause in question, certainly, as he indicates, there is nothing to suggest any request on the matter being made by the pursuer to the third party or any advice being given directly to the pursuer by the third party. But, as I would see it, the Lord Ordinary being factually correct does not adversely affect the case that the defender seeks to make on averment. It is the defender’s case that, having engaged the third party, the pursuer would have been entitled to rely upon it providing the service specified in the defender’s averments. Whether the pursuer actually relied on the third party providing the service does not matter.

What matters is that the service was requested, and that by a member of the professional team, and that it was not satisfactorily performed. That being the situation, so the defender avers, the pursuer could have sued the third party for breach of contract, irrespective of whether the pursuer had relied on satisfactory performance by the third party or not. The pursuer has chosen not to do so. That does not prevent the defender, with a view to recovering contribution, making the case that the pursuer might have made.

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Breach and causation of loss

[34] For the proposition that the third party was in breach of its contractual obligation to check the proposed wording of the lease within the areas of its special competence the defender relies on its averments in ans.5 where an email correspondence beginning on 9 March 2004 is summarised. As a matter of generality, I would agree with Lady Clark that a debate on the relevancy should be capable of being conducted on the basis of the pleadings alone without resort to copy productions. However, this is a commercial action.

Among the consequences of that is the application of the requirements of Rule of Court 47.6 (2), which I assume were complied with, that there be appended to the defences a schedule listing the documents founded on or adopted as incorporated in the defences and that these documents be lodged as an inventory of productions. That being so and having regard to the flexibility in procedure in commercial actions which is encouraged by Rule of Court 47.5, I did not see it as illegitimate for Mr Young to refer to the copy emails lodged as productions in order to supplement what is averred in ans.5.

[35] The email correspondence is conveniently set out in para.5 of Lady Paton’s opinion. The defender’s case is that the third party’s obligation to check the wording was triggered by the defender’s request that it do so, made in the two emails sent by the defender to the third party on 9 March 2004.

What the third party was asked to check was cl.1.1.13, apparently drafted by the Consortium’s (that is the landlord’s) solicitors, which provided that: “Enhanced rent means (the enhanced rent agreed as payable at date of entry) subject to review and compounded (upwards only) at each successive anniversary (“the relevant date”) of the date of entry, according to the formula R = I x A/B where R is the enhanced rent payable from and after the relevant date, I is the enhanced rent payable prior to the relevant date, A is the RPI for the date two months before the relevant date. . .and B is the RPI for the date two months before the date of entry.”

In ans.3 the defender admits the pursuer’s averments that the Consortium wished the enhanced rent to increase annually in line with the retail prices index, that this was known to the defender and that the pursuer was ultimately content to agree this. Although not admitting as much in ans.3, the third party avers at ans.5 that the enhanced rent “would increase in line with the retail prices index”. There would therefore appear to have been a common understanding among the pursuer, the defender and the third party as to what cl.1.1.13 was supposed to achieve. Just how spectacularly it failed to do so appears from the pursuer’s averments at art.4 of condescendence: “That definition provided for the enhanced rent to be increased each year, not by the increase in the retail prices index over the preceding year, but by the cumulative increase in the retail prices index over the whole period from the commencement of the lease to the relevant date. As a result, the enhanced rent would not increase in line with the retail price index. Instead it would increase in an exponential manner greatly exceeding inflation.”

Now, it is always easy to be wise after the event. The defect in the draft of cl.1.1.13 was apparently not spotted at the time by a number of no doubt able and experienced people. However, and on this I would understand that I am in agreement with Mr Connal, a view that might be available to the court after proof is that the defect in the draft was very obvious indeed, at least to anyone who was aware that “RPI” was an abbreviation for the retail price index and knew what the retail price index was. Beyond that, identifying the defect in the

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clause required no specialist skills whatsoever; it was simply a question of quite basic arithmetic. Just what a court might make of that would depend on its judgement in the light of all the evidence heard at proof but it might take the view that by communicating in the terms of the emails of 9 March 2004 the defender was disclosing to the third party that, egregious as that error might be, it was at risk of committing the very error which has led it becoming liable to the pursuer in the sum in respect of which the defender now seeks contribution. I agree with Lady Clark of Calton that given that the defender accepts that it had the contractual responsibility to finalise the lease in terms which were agreeable to the pursuer, for the defender to make a relevant case against the third party it must establish some causal connection between what it is claims to have been a breach of contract by the third party (a failure to check with a view to confirming that the draft clause did indeed provide for review of the enhanced rent in line with the retail price index or, if it did check, a failure to identify the defect in the draft) and the defender’s conclusion of the missives with an unrevised cl.1.1.13. However, agreeing with Lady Paton, I would see the defender’s reliance on the exchange of emails set out in para.5 of Lady Paton’s opinion and the subsequent conclusion of missives on 12 May 2004 with an unrevised cl.1.1.13, as a sufficient identification of breach of contract by the third party and causal connection between that breach and the relevant loss. The defender’s emails of 9 March with the wording in the second of them, “Enhanced rent – I think the RPI provisions work” would indicate that the defender has failed to identify any defect in the draft clause. However, the writer has not come to a final conclusion: “but I ask [third party] look at them”. There follows a correspondence which includes the third party’s emails of 30 March and 7 April in which no criticism is made of the draft clause, indeed in its email of 7 April the third party indicates “RPI – we are happy in principle with the RPI wording”. Having referred to the email correspondence, the defender avers: “At no stage during the email communications from 9 March 2004 onwards did (the third party) indicate to the pursuer or the defender that they were being asked to advise on matters outwith the contractual remit which they had from the pursuer. . . .On the contrary, (the third party’s) actings from 9 March 2004 onwards, as hereinbefore condescended upon, were only consistent with their acceptance that the commercial property consultancy services which they were obliged to provide to the pursuer included providing input from their rent review specialists to the pursuer’s team on the wording of the provisions being put forward in the draft lease.”

As far as the pleadings disclose, whatever other revisals may have been made to the draft contracts between 9 March and 12 May 2004, no alteration was made to the draft clause, cl.1.1.13. I would therefore read the defender’s averments as allowing the conclusion that this was because the defender had failed to identify the defect in the draft and that the third party, despite having been invited to check the clause, had either failed to do so or, if it did check the clause, had also failed to identify the defect and to advise the defender accordingly. None of this may be established at proof but in my opinion, in what is a commercial action, the defender has averred enough to entitle it to be given the opportunity to try.

[36] Your Ladyships both draw attention to the defender’s general denial, at ans.15, of the pursuer’s averments which are designed to instruct a causal connection between the defender’s breach of contract in failing to identify the effect of cl.1.1.13 and the pursuer’s loss. That is illogical in that it is the defender’s case against the third party that it was the third party’s failure

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properly to check the wording of the clause that contributed to the error which constituted breach of contract on the part of the defender. A denial of the causal connection averred by the pursuer amounts to a denial of part of the causal connection which the defender relies on for its case for contribution. I would accept therefore that the defender’s averments are untidy. However, agreeing with Lady Paton, I am inclined to regard this as a loose end rather than anything more fundamental. It is not as if it raises any real doubt as to what the defender’s position is. In ans.15 the defender admits breach of contract by failure to identify what it characterises as a drafting error. It then avers that such loss and damage as the pursuer may have suffered as a result was also caused or materially contributed to by the third party and goes on to explain why in terms that make clear that the defender contends that its failure was due, at least in part, to a failure on the part of the third party. While, strictly, it is not conceded in ans.15 for the defender that the pursuer had actually incurred loss consequent on the defender’s breach, in ans.20 it is averred that the sum of £805,788 is a reasonable estimate of the pursuer’s loss and that, the defender having paid this by way of damages to the pursuer, it looks for a contribution from the third party in respect of that sum.

Delict

D

E

F

G

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[37] Being pled in the alternative, the defender’s delictual case against the third party proceeds on the assumption that the third party did not have the contractual obligation to the pursuer which is averred by the defender in ans.4.

Put very shortly, it is the defender’s contention under this head that by virtue of the defender’s request for assistance in its emails of 9 March 2004 and the third party’s apparent compliance with that request, the third party must be taken to have undertaken a duty of care (owed to the pursuer), the content of which embraced the specific duties reproduced at the final bullet point in para.6 of Lady Paton’s opinion. The nature of the claim is for pure economic loss, allegedly caused by the negligent giving of advice or, perhaps, the negligent failure to give advice.

[38] The third party’s first plea-in-law puts in issue the sufficiency of the defender’s averments to instruct all the necessary elements of its case against the third party: existence of the alleged duty, breach of the alleged duty and causal connection between breach and the pursuer’s loss. I understood Mr Connal to be critical of the defender’s averments in relation to each of these elements but, supporting the approach which had been taken by the Lord Ordinary, he concentrated his fire on the defender’s failure, as he would have it, to aver the necessary reliance by the pursuer on anything done or not done by the third party. Reliance is a necessary element because unless the defender can establish that what was done or not done by the third party was relied on by the relevant decision-maker in concluding the missives on the basis that enhanced rent would be calculated in terms of the defective clause then there is no causal connection between what is said to have been the third party’s negligence and the pursuer’s loss: cf, Henderson v Merrett Syndicates Ltd at p.180F. [39] As stated in terms at ans.5, and acknowledged by Mr Young the defender’s case depended on “assumption of responsibility”, as discussed by Sir Brian Neill in BCCI v Price Waterhouse (No.2) at pp.584D–588E. Lady Paton explains at paras. 23–26 of her opinion how the defender’s averments may be taken to satisfy the “assumption of responsibility” test. Her Ladyship addresses reliance and therefore causation at para.26.

[40] Agreeing with Lady Paton, I consider that there is enough in the defender’s averments to entitle it to put them to proof. That is not to say that

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the defender’s case is free from difficulty; on the contrary. Among these difficulties is identifying just what the defender means by reliance and how it intends to establish it and therefore causation (a matter which of course also has a bearing on the contractual case). However, this is not the stage for a detailed exploration of whether the defender can prove its case. As is noted by Lady Paton, we were reminded in the course of submissions of what was said

by Lord Normand in Jamieson v Jamieson at p.50: “The true proposition is that an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer’s averments are proved.

The onus is on the defender who moves to have the action dismissed, and there is no onus on the pursuer to show that if he proves his averments he is bound to succeed.”

A

B

Applying that proposition to the present case, as I have not been persuaded that the defender’s case must necessarily fail, I would not be prepared to dismiss it as irrelevant.

Disposal

[41] I would allow the reclaiming motion, recall the Lord Ordinary’s interlocutor of 9 May 2014, allow the defender proof before answer of all its averments and remit the cause to the commercial judge to proceed as accords.

C

LADY CLARK OF CALTON Summary

[42] I am grateful for the opportunity which I have had of reading the opinion in draft of her Ladyship in the chair. I am content to rely on the summary of submissions on behalf of the parties and the analysis of the legal framework which are set out therein.

[43] This case is pled by the defender in the context of a claim under s.3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (the 1940 Act). There is a complex legal framework, particularly in relation to the case pled in delict, but the difficulties which I consider exist for the defender do not turn upon any dispute about the applicable law. In my opinion, the difficulties arise in the pleadings of the defender. When I apply the Jamieson test to the pleadings, I conclude that the cases pled in both contract and delict are bound to fail. I am unable therefore to agree with the decision of her Ladyship in the chair that the defender has sufficient relevant and specific averments to entitle the defender to a proof before answer against the third party.

D

E

The pleadings by the defender and reclaimer The contract case

[44] The pleadings in this case which are now in issue were framed in the context of an action raised by STV Central Ltd (STV) against the defender.

Following a third party notice intimated to CBRE Ltd, the third party entered the action. In response to averments by the third party, STV averred (p.6A–B) that the third party’s remit in the transaction was to identify a site and negotiate commercial terms. The defender’s remit was to draft legal documents so that they correctly reflected the terms agreed. As between the pursuer and the third party there is no significant dispute in the pleadings about their contractual position inter se. That contractual position as averred does not involve any duty on the third party to revise contractual documents or

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contribute advice to that. The defender’s claims are founded on averments about the nature of the legal relationship and duties between STV and the third party.

[45] The averments of the defender are not in my opinion set out clearly in the pleadings. That may be because the main focus of the action has changed in that the dispute between STV and the defender has been settled. I consider however that the pleadings of the defender must be judged as they stand with any imperfections which they may have. In my opinion, her Ladyship in the chair correctly identifies some incoherence in the pleadings of the defender at the end of ans.15. I regret I am unable to agree with the opinion that one should interpret this denial by the defender as representing a loose end in the pleadings of a tripartite case and assume that the defender is not in a position to deny the pursuer’s averments on these matters. I consider that the pleadings as they stand must be taken to represent the position of parties.

[46] On my interpretation of the pleadings, the contract case pled by the defender is not based on any averments of any express agreed contractual terms between STV and the third party. The case is based on implied terms.

This was the position advanced by counsel for the defender in oral submission.

The main plank of the defender’s case is at p.17B–C: “It is implicit when a professional team of advisers is instructed on such a development that they will cooperate with and respond to queries from other professional advisers within the team. In particular where chartered surveyors employ a specialist in rent reviews it is expected that legal advisers charged with drafting rent review provisions will seek assistance from such specialists. The defender and third party were instructed by the pursuer to negotiate and finalise a lease with the consortium.”

I note that at p.17D there is an averment which is crucial to the defender’s case, to the effect that it was part of the third party’s retainer to check the proposed wording of the lease in areas within their competence if asked to do so by the defender. This appears to be an averment of a specific contractual duty owed by the third party to STV, albeit the case is founded on implied duties arising out of the arrangements within a professional team of advisers.

I am unable to understand whether this is properly to be read as an implied duty, rather than an expressly agreed duty owed by the third party to STV and whether the duty is meant to arise somehow out of the averments quoted above at p.17B–C. [47] In the defender’s pleadings, reference is then made to a number of emails and meetings at p.17D–E. At p.18 there are further averments about the contents of emails. I note that the terms of the emails are not incorporated brevitatis causa. Some emails are referred to in the pleadings by date and a summary of content. Other emails make reference to some of the wording. No objection was taken by counsel for the third party to considering the transcripts of the emails and that exercise was carried out both before the Lord Ordinary and in this court. In my opinion, it is important however to distinguish the pleadings and potential evidential material. It is in the pleadings that one is supposed to find the critical averments about the basis of the case which it is sought to take to proof. I consider it merely leads to confusion to deal with this case by considering matters extraneous to the pleading namely the full terms of the emails. This examination of the emails may also explain why the Lord Ordinary in his opinion seems at times to drift from a discussion of the pleadings to a discussion of evidence. I would not have been prepared to approach the pleadings in this way. But in the absence of objection and bearing

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in mind the way in which the case has developed, I do not decide the case on this basis. What I will say is that there are no averments about how any of these emails affected, if at all, the drafting by the defender of the defective rent review clause which resulted in the loss to STV. The exercise which was carried out in court of reading the terms of the emails, distinct from the pleadings, shed no further light on this issue.

[48] At p.20 there are averments that the third party had been asked by the defender to consider and comment on the RPI provision within the enhanced rent definition and that the third party asked their rent review specialist to consider the draft lease. It is averred that no concerns were raised about the operation of the indexation provision. At p.20B–C, the pleadings of the defender then set out the duties of the third party: “It was their duty to consider the terms of the enhanced rent definition and to advise whether the indexation provision worked satisfactorily throughout the 20-year term of the lease. It was their duty to advise if the indexation provision resulted in grossly excessive rental increases in later years.”

A

It is averred that the third party failed to do so and by said failure caused or materially contributed to the pursuer’s (STV) loss and damage.

[49] In considering the pleadings, I note that the defender accepts that they are the legal advisers charged with drafting the rent review provisions albeit in the context of the arrangements set out at p.17B–C. It is averred that it was part of the third party’s retainer (with STV) to check the proposed wording of the lease in areas within their competence if asked to do so by the defender. I consider that this is a bald averment unsupported by any averments to provide a foundation. No case law was cited to vouch such a legal duty in the circumstances averred by the defender. I consider that the Lord Ordinary was well entitled to draw the conclusions which he made in para.12 of his opinion and to reject the submission by the defender.

[50] But even if that conclusion is wrong, and assuming that the defender has relevant pleadings to aver a contractual relationship between STV and the third party which includes a specific term as set out at p.17D, (or even an implied term), in my opinion the case pled by the defender is bound to fail.

That is because there are no averments to found a causal nexus between the request by the defender and the response, or lack of it, by the third party and the drafting and “signing off” of the defective rent review clause by the defender. To explain by way of example. Even if the third party owed a contractual duty to STV to check the wording as averred by the defender, before STV could succeed in an action against the third party there would require to be some averments that the defender, in finalising their draft and carrying out their duties, relied on the response of the third party, if that be the case, or relied on silence as support from the third party, if that be the case, or some other averments which provide an appropriate foundation for causation. There are no such averments. Indeed I was left puzzled by the pleadings about this.

[51] In my opinion, STV could not succeed in an action against the third party merely on proof of averment that the third party had a duty to check and advise as set out at p.20B–C and failed to do so, in a situation where the defender accepts that they are the legal advisers charged with drafting the rent review provisions. There would require to be some averment that the defender, in some relevant way, was affected by what the third party did or did not do and some fair notice of what was being complained about. In other words, if

C

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the defender concluded their final approved draft and “signed it off” without any reference or reliance to the third party “advice” and did not rely in some way on what the third party said or did not say, I do not understand on what basis STV could succeed against the third party. On this hypothesis there might be a relevant breach of duty by the third party to STV but there would be no causal connection between the act or omission by the third party with any loss suffered by STV. [52] In my opinion it is irrelevant for the defender merely to plead a case by reference to certain emails, particularly when it is plain from the emails that the specific questions asked by the defender do not reflect the duties pled at p.20B–C. In any event, the specific questions asked in the last email were not answered. There are no averments of fact to give fair notice of what case is pled and on what basis the defender avers that the breach of duty by the third party had an effect, if any, on the final drafting “signed off” by the defender. The averments are completely silent about whether this is a case by the defender based on the defender’s reliance of the “happy in principle” email or whether they did not rely on that but somehow concluded the draft and finalised the clause without answer to their requests for specific information in the last email dated 7 April 2004 or whether they did something else. The defender must know or should know on what information from the third party, if any, they finalised and “signed off” the draft. If the complaint is an absence of timeous information from the third party, this should be averred. In my opinion on the basis of fair notice alone, the defender’s pleadings are inadequate.

[53] I also observe that neither in the averments by the defender or in the emails is there any reference to a request by the defender to the third party in terms foreshadowed in the breaches of duty specified at p.20B–C. There are no averments that questions were directed to the third party by the defender about whether the indexation provisions worked satisfactorily throughout the 20-year term of the lease, or whether the indexation provision resulted in grossly excessive rental increases in later years.

The delict case

E

F

[54] The case in delict is tacked on briefly at p.19A. There are no separate averments by the defender in support of this case. The delictual case is legally complex. Counsel for the defender accepted that he required to plead himself into “the assumption of responsibility test” as set out by Sir Brian Neill in [B]CCI v Price Waterhouse (No.2). In my opinion the defender’s pleadings fail to achieve that. There are no averments in this case that the defender relied on the “happy in principle” email. Indeed I have explained my difficulty with the pleadings which give no adequate notice of what the defender relied on, if anything.

[55] Her Ladyship in the chair may be correct in identifying that there is a way in which the defender might be able to plead a relevant delictual case. In my opinion however the defender has not done so.

Conclusion

[56] For these reasons therefore I would refuse the reclaiming motion.

For the pursuer: non-participating party.

For the defender and reclaimer: A Young QC, Gardiner, instructed by DWF LLP, Solicitors, Edinburgh.

For the third party and respondent: Connal QC, Solicitor advocate, instructed by Pinsent Masons LLP, Solicitors, Edinburgh.

G

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A COURT OF SESSION

21 May 2015

Outer House Lord Turnbull LS

Petitioner

B

Mental Health—Compulsory Treatment Order—Petitioner held in medium level of security wishing to challenge level of security but unable to do so because not “qualifying patient”—Scottish Government failing to draft regulations—Whether order for implement should be made—Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), s.264 The petitioner, a patient held under a compulsory treatment order in Rowanbank Clinic, wished to challenge the level of security under which he was being held but was unable to do so because the clinic where he was being held was not defined in regulations as a ‘qualifying hospital’. In its decision in R M v Scottish Ministers, 2013 SC (UKSC) 139 the Supreme Court had decided that the failure by the Scottish Ministers to draft and lay regulations defining qualifying hospital was unlawful.

The petitioner applied at common law for an order for implementation.

Counsel for the petitioner argued that it had been decided by the Supreme Court that the Scottish Ministers were under a duty to exercise their power to make the necessary regulations and draft regulations, which had been prepared, were remarkably concise, which, he suggested, demonstrated that appropriate regulations could be drafted easily and very quickly. The respondents had to abide by the decision of the Supreme Court and a failure to do so would be a denial of the rule of law which would bring the system of justice itself into disrepute.

Counsel for the respondents argued that it was not appropriate to make an order requiring the Ministers to lay regulations before the Parliament as the respondents had a discretion as to how to address the deficiency identified by the Supreme Court. They had decided to amend the principal legislation and then promulgate regulations under the amended Act. The order sought would be to no advantage.

Held that there was no basis to conclude that the making of an order in the petitioner’s favour would be of any advantage or serve any proper purpose, the court had a discretion and it was not appropriate to make any order in favour of the petitioner arising out of the arguments based on common law (para.21); and petition refused.

Cases referred to:

C

D

E

F

Adami v Malta [2006] ECHR 637; (2007) 44 E.H.R.R. 3 Alleyne v Attorney General of Trinidad and Tobago [2015] UKPC 3 Ashingdane v United Kingdom [1985] ECHR 8; (1985) 7 E.H.R.R. 528 Bollan v United Kingdom, App No 4211/98, 4 May 2000 Hode and Abdi v United Kingdom [2012] ECHR 1871; (2013) 56 E.H.R.R. 27 McGeoch v Lord President of the Council [2011] CSIH 67; 2012 S.C. 410; 2012 S.L.T. 224 M v Home Office [1994] 1 A.C. 377; [1993] 3 W.L.R. 433; [1993] 3 All E.R. 537

G

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R (Evans) v Attorney General [2015] UKSC 21; [2015] A.C. 1787; [2015] 2 W.L.R. 813; [2015] 4 All E.R. 395 R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58; [2006] 2 A.C. 148; [2005] 3 W.L.R. 793; [2006] 4 All E.R. 736 Reference by the Governor in Counsel Concerning Language Rights under the Manitoba Act [1985] 1 S.C.R. 721 R M v Scottish Ministers [2012] UKSC 58; 2013 S.C.L.R. 98; 2013 S.C. (U.K.S.C.) 139; 2013 S.L.T. 57 Sherrit v NHS Greater Glasgow and Clyde Health Board [2011] CSOH 37; 2011 S.L.T. 480 Stanev v Bulgaria [2012] ECHR 46; (2012) 55 E.H.R.R. 22 Walton v Scottish Ministers [2012] UKSC 44; 2013 S.C. (U.K.S.C.) 67; 2012 S.L.T. 1211.

The full circumstances of the case and the arguments of counsel are to be found in the following opinion of the Lord Ordinary which was issued on 21 May 2015.

C

LORD TURNBULL The petitioner’s circumstances

D

E

F

[1] The petitioner LS is a 20-year-old young man who is presently detained in the Rowanbank Clinic by virtue of a compulsory treatment order granted in terms of s.64 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act). He was first transferred to Rowanbank from Polmont Young Offenders Institution in May 2012 under an assessment order made in terms of s.52D of the Criminal Procedure (Scotland) Act 1995. He was then made subject to a short-term detention certificate in terms of s.44 of the 2003 Act before the compulsory treatment order was made in August 2012.That order has subsequently been extended on a number of occasions. No question as to the legality of any of these certificates, orders or decisions arises.

[2] The Rowanbank Clinic is an inpatient psychiatric treatment facility which operates a medium level of security. The petitioner wishes to challenge the level of security under which he remains detained but there is, as yet, no effective mechanism by which he can do so before the Mental Health Tribunal for Scotland (the tribunal). The orders which the petitioner originally sought are set out in his petition as follows: “3(i) Declarator that the continuing failure of the Scottish Ministers to draft and lay before the Scottish Parliament regulations under s.268 (11) and (12) of the 2003 Act, even if such regulations have only interim effect, is unlawful et separatim in violation of art.5 et separatim art.14 when taken with art.5 of the European Convention on Human Rights and Fundamental Freedoms; (ii) An order ordaining the Scottish Ministers to draft and lay before the Scottish Parliament regulations under s.268 (11) and (12) of the 2003 Act within 28 days or such other period as the court considers appropriate.”

The legislative background

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[3] The parties to this action were agreed as to the content of the legislative background within which the petitioner’s argument was presented.

[4] Chapter 3 of the 2003 Act provides a structure within which patients detained in a state hospital, or other hospitals, may raise before the tribunal the question of whether they are being detained in conditions of excessive

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security and permits the tribunal to make an order which has the effect of ensuring that the patient is transferred to a hospital in which he can be detained in appropriate conditions. The 2003 Act deals separately within Ch.3 with, on the one hand, patients who are detained in a state hospital, and, on the other hand, patients who are detained elsewhere. Section 264 of the 2003 Act permits a patient detained in a state hospital to apply to the tribunal to challenge the level of security with which he is being detained. That section of the Act was brought into force on 1 May 2006.

[5] Section 268 of the 2003 Act is designed to give a similar right of challenge to patients who are detained in hospitals other than state hospitals.

It applies to “qualifying patients” who are detained in a “qualifying hospital”.

Before this section can have operative effect the two relevant terms require to be defined in regulations to be made by the Scottish Ministers. They have had power to do so since 6 January 2006. Section 326 of the 2003 Act provides that any such regulations are to be made by statutory instrument a draft of which must be laid before the Scottish Parliament for approval. No such regulations have yet been laid before Parliament and patients such as the petitioner who are detained other than in a state hospital have no ability to challenge the level of security within which they are detained before the tribunal.

[6] In its decision in R M v Scottish Ministers the Supreme Court decided that the failure by the Scottish Ministers to draft and lay such regulations before the Scottish Parliament prior to 1 May 2006 and the continued failure to do so since that date was and is unlawful. The decision of the Supreme Court was issued on 28 November 2012. On 19 June 2014, the Mental Health (Scotland) Bill was introduced to the Scottish Parliament. This is the method by which the Scottish Ministers have sought to address the unlawfulness identified by the Supreme Court. If enacted, this legislation will provide for amendments to the 2003 Act which will include amendments designed to address the application of s.268. The Bill however still contemplates the definition of a “qualifying hospital” being provided by regulation. On 24 April 2015 a draft set of regulations was prepared and presented to the Health and Sport Committee of the Scottish Parliament. Those draft regulations identify three hospitals as falling within the definition of “qualifying hospital”, one of which is the Rowanbank Clinic.

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The petitioner’s case

[7] On behalf of the petitioner, Mr Mitchell QC presented his common law case relying upon the declarator of unlawfulness pronounced by the Supreme Court in R M. He pointed out that it had been decided in that case that the Scottish Ministers were under a duty to exercise their power to make the necessary regulations no later than 1 May 2006. He observed that by letter dated 10 December 2012, the solicitor for the respondents stated that they accepted the ruling that the Scottish Ministers acted unlawfully and that they were now taking steps to address that situation. A year and a half passed before the 2014 Bill was introduced and, on 27 March 2015, nearly a further year later, the respondents stated to Parliament that they were developing regulations and said, “this is a very technical and complex matter and it is important that sufficient and full consideration is given to precisely how the regulations are shaped”. That having been said, Mr Mitchell observed that the draft regulations presented to the Health and Sport Committee of the Scottish Parliament on 24 April 2014 were in fact remarkably concise, consisting of little more than a few lines of text. This he suggested demonstrated that

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appropriate regulations under the 2003 Act could now be drafted very easily and very quickly.

[8] The petitioner submitted that the respondents must abide by the decision of the Supreme Court and a failure to do so would be a denial of the rule of law which brought the system of justice itself into disrepute. The Executive does not obey the law as matter of grace and is under the same duty of obedience to the law as it stands at any given time as is any citizen—R (Evans) v Attorney General; Alleyne v Attorney General of Trinidad and Tobago; M v Home Office. The duty of the respondents was to take steps to remedy the unlawful conduct identified by the Supreme Court in R M and to do so within the “minimum period of time”. Support for the “minimum period of time” formulation could be found in the analysis undertaken by the Supreme Court of Canada in the Reference by the Governor in Counsel concerning language rights under the Manitoba Act. . . .

[9] In light of the history founded upon by Mr Mitchell he contended that it was not strictly necessary for the court to grant the declarator which he sought in para.3(i) of this petition. The failure of the respondents to comply with the decision of the Supreme Court already entitled him to an order for implement at common law. He submitted that, consistent with the duties identified in the authorities mentioned, it would be reasonable to expect the respondents to be able to draft regulations in terms of the 2003 Act immediately.

All that would be necessary would be a minor adjustment to the terminology already embodied in the draft regulations produced on 24 April. There would be ample time to lay these new draft regulations before the Health and Sport Committee of the Scottish Parliament at its meeting of either 19 or 26 May. That committee could report to Parliament shortly thereafter and parliamentary approval of the regulations could be obtained before the recess scheduled for 27 June. The regulations could then be in force within a matter of days thereafter. Accordingly, he invited me to make an order for implement in terms of para.3(ii) of his petition.

[10] Mr Mitchell also submitted that the respondents’ failure to make regulations under the 2003 Act was incompatible with his rights in terms of the Convention. However, this aspect of his case seemed to me to be presented as a secondary, or fall-back proposition. Whilst the case as contained within the petition included an argument to the effect that the petitioner’s art.5 rights had been infringed this was not insisted on during the course of the oral argument. Mr Mitchell invited me, if granting declarator, to do so under deletion of the words in para.3(i), “art.5 et separatism,” the effect being to leave only his argument that the petitioner’s art.14 rights had been infringed.

[11] He advanced two contentions in support of this proposition. First, that it was beyond question that the petitioner’s detention fell within the ambit of art.5, and second, that the failure to provide a right to a patient detained in Rowanbank Clinic to challenge the conditions of his detention before the tribunal, when such a right was available to a patient detained in the State Hospital at Carstairs, was discrimination on the basis of status contrary to art.14.

The respondents’ case

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[12] On behalf of the respondents, the Dean of Faculty emphasised that the Scottish Ministers accepted the ruling of the Supreme Court in R M, they had made this plain in their answers to the present petition. It was though necessary to understand how matters had unfolded. It had been conceded by the petitioner in R M, as noted at para.21 of the decision, that:

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“the court could not appropriately make an order requiring the Ministers to lay regulations before the Scottish Parliament, since the Ministers could alternatively invite the Parliament to repeal or amend the relevant provisions of the 2003 Act”.

[13] The respondents had a discretion as to how to address the deficiency identified by the Supreme Court and questions of policy were raised which required to be appropriately considered. Following upon a process of consultation, which involved the Mental Welfare Commission for Scotland and the tribunal, amongst other parties, the respondents decided that they should proceed by amendment to the principal legislation and promulgate regulations under the 2003 Act as amended, rather than proceed with regulations under the Act as it stood. As a consequence the 2014 Bill had been introduced. It was important he said to appreciate that the Bill contained two filters concerning the application of s.268 of the 2003 Act. The first was that an application could only be made by patients detained in a qualifying hospital and the second, introduced by suggested amendment of the Bill, was that any such application needed to be supported by a report from an approved medical practitioner.

The respondents’ anticipation was that the Bill would be heard at stage 3 debate on 16 and 17 June of this year, that the Act would receive the royal assent in the summer, and that the regulations now prepared in draft would be laid after the summer recess.

[14] The Dean of Faculty’s submission was that in practical terms the order sought by the petitioner would be of no advantage. The procedures which were in place to address the admitted state of unlawfulness would provide him with the outcome which he desired within a timescale which had been set out.

That timescale was no more uncertain than that involved in the process which the petitioner suggested. If an order requiring the respondents to lay regulations under the present terms of the 2003 Act was made it could be complied with quickly but the matter would then be out of the hands of the respondents. The Health and Sport Committee might decline to give approval to any such regulations given the fact that a Bill was before Parliament. Equally, they might decide to remit matters to the Delegated Powers Committee. It was unlikely that the Delegated Powers Committee would approve of a requirement for support from a medical practitioner being introduced by way of subordinate legislation. The Scottish Ministers had acknowledged their responsibilities and were in the process of addressing the matter. The court had a discretion in determining whether or not to grant the orders sought and should decline to exercise it in favour of the petitioner—McGeoch v Lord President of the Council, per Lord Mance at para.39 and Walton v Scottish Ministers, paras 95, 131–133 and 156.

[15] The Dean of Faculty also submitted that if it was not necessary to make an order for declarator and an order for implement under the common law, then neither would it be necessary to make such orders under the Convention. Replying generally to the petitioner’s case based on the Convention he pointed out that the petitioner’s detention was according to law, but that he was detained for therapeutic benefit. The question of the level of security within which he was detained was not related to any therapeutic consideration but to the level of risk which he posed. A distinction had to be drawn between detention in prison and detention in a psychiatric treatment facility. In the context of the petitioner’s case the scope of art.5 was restricted to a consideration of whether or not he was detained in an institution which was appropriate for the purpose of his detention, namely treatment, rather

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than the conditions of security within that institution. It could not be said that the petitioner was detained in an inappropriate institution relative to the ground upon which he was detained and art.5 was not engaged. Reliance was placed on the cases of R (Munjaz) v Mersey Care NHS Trust and Ashingdane v United Kingdom.

[16] In any event, it was submitted that there was no distinction based on status. Any distinction such as existed was based on the place within the overall therapeutic estate where the petitioner was detained.

B

Intervention by the Commission for Equality and Human Rights

[17] On 19 March 2015 the Commission for Equality and Human Rights was granted leave to intervene and to lodge a written submission. That submission was before me at the hearing but the Commission was not represented and I heard no oral submissions on their behalf.

Discussion

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[18] It was accepted by the respondents that the state of unlawfulness identified by the Supreme Court in R M has not yet been cured, since regulations under the 2003 Act have still not been laid and the proposed amendments contained in the 2014 Bill have not yet passed into law. Nevertheless, steps have been taken. I accept, of course, the proposition that the Scottish Ministers require to respect and be bound by the law as much as anyone else. However, in the context of what steps the court can, or should, take in order to enforce compliance with the law, the analogy between steps to be required of an individual and those to be required of government is perhaps of limited value.

The Scottish Ministers have responsibility for the development of policy and, in the context of making legislation, require to respect the relationship between government and Parliament.

[19] It was accepted on behalf of the petitioner that he could not seek an order regarding the content of any regulations, since policy was for the government. A similar concession was made in R M when it was acknowledged that the Scottish Ministers had a discretion as to the steps which they took to remedy the deficiency. Up until receiving the decision of the Supreme Court the respondents were entitled to consider that they were acting within the law.

The challenge based upon a failure to provide a mechanism for patients such as the petitioner to appeal to the tribunal had been unsuccessful, both in the Outer House and in the Inner House. The criticisms of the speed with which matters progressed after November 2012 might well be valid, but it cannot be said that nothing has been done.

[20] The question of whether there is any proper purpose to be served by granting the orders which the petitioner seeks therefore has to be considered in light of the circumstances as they presently stand. There is no purpose to be served by declaring again that the respondent’s failure to draft and lay regulations under the 2003 Act is unlawful. Counsel for the petitioner recognised this. A parliamentary process has been initiated by the respondents with the purpose of addressing the deficiency identified in R M. It is true that no undertaking has been given as to the timescale within which this will be achieved nor, strictly speaking, is the matter within the complete control of the respondents. They have however outlined their anticipation of how matters will proceed. As set against that, the petitioner’s suggested remedy carries no greater certainty of outcome or of timescale. As Mr Mitchell acknowledged, all that the court can do is to order that suitable regulations be drafted and placed before the Health and Sport Committee of the Scottish Parliament

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within a certain time period. Neither the court, the petitioner nor the respondents can control what happens thereafter.

[21] On the information I have there is no basis to permit me to conclude, or to assume, that making an order in the petitioner’s favour would be of any advantage or serve any proper purpose. On the basis of the cases relied on by the Dean of Faculty I accept that I have a discretion as to whether to make any order or not. In the whole circumstances it is not, in my view, necessary or appropriate to make any order in favour of the petitioner arising out of his arguments based on common law.

[22] The petitioner’s argument under the Convention was, as I have indicated, presented as something in the nature of a fall-back position and the anticipated submission that his art.5 rights had been infringed did not materialise. In this context it is perhaps important to appreciate that the Supreme Court’s decision in R M did not concern Convention rights. Nevertheless, Mr Mitchell did ask me to take account of the written submissions presented on behalf of the intervener. The introduction to those written submissions includes the comment that, “the petition raises complex issues in relation to art.5 and art.14 of the European Convention on Human Rights. . .in the context of mental health law”.

[23] The written submissions go on to address the import of art.5 for patients such as the petitioner in some detail, but include the following comments: “11. The traditional approach to art.5 ECHR is to limit the application of the protections to the legality of the detention itself and to exclude issues arising in relation to the conditions of detention from the ambit of art.5 (Ashingdane v UK).

12. If such a rigid approach were adopted in the present case, then art.5 would not be engaged. The petitioner has been detained under the 2003 Act in a medium secure mental health facility. Accordingly, the issue of whether there is a more appropriate facility for the petitioner to be housed would be outwith the ambit of art.5 ECHR.” Having made these concessions, the submissions for the intervener go on to argue that such a rigid demarcation between the legality of detention and the conditions of detention is inappropriate (my emphasis) and is not an accurate statement of contemporary law. The eventual proposition advanced is that both arts 5 and 14 are engaged in the circumstances relied upon by the petitioner, and that in the absence of the relevant regulations under the 2003 Act, his art.5 and art.14 rights have been breached.

[24] Insofar as relevant to the present action art.5(1) provides: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (e) the lawful detention. . .of persons of unsound mind. . . .”

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Article 5(4) provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

[25] In giving the decision of the Court of Appeal in R (Munjaz) Lady Justice Hale (as she then was) explained that art.5 is concerned that deprivation of liberty should be properly imposed, its lawfulness open to challenge so that a

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person unlawfully detained may be set free, and that the place of detention conforms to the purpose for which it is imposed. She explained that beyond that it was not concerned with the conditions of detention. Her observations were supported by what was by said when the case reached the House of Lords by Lord Bingham of Cornhill at para.30; by Lord Hope of Craighead at para.85; by Lord Scott of Foscote at para.101; and by Lord Brown of EatonUnder-Heywood at para.111. Each reflected the view of the European Court of Human Rights [ECtHR] in Ashingdane v United Kingdom, when that court stated that in principle the detention of a person as a mental health patient will only be lawful for the purposes of art.5(1)(e) if effected in a hospital, clinic or other appropriate institution authorised for that purpose but that otherwise art.5 was not concerned with suitable treatment or conditions.

[26] The case of R(Munjaz) concerned the circumstances in which a patient who was detained in a mental health hospital came to be subjected to periods of seclusion within that facility in terms of a policy developed by the hospital which was inconsistent with a Code of Practice issued by the Secretary of State for Health giving guidance on the use of seclusion for detained psychiatric patients. In giving his opinion at para.85, Lord Hope of Craighead observed that a person who is of unsound mind must be detained in a place which is appropriate for that purpose, that art.5(1)(e) is not concerned with the patient’s treatment or the conditions of his detention, and noted the ECtHR decision in Bollan v United Kingdom, in which it was stated that disciplinary steps imposed on a prisoner which have an effect on conditions of detention within a prison fall to be viewed as modifications of the conditions of detention and fall outwith the scope of art.5(1). He then went on to state: “86. In my opinion the seclusion of a patient who is lawfully detained at Ashworth under the conditions laid down in the policy does not amount to a separate deprivation of liberty which engages art.5.”

[27] As the Dean of Faculty suggested, the various footnote references to Ashingdane in the recent Grand Chamber case of Stanev v Bulgaria support the proposition that the law still remains the same under the Convention.

[28] In light of these observations the argument that the law had moved on from what was said in Ashingdane can be seen to be challenging and contentious.

Given that Mr Mitchell did not seek to argue that the petitioner’s art.5 rights had been breached I am left to assess this proposition as presented by the intervener.

[29] Perhaps the first point to acknowledge is that the petitioner is detained in accordance with a procedure prescribed by law. The statutory provisions underpinning his detention have been identified above and there is no suggestion of any irregularity or unlawfulness in the making of any of the relevant orders.

[30] At paras 16–29 of the written submissions an argument is advanced concerning the concepts of arbitrariness and proportionality. These of course are familiar concepts in the context of Convention jurisprudence and were taken account of by the ECtHR in giving its decision in Ashingdane. Reliance is placed on a number of cases which do not concern the detention of patients in appropriate and authorised psychiatric institutions. None of these cases contain any criticism of the decisions in Ashingdane or R(Munjaz). In particular, nothing is said which undermines the proposition that a patient lawfully detained in a mental health facility is not deprived of his liberty on account of being placed in more restrictive conditions. Nothing is said which undermines

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the proposition that art.5 cannot found a complaint directed to the category of institution within an appropriate system. All of the cases relied upon concern circumstances which are quite different from the petitioner’s.

[32] The intervener’s starting-point is to recognise that if Ashingdane correctly reflects the legal position for a patient lawfully detained in a psychiatric hospital for therapeutic purposes, then art.5 is not engaged. The cases relied upon do not seem to me to bear upon the decision in Ashingdane.

Just as importantly, nothing is said in the written submissions about the views expressed by the majority in the House of Lords in R(Munjaz). In these circumstances I cannot accept the proposition that the demarcation identified in Ashingdane between the legality of detention in an appropriate type of institution and conditions of detention no longer reflects contemporary law.

[32] The argument which arose under the Convention, and which was insisted upon by the petitioner, was that his rights in terms of art.14 had been infringed. The submission was that the application of art.14 does not presuppose the violation of one of the substantive rights guaranteed by the Convention. All that was necessary for consideration to be given to the art.14 argument was that the facts of the case fell within the ambit of, in this case, art.5—Hode and Abdi v United Kingdom; Adami v Malta.

[33] The argument that patients detained in one psychiatric hospital should have the same rights of access to the tribunal as possessed by patients detained in another is of course an attractive one. At least so far as patients held in a medium secure facility are concerned, it is what the 2014 Bill sets out to achieve. The Dean of Faculty did not suggest that any present difference as could be pointed to was justified. His point was that art.14 only has any application to the petitioner’s circumstances if it can be shown that there has been discrimination in the manner in which his art.5 rights have been secured or enjoyed. In other words, it is a question which only arises if the petitioner’s circumstances come within the general ambit of art.5 for art.14 purposes. The Dean of Faculty’s submission was that the petitioner’s case raised questions of conditions and procedures for addressing those conditions. On this analysis art.5 was simply not engaged to any extent.

[34] As was recognised by the intervener in paras 11 and 12 of the written submissions (as quoted in para.23 above), if the decision in Ashingdane properly reflects the law then the circumstances of the petitioner’s detention fall outwith the ambit of art.5. In light of the decisions in Ashingdane and R (Munjaz), and what I have said about them already, in my opinion, the Dean of Faculty was correct in his submission that art.5 was not engaged to any extent.

[35] In arriving at this decision I have not overlooked the views expressed

by Lord Stewart in Sherrit v NHS Greater Glasgow and Clyde Health Board, a case brought to my attention by the Dean of Faculty. I note that in that case Lord Stewart expressed the tentative view that art.5(1)(e) might be engaged in the case of a patient detained under the provisions of the 2003 Act. The factual circumstances which lay behind this action for declarator were different from those of the present petition and I note that at para.42 Lord Stewart expressed the following view, “There are a number of aspects of the claim that make it, in my opinion, one which is more about the ‘lawfulness of detention’ than about the ‘conditions of detention.’ ” As I understand his decision, Lord Stewart concluded that the case as pled before him was, for other reasons, unfounded in law and he therefore decided that it was unnecessary for him to develop his tentative conclusions any further.

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[36] For the reasons given above, I will repel the first and second pleasin-law for the petitioner and I will uphold the third, fourth and sixth pleasin-law for the respondents; and reserve the question of expenses meantime.

For the petitioner: J J Mitchell QC, Irvine, instructed by Drummond Miller LLP, Solicitors, Edinburgh.

For the respondent: Dean of Faculty (Wolffe QC), Ross, instructed by the Scottish Government Legal Directorate, Edinburgh.

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A COURT OF SESSION

18 June 2015

Outer House Lord Brailsford MARSHALL NEILL CRAIG RONALD

Pursuer

B

against THE DUKE OF BUCCLEUCH

Defender

Agency—Actual authority—Police officer posing as insurance loss adjuster negotiating return of stolen painting for payment of a fee— Pursuer claiming payment of fee from principal—Whether actual authority The pursuer sued for a sum of money, said to be due as an “agreed payment” in terms of a contract between the parties. A preliminary proof was fixed limited to the specific issue of whether the defender gave authority to an undercover police officer with a false name of John Craig, posing as an insurance loss adjuster, to enter into the contract which the pursuer sought to enforce. The factual background was that a painting attributed to Leonardo da Vinci and known as “The Madonna with the Yardwinder” had been stolen from Drumlanrig Castle. The underwriters of the insurance company insuring it engaged the services of loss adjusters to attempt to recover the painting and undercover officers were provided by the Metropolitan police to pose as an art expert and a loss adjuster. A reward had been offered for information leading to the return of the painting, but the defender was not party to the offer of any reward. In due course a settlement was reached with the insurers in relation to the painting, but on the basis that in the event of subsequent recovery the Duke reserved the right to purchase it from the underwriters on payment of a specified consideration. Over the years contact with a person called “Mr Brown” claiming to have knowledge of the whereabouts of the painting was established, but the contact was subsequently lost and it was decided to modify the background information about John Craig by representing that he no longer worked for the loss adjusters but was working directly for the defender and a letter addressed: “To whom it may concern” purporting to come from the defender granted authority to Mr John Craig to act as his agent in the recovery of the printing.

In 2007 the pursuer was practising as a solicitor using the trading name “Marshalls” from premises in Lancashire. He wrote purporting to act on behalf of unnamed clients “who could assist in the recovery of the da Vinci painting”; his concern was to negotiate the safe repatriation of the printing and to negotiate a reward fee on behalf of his clients. In due course contact was made between the undercover officer and the pursuer, and an arrangement was made whereby it was agreed that painting would be handed over to John Craig and in return payments totalling £4.25 million be affected. A meeting was arranged and the painting was handed over but the pursuer was arrested by police officers. Until the point of his arrest the pursuer was proceeding in the belief that John Craig was a loss adjuster and acting as agent for the defender.

The case for the pursuer was that there was an express contract of agency between the defender and John Craig in terms of which Mr Craig was authorised to negotiate the recovery of the painting on behalf of the defender.

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Ronald v The Duke of Buccleuch (OH)

2016 S.C.L.R.

His case was plainly one of an agent acting with the express and actual authority of his principal. Counsel for the defender argued that the pursuer’s position was entirely periled upon the existence of actual authority. Applying the facts as disclosed in the evidence it could not be said that there was any actual authority. The defender was not aware of the undercover operation at its commencement and only became aware of its existence when he was asked to provide assistance in relation to the bolstering of the undercover agent’s “legend”. There was no consensus between the defender and John Craig in the creation of a relationship of agency. On the contrary, the documents were no more than a sham or a pretence designed to support the police operation attempting to recover the stolen painting.

The pursuer’s position was that he had not been convicted of any crime in relation to his dealings with the painting. He had acted throughout as an honest intermediary or broker seeking only to achieve the return of the painting to its lawful owner.

Held that on the basis of the evidence, there was no consensual agreement between the person known as John Craig and the defender of the type desiderated by the pursuer, but on the contrary, the arrangements were no more than a scheme designed and controlled by the police in an attempt to obtain the return of the stolen property and the test for the creation of authority between the principal and his agent was not met (para.19); and defender assoilzied.

Case referred to: Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 Q.B. 480; [1964] 2 W.L.R. 618.

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The full circumstances of the case and the arguments of counsel are to be found in the following opinion of the Lord Ordinary which was issued on 18 June 2015.

LORD BRAILSFORD [1] In this action the pursuer sues the defender for a sum of money said to be due as an “agreed payment” in terms of a “contract between the parties”. The pursuer at the times relevant to the dispute with which this action is concerned was an English solicitor resident and practising in that jurisdiction.The defender is the 10th Duke of Buccleuch. The defender inherited the title on the death of his late father, the 9th Duke, on 4 September 2007. Throughout most of the period within which the events with which this action is concerned occurred the defender occupied the title of and was known as the Earl of Dalkeith.

[2] I heard a preliminary proof before answer on 4 and 5 June 2015. In terms of an interlocutor dated 11 November 2014 pronounced by Lord Pentland the preliminary proof before answer was limited to the specific issue of “whether the defender gave authority to John Craig to enter into the contract which the pursuer seeks to enforce”. By a subsequent interlocutor, dated 12 November 2014 pronounced by Lord Stewart, the defender had been ordained to lead at the proof before answer.

[3] At proof the defender adduced the evidence of four witnesses. These were three retired police officers who had all served with Dumfries and Galloway Constabulary: Gary Copeland, a retired detective inspector; Peter McAdam, a retired detective chief inspector; and Michael Dalgleish, a retired detective superintendent. The fourth witness was the defender. The pursuer elected to lead no evidence.

[4] The factual background to the matter at issue was not by the conclusion of the evidence the subject of material dispute. A clear and relatively concise

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narrative of the factual issues which are relevant to the matters raised for preliminary proof can be stated on the basis of averments in the pursuer’s pleadings which are admitted in the defender’s pleadings and from the undisputed evidence of the witnesses.

[5] On 27 August 2003 a painting attributed to Leonardo Da Vinci and known as “The Madonna with the Yarnwinder” (the painting) was stolen from Drumlanrig Castle, Thornhill, a property owned by the defender’s family. At the date of the theft of the painting it was the property of the defender’s father, the 9th Duke. When the theft of the painting took place the defender was at another part of the Drumlanrig Castle Estate approximately 20 minutes’ drive from the Castle. He was informed of the theft shortly after it was discovered and immediately went to the Castle. On his arrival he found the police already in attendance.

[6] The painting was insured by the 9th Duke. A claim was made against the insurers in respect of the theft. The underwriters of the insurance policy engaged the services of a firm of loss adjusters, Tyler & Co and a loss adjuster, Mark Dalrymple employed by that firm became involved in attempts to recover the painting.

[7] The investigations of the police and efforts of the loss adjuster Mark Dalrymple to attempt to recover the painting were apparently extensive and prolonged. In the period between the date of the theft and some time in about 2006 the police officer in charge of the investigation was Detective Chief Inspector Peter McAdam. Mr McAdam gave evidence that following the theft he made contact with a specialist art theft division of the Metropolitan Police in London for advice and assistance in relation to the investigation of the theft of the painting. The Metropolitan Police provided Mr McAdam with the services of two undercover police officers, an individual known to him as John Craig and a further individual who Mr McAdam thought was named David Restor. Mr McAdam said he never knew whether these were these individuals’ real names or not. In order to provide these undercover police officers with what he called a “legend” which would appear convincing to any persons they might have contact with in connection with the painting it was represented during the investigation that David Restor was an art expert and John Craig was a loss adjuster. On the basis of the evidence I heard it would appear that there was a degree of cooperation with and assistance from the genuine loss adjuster Mark Dalrymple in relation to the “legend” created for the undercover agent John Craig. Between about 2004 and early 2007, the evidence was very vague as to the end date, there was contact between the police and a man called “Mr Brown”. The evidence about this aspect of matters was, I think it is fair to say, fairly brief and lacking detail. I say this not as a criticism of the police officers who gave evidence. I can appreciate that for sound operational reasons they would disclose no more about police undercover activities than was necessary to discharge their obligation to the court. Moreover I do not consider that the precise details of the police undercover operation in relation to the theft of the painting were either relevant to, or necessary for the resolution of the issues raised in the preliminary proof. Subject to that caveat the evidence I heard was to the effect that the individual known as Mr Brown represented to the undercover police officer John Craig that he either had information pertaining to the painting or could arrange for the return of the painting. His expressed aim was to obtain a payment in return for such assistance. The painting’s insurers had in fact offered a reward for information leading to the return of the painting and an advertisement to that effect had been placed in an art magazine. A copy of this advertisement was produced by

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the pursuer and comprised No 6/28 of Process. The advertisement informed persons claiming to have any knowledge of the painting to contact either Detective Chief Superintendent Peter McAdam or Mr Mark Dalrymple, the loss adjuster.

[8] At this point it is of some significance to note that in evidence which was unchallenged the defender said that he was not party to any offer of reward, had never seen the advertisement No 6/28 of Process and was in fact unaware that a reward had been offered until after the recovery of the painting. It should further be noted that in or about 2004 the 9th Duke reached a settlement with his insurers in relation to the painting. The terms of the insurance settlement were not explained precisely in evidence, again they are not relevant to the issues in dispute. The evidence I did have was that payment under the terms of the insurance policy was made to the 9th Duke subject to an agreement in terms of which in the event of subsequent recovery of the painting the Duke reserved the right to purchase it from the underwriters on payment of a specified consideration. On completion of these arrangements, the 9th Duke by deed of gift passed his right of ownership in the painting and assigned his right under the agreement with the underwriters to a trust known as the Buccleuch Heritage Trust.

[9] The next development of significance was that a on date which was not precisely established in evidence but thought by the police officers to have been in 2006, the loss adjuster Mark Dalrymple appeared in a television programme called “The Heist” which appeared to have been a documentary relating to art theft. During this documentary it would seem that Mark Dalrymple disclosed that there was frequently police involvement, or at least knowledge, of negotiations conducted by loss adjusters involved with third parties in attempts to recover art work which had been stolen. After the screening of this documentary the police evidence was that their contact with “Mr Brown” ceased.

[10] The police were anxious to attempt to restore communications with “Mr Brown”. To that end a tactic they adopted was to attempt to bolster or enhance the credibility of the “legend” they had created for the undercover agent John Craig. The police officers Mr Copeland and Mr Dalgleish who succeeded Mr McAdam following his retiral as the senior office on the case, decided to modify John Craig’s “legend” by representing that he no longer worked on behalf of Tyler & Co the loss adjusters but was working directly for the Duke. To further that purpose a number of documents were created to support this “legend”. These comprised, first, a letter purporting to come from the Earl of Dalkeith and addressed to Mark Dalrymple and purporting to be dated 31 July 2006 and a response thereto purportedly dated 4 August 2006. These letters were in fact created in May 2007. They are produced and comprised Nos 6/3 and 6/4 of Process. The tenor of these letters was that it would be possible for a deal to be bartered between the Duke of Buccleuch and those holding the painting without involvement of the underwriters.

Second, there was also produced at this time an open letter written on the Earl of Dalkeith’s notepaper addressed “to whom it may concern” purporting to come from the Earl and granting authority to Mr John Craig to act as his agent in the recovery of the painting. This letter is produced and comprises No 6/7 of Process. The circumstances of the creation of this document are as follows. Mr Copeland determined that it would assist his operation if John Craig could purport to be acting directly as the Duke of Buccleuch’s agent. To that end he conceived the idea of a letter of authority. He drafted the form of the document which comprises No 6/7 of Process and at that stage

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discussed the matter with the defender. Mr Copeland said that, without going into all the details of the operation, he requested the defender’s cooperation to the extent of signing the letter and thereby purporting to grant authority to the undercover police officer. This evidence coincided with the defender’s evidence. Both Mr Copeland and the defender were at one that the wording of the document No 6/7 of Process was Mr Copeland’s. The defender had no input into the drafting of the document and made no suggestions, or alterations to, the draft presented to him. At the time when these arrangements were put in place the defender was on business on the Island of Arran. From there he planned to travel by air to London and to accommodate this it was agreed that he would meet Mr Copeland at Glasgow Airport where he would sign the document which Mr Copeland would have prepared. Mr Copeland in fact took a draft of the document which he had prepared to the defender’s secretary at his office on the estate where that person put the draft onto the defender’s headed notepaper. Mr Copeland then took the completed document to Glasgow Airport where it was signed by the defender.

[11] It was after police contact with Mr Brown had ceased and after John Craig’s “legend” had been modified in the way described that the pursuer became involved. In 2007 the pursuer practised as a solicitor using the trading name “Marshalls” from premises in Upholland, Lancashire. By letter dated 10 August 2007 written on headed notepaper of the business Marshalls, the pursuer wrote to Mark Dalrymple purporting to act on behalf of unnamed clients “who can assist in the recovery of the Da Vinci painting ‘Madonna of the Yarnwinder’ (The Lansdowne Madonna) which was stolen from Drumlanrig Castle on 27 August 2003”. The letter went on to represent that, “Our concern is to negotiate the safe repatriation of the painting and negotiate the reward/finder’s fee on behalf of our clients.” It was further represented that safe delivery of the painting could be effected within a 72-hour time frame.

This letter was produced and comprises No 6/20 of Process.

[12] Mark Dalrymple contacted the police on receipt of this letter.

Thereafter contact was made between the undercover officer John Craig and the pursuer. There were various communings between these persons, the details of which were not the subject of evidence. As a result of these communings, an arrangement was made between John Craig and the pursuer whereby it was agreed that the painting would be handed over to John Craig and in return certain payments totalling £4.25 million would be effected. To that end a meeting between those persons and a number of others was arranged to take place in the offices of HBJ Gateley Wareing, solicitors in Glasgow on 4 October 2007. At that meeting a painting was handed to John Craig. Shortly thereafter other police officers entered the premises and arrested the pursuer and a number of other persons. Until the point of his arrest the pursuer was proceeding in the belief that John Craig was a loss adjuster and, further, acting as the agent of the defender.

[13] The narrative of the facts which I have summarised was not the subject of challenge at cross-examination. As I have already indicated, no evidence was adduced by the pursuer. In these circumstances I was able to proceed on the basis of the uncontested factual background I have rehearsed.

[14] The pursuer’s case is based upon the proposition that there was an express contract of agency between the defender and John Craig in terms of which Mr Craig was authorised to negotiate the recovery of the painting on behalf of the defender. The pursuer’s averments in support of this case are in the following terms. In art.16 of condescendence it is averred:

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“On 29 August 2007, a telephone discussion took place between the pursuer and John Craig regarding return of the painting. An initial figure of two million pounds was agreed to secure the return of the painting and once this figure was agreed a date for the return of the painting was fixed for the first week in October in order to accommodate the requirements of the defender’s agent John Craig. As a result of further discussions between the pursuer and John Craig, it was agreed that the total sum to be paid by the defender for return of the painting would be £4,250,000.

During all of those discussions, John Craig represented to the pursuer that he was acting as the defender’s agent and that he had the defender’s authority to enter into a legally binding agreement on his behalf.”

In art.15 of condescendence it is further averred, “John Craig was an undercover police officer under explanation that, in addition, the defender had expressly authorised John Craig to act on his behalf.”

Finally, in art.6 of condescendence it is averred: “In particular, the defender provided a written letter of authority confirming that John Craig acted as his agent in the recovery of the painting and expressly authorising John Craig to conduct any lawful negotiations or transactions in relation to this matter.”

The letter referred to in art.10 of condescendence is said to be produced and founded upon for its terms. That letter is No 6/7 of Process to which I have already referred.

[15] On the basis of the foregoing the pursuer’s case is plainly one of an agent acting with the express and actual authority of his principal.

[16] Against this factual background the submission for the defender was that the essentials for the creation of a principal and agent relationship were as stated by Diplock LJ (as he then was) in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd at p.502. In that passage Diplock LJ stated the law as follows: “It is necessary at the outset to distinguish between an ‘actual’ authority of an agent on the one hand, and an ‘apparent’ or ‘ostensible’ authority on the other. Actual authority and apparent authority are quite independent of one another. Generally they co-exist and coincide, but either may exist without the other and their respective scopes may be different. As I shall endeavour to show, it is upon the apparent authority of the agent that the contractor normally relies in the ordinary course of business when entering into contract. An ‘actual’ authority is a legal arrangement between principal and agent created by a consensual agreement to which they alone are parties. Its scope is to be ascertained by applying ordinary principles of construction of contract. . . .”

[17] In the present case it was submitted the pursuer’s position was entirely periled upon the existence of an actual authority. No other case was pled.

Applying the facts as disclosed in the evidence it could not be said that there was any actual authority. The defender was not, as a matter of fact spoken to by witnesses and unchallenged in cross-examination, aware of the undercover operation at its commencement and only became aware of its existence when he was asked to provide assistance in relation to the bolstering of the undercover agent’s “legend” sometime in the earlier part of 2007. Whilst documents to that end were produced, and, most relevantly a document was produced which on its face appeared to evidence a relationship of principal and agent between the defender and John Craig, these documents did not, on the facts, represent

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consensus between the defender and John Craig to the creation of a relationship of agency. On the contrary, these documents were, as all the witnesses stated, no more than a sham or a pretence designed to support a police operation attempting to recover the stolen painting. Throughout all the events with which this action is concerned the person known as John Craig was a police officer acting on the instructions of his superior officers. Similarly the defender was not acting on his own behalf but was acting as a willing assistant in a police scheme aimed at the recovery of the painting. In these circumstances the defender’s position was, quite simply, that there was no evidential basis for the case the pursuer had pled.

[18] The pursuer’s position was set forth in a written submission, which he supplemented by a number of assertions which were not, as a matter of fact, spoken to in evidence. No objection was taken to the assertions by senior counsel for the defender. The assertions were, essentially, that the pursuer had not been convicted of any crime in relation to his dealings with the painting.

He had acted throughout as an honest intermediary or broker seeking only to achieve the return of the painting to its lawful owner, the defender. Beyond these general assertions the pursuer’s position was that he wished to rely upon a written submission which he submitted and invited me to read. I have read the submission. The pursuer’s written submission was lengthy and detailed.

The submissions were made available prior to the leading of evidence at the preliminary proof and had been lodged with supporting documentation before the proof commenced. In the written submission it was accepted that the pursuer’s case rested entirely on an actual authority existing between the individual known as John Craig and the defender. As it is stated in para.18 of the submission: “The pursuer’s case is that the defender authorised John Craig to act as his agent. John Craig acted with actual authority and entered into an enforceable contractual agreement with the pursuer.”

Beyond that proposition there was a lengthy discussion on various aspects of the law of agency, very little which appeared to have a direct relation to the facts as established in the evidence. In particular the submission did not address the central point of how a case of express or actual authority could be maintained in a position where the unchallenged evidence of all witnesses was that no such contract existed. The written submission entirely failed to address the issue of how an express contract of the sort narrated in the pleadings could exist where all the evidence available to the court was to an entirely contrary effect.

[19] In my opinion the submissions made by senior counsel for the defender were correct. The only case pled by the pursuer was that there was actual authority granted by the defender to John Craig in terms of the letter No 6/7 of Process. That position, the pursuer’s only case, was entirely inconsistent with the evidence I heard in this case.That evidence was clear and, significantly, entirely unchallenged by the pursuer. On the basis of that evidence there was no consensual agreement between the person known as John Craig and the defender of the type desiderated by the pursuer. On the contrary the arrangements were no more than a scheme designed and controlled by the police in an attempt to obtain the return of the stolen property. The test for the creation of authority between a principal and his agent as set forth by Diplock LJ in Freeman & Lockyer was not met. In these circumstances I consider that the question posed for preliminary proof before answer in the

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interlocutor of 11 November 2014 falls to be answered in the negative. In the result I will uphold the defender’s second plea-in-law and assoilzie him from the conclusions of the summons.

For the pursuer: Party.

For the defender: Young QC, instructed by Anderson Strathern LLP, Solicitors, Edinburgh.

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A COURT OF SESSION

30 June 2015

Inner House (Extra Division) Lady Paton, Lady Smith and Lord Bracadale NICOLA BROWN EDNA BOOTH

Appellents

B

against SCOTTISH MINISTERS

Respondents

Town and country planning—Electricity substation—Permission refused—Appeal and remit to reporter—Reporter granting permission without holding oral hearing—Whether procedure unfair Regulation 9 of the Town and Country Planning (Appeals) (Scotland) Regulations 2013 (SSI 2013/156) provides, inter alia: “Decision as to further procedure (4) The procedures are— (a) by means of written submissions; (b) by the holding of one or more hearing sessions; (c) by the holding of one or more inquiry sessions; (d) by means of an inspection of the land to which the appeal relates.”

C

D Planning permission was granted for an offshore wind farm and further permission was sought for the construction of two electricity substations, a corridor for electricity cables and the associated and ancillary works so as to achieve the effective export of electricity from the windfarm to the National Grid. The local authority refused permission and the applicant appealed. The respondents appointed a reporter to determine the appeal. The reporter granted permission. The appellants, local residents who had objected to the application, appealed to the Court of Session. The reporter did not hold an oral hearing before deciding the appeal but decided it by holding a site inspection and written submissions.

The appellants raised three issues as follows: (1) whether the procedure adopted by the reporter was unfair in respect that he did not hold an oral hearing? (2) whether the reporter acted irrationally in his assessment of the likely visual impact of the proposed development, thus rendering his decision ultra vires? and (3) whether the reporter failed to carry out an environmental assessment which complied with art.3 of Council Directive 2011/92/EU of 13 December 2011 (the EIA Directive)?

The site had previously been used as a landfill site including for the disposal of asbestos and people in the local area were concerned that disturbance of the site would cause harmful dust or gas to be released into the atmosphere. The site had been assessed an as being of “very low” risk. The reporter considered the written submissions and information given in response to requests for information which he made and decided he did not need to hold an oral hearing.

Held (1) that nothing advanced on behalf of the appellants pointed to its being likely that relevant information would have been obtained that was not already before the reporter, that the appellants were able to and did participate by way of written representations and the procedure adopted by the reporter had been a fair one (paras 24, 25, 27); and

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(2) that when the reporter’s careful and detailed reasoning on the issue of visual impact was read as a whole it could be seen that there was no lack of logic in his ultimate judgment and the reporter did not fail in his duties in relation to environmental impact assessment and the appellant’s formulaic approach was not appropriate (paras 31, 42); and appeal refused.

Cases referred to:

B

C

D

City of Edinburgh Council v Secretary of State for Scotland, 1998 S.C. (H.L.) 33; 1998 S.L.T. 120 Commission v Ireland, Case C-50/09 [2011 E.C.R. I-873 County Properties Ltd v Scottish Ministers, 2002 S.C. 79; 2001 S.L.T. 1125 Lough v First Secretary of State [2004] EWCA Civ 905; [2004] 1 W.L.R. 2557 Moray Council v The Scottish Ministers [2006] CSIH 41; (I.H.) 2007 S.C.L.R. 55; 2006 S.C. 691 Ortenberg v Austria [1994] ECHR 42; (1994) 19 E.H.R.R. 524 R (Osborn) v Parole Board [2013] UKSC 61; [2014] A.C. 1115; [2013] 3 W.L.R. 1020; [2014] 1 All E.R. 369 Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 W.L.R. 153; [1991] 2 All E.R. 10 Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 W.L.R. 759; [1995] 2 All E.R. 636 Walton v Scottish Ministers [2011] CSOH 131; (O.H.) 2011 S.C.L.R. 686.

The full circumstances of the case and the arguments of Council are to be found in the following opinion of the court which was delivered by Lady Smith on 30 June 2015.

LADY SMITH Introduction

E

[1] An offshore wind farm will be of no benefit if there are no means of transmitting the electricity it produces, to the national grid. Accordingly, planning consent having been granted for such a wind farm off the coast near Aberdeen, permission was sought for the construction of two electricity substations, a corridor for electricity cables and various associated and ancillary works so as to achieve the effective export of electricity from the wind farm onshore and onwards to the national grid.

[2] The local authority refused permission on 22 November 2013 and the developer appealed to the respondents on 9 January 2014. The respondents appointed a reporter to determine the appeal. He commenced his task in February 2014. By decision dated 23 July 2014, he allowed the appeal and granted planning permission subject to conditions.

F The issues

[3] The appellants raise three issues:

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(i) Whether the procedure adopted by the reporter was unfair in respect that he did not hold an oral hearing? (ii) Whether the reporter acted irrationally in his assessment of the likely visual impact of the proposed development, thus rendering his decision ultra vires?

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(iii) Whether the reporter failed to carry out an environmental assessment which complied with art.3 of Council Directive 2011/92/EU of 13 December 2011 (the EIA directive)?

A

They say that, in the event of any of these questions being answered in the affirmative, then the reporter’s decision falls to be reduced.

Background

B

The site

[4] The substation site is in an unused area of rough grassland and lies in a shallow valley to the south east of a small village called Blackdog, about two miles north of Aberdeen. The appellants live a little distance away, in houses that lie to the north-west of it. They object to this development.

[5] The local development plan statement for Blackdog identifies an area referred to as M1 and allocates it for development for up to 600 houses, a school, associated facilities and employment land. The substation site and part of the cable corridor lie within M1, on its southern side.

[6] The site is also in an area which, historically, was used for landfill including the post-war deposit of rubble from bomb-damaged properties in Aberdeen. The former Strabathie landfill site is in the immediate vicinity of Blackdog and was, between 1981 and 1983, licensed for the receipt of inert waste and waste from the construction industry including asbestos waste.

[7] The prior use of Strabathie for the deposition of waste, including asbestos, is well known in the locality and the possibility of disturbance of it and/or other former landfill areas causing harmful dust and/or gases to be introduced into the atmosphere has given rise to one of the main concerns raised by local objectors including the appellants.

[8] The Strabathie site has been the subject of repeated investigation by the local authority’s Environmental Health Service, since 2002. No significant contamination has been found, excepting the presence of asbestos; the findings were not, however, such as to prevent the granting of planning permission for residential development on the Strabathie landfill site in both 2004 and 2005.

[9] In 2006, a study of landfill sites in the area afforded the Strabathie site a risk rating of “very low”.

[10] Site investigations were carried out in relation to the present application by independent professional consultants (SLR Consulting) as part of a detailed environmental study instructed by the developer. They were carried out across the site and involved 21 boreholes and 15 trial pits. SLR reported their findings in a substantial and detailed environmental statement. Appendix 6(e) to the environmental statement, containing some 230 pages, gave details of the onshore investigations. The local authority’s scientific officer, Anne Coles, having had regard to all of these studies, concluded that there was no gross contamination and that they were indicative of the risk of development of the site giving rise to contamination being relatively low. Analysis of soil samples for contamination across the range of relevant contaminants found contamination levels to be below the assessment criteria for a risk to human health and the local authority’s environmental health service expressed itself entirely satisfied with the scope of the laboratory analysis that was carried out.

Ms Coles concluded: “This Service is of the opinion that, provided a suitable gas protection system is installed in the site buildings and a suitable methodology employed to prevent asbestos remaining exposed on the site surface following

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completion of the works, the application is suitable for the proposed new use and will not impact significantly on the wider environment. Further, following redevelopment the site will not be capable of being determined as contaminated land under Part IIA of the Environment Protection Act 1990.”

Specifically regarding asbestos assessment, asbestos was found within the soils at three of 60 locations investigated. Ms Coles considered that, bearing in mind that it was not possible to examine all soils and subsoils prior to the commencement of the work proposed, further investigative sampling and analysis would not be useful; rather the focus should be on identifying the appropriate methodology for soil screening and other procedures for dealing with asbestos if found during that part of the works involving soil disturbance.

The reporter’s considerations: procedure

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[11] Paragraphs 7 and 9 of the Town and Country Planning (Appeals) (Scotland) Regulations 2013, [SSI] 2013/156 applied. The reporter had a discretion. He could determine the appeal without any further representations (para.7) or by means of one or more of the procedures listed in para.9(4), namely: [His Lordship quoted the para. as set out above and continued:] Where a reporter decides to hold a hearing session, Sched.1 para.5 applies. It provides for the procedure at the hearing session to be as the reporter determines but subject to para.5(5) which requires that the hearing take the form of “a discussion led by the appointed person and cross-examination is not permitted”. Clearly, it is not envisaged that a hearing session will provide an opportunity for witnesses to be led in evidence and cross-examined.

[12] In this appeal, the reporter decided to proceed by means of carrying out a site inspection (on 1 May 2014) and written submissions. The appellants and other residents of Blackdog wanted him to hold a hearing and representations about that were made to him on their behalf but he decided not to do so.

[13] The circumstances founded on by the residents when seeking a hearing were that they unanimously opposed the application and had always done so, that they feared that the development was unsafe because the site was on the old Strabathie landfill, that White Young Green (WYG), experts instructed by another objector (Trump International Golf Links), questioned whether investigation of the site had established that the residents’ fears were unfounded, that the local community council supported the residents’ opposition and that the local council had held oral hearings at which evidence about the safety of the site was presented and the outcome was that they supported the residents’ objections.

[14] The reporter considered the requests for an oral hearing but decided that he did not require to hold one; he considered that he was able to gather all the information he required from the appeal papers, from his site inspection, and from written submissions, some of which were responses to specific points raised by him. For example, by a procedure notice dated 22 May 2014, he specifically asked the developer, Ms Coles and Mr John Campbell QC—acting for Trump International Golf Links—to provide information on three matters including Ms Coles’ views on an updated ground investigation report dated October 2013 and its adequacy in the light of the report by WYG, and her comments in response to it having been reported that the Strabathie landfill site was a potential source of carbon dioxide. Ms Coles responded by providing

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a detailed report dated 11 June 2014 and WYG responded to that report with detailed observations in a report dated 17 June 2014.

A

The reporter’s considerations: appeal decision notice Visual impact

[15] There are two other houses situated close to the boundaries of the overall site, Hareburn House (close to the north eastern corner of the site) and Ceol Na Mara (close to the north western corner of the site).

[16] In his written reasons, the reporter noted that the development would be very prominent when seen from Hareburn House and, from Ceol Na Mara, there would be a prominent view of the buildings. For the occupants of those houses, the impact would, he considered, be “large and adverse” (para.23). At para.24, he continues: “However, in none of these cases do I judge that the visual impact would be unacceptable. The proposed buildings would not be of a scale or character that would result in an overbearing visual impact, particularly as they would be located on the lowest part of the site. As already referred to, they are in the nature of modern industrial buildings, common in urban and semi-urban areas, where many residents have views of them. In essence the situation is no different here. Whilst the change from the current appearance of the site to the proposed development would clearly be a major one as far as the residents affected are concerned, it would not be of a nature that would be considered out of the ordinary in general circumstances. It is not the function of the planning system to protect views from private properties.”

The houses referred to in paras 23 and 24 do not include those in which the appellants reside.

[17] The reporter then discusses various steps that can be taken to ameliorate the visual impact through landscaping and planting schemes (paras 25–28), the wider visual impact on properties further afield (paras 26–29) and concludes that the development would not have an unacceptable visual impact even from those houses closest to the site, notwithstanding that a small number of houses would experience some loss of amenity. Thereafter, he considers the cumulative visual impact of the offshore wind farm together with this proposed onshore development and concludes that the overall effect of adding the development to the visual impact likely to be created by the offshore turbines will, for the most part, be slight (paras 32–35).

B

C

D

E

Disturbance of contaminated land

[18] It is clear from the reporter’s written reasons that he was well aware of the nature and extent of local anxiety about what might occur if contaminated land were to be disturbed in the course of the development works. He discusses the possible effects of disturbing contaminated land in considerable detail, over seven pages of his report, between paras 60 and 84. In doing so, he refers to the landfill history of the site and the earlier investigations. He refers to details drawn from SLR’s environmental statement, the WYG reports, Ms Coles’ report, SEPA’s report and from other documents before him including written submissions which, in turn, included submissions lodged by the objectors. He draws his own conclusions. In particular, he concludes that he finds no reason to dismiss Ms Coles’ view that the earlier investigations were indicative of there being a relatively low risk of contamination arising from

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development of the site, and that that conclusion is being fortified by the fact that the more recent investigations carried out on the instructions of the developer had not revealed any gross contamination. Regarding asbestos, he concludes that the evidence does not show that the risk of exposing the wider community to asbestos fibres would be unacceptable, provided the appropriate precautions are taken such as air monitoring and soil dampening during the works and steps being taken to see that no asbestos is left exposed when they come to an end. The reporter was given no reason to suppose that these well-known precautions would not be taken in the case of this development.

[19] The reporter demonstrates a clear awareness of WYG’s view being that the investigations carried out were not sufficient for the proper determination of risk and he ultimately provides for further risk assessment by attaching the appropriate condition to the planning consent. We refer, in particular, to the summary of his conclusions on this matter, at paras 83 and 84: “In the circumstances, I consider that the purpose of the ground investigations that have been carried out has been to try to identify the likely risks associated with developing the site, so that appropriate measures can be taken to mitigate them. The position expressed in the reports prepared for the Trump Organisation is that the work carried out so far is insufficient to determine the extent of those risks. On the other hand, the council’s Scientific Officer does not consider that further investigations would assist in this respect, as it is not possible to test the whole site and the evidence found so far indicates a low risk of contamination. In addition the appellant’s submissions are that, according to the Association of Geotechnical and Geoenvironmental Specialists’ Guidelines for Good Practice in Site Investigation, the objective of the site investigation is to characterise the ground conditions sufficiently to allow safe and economic designs to be developed and to reduce as far as possible, the occurrence and impact of unforeseen conditions. In this context it is submitted that the site investigation and reporting are fit for purpose, reasonable and based on a robust assessment of risk. The differences between the parties in relation to the adequacy of the site investigations are essentially about methodology.

For this reason, I considered that further testing of the respective positions through an oral procedure, either an inquiry or hearing, would not have helped me in reaching a decision on this question. Rather it is a matter of judgment as to the weight to be given to the evidence of the parties. In this case the council is the statutory authority responsible for the oversight of contaminated land. The evidence submitted by its Environmental Health services demonstrates a clear understanding of the issues involved, and I consider that significant weight can be given to it.

84. I acknowledge that some uncertainties remain, but consider that it would be an unreasonable requirement to insist that all such uncertainties are removed before planning permission is granted. Rather there should be adequate contingency measures in place to deal with any contamination encountered during construction of the development. As part of these, more detailed soil sampling within the parts of the site affected by development would help to reduce the degree of uncertainty and identify any contamination “hotspots” that might require treatment. One of the council’s suggested conditions requires the provision of a remedial scheme where the need is identified by the site investigation report. I consider that a more focused investigation as referred to above would be the appropriate course of action, and I have imposed a condition to this effect.”

The condition to which he refers is condition 1 to the planning consent; a further measure of control arises in respect that it provides that, once the

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303

further investigations described have been carried out, a report must be submitted to the local authority for their approval.

A

Determination of the issues in this appeal Oral hearing

[20] It was not disputed that the reporter had a discretion when it came to the question of whether or not to have an oral procedure. Nor was it disputed that, in the course of the procedure that he did adopt, the appellants were afforded the opportunity to engage fully in the written submission procedures. Further, parties agreed that, the issue of the fairness of the procedure having been raised in this ground of appeal, it was for the court to assess the procedure as a whole and determine whether, overall, it was a fair one. Whilst at one point, senior counsel for the appellants, Mr Campbell QC, suggested that an aspect of unfairness was that the reporter did not ask himself whether the procedure he was adopting was a fair one, the point was not pressed and it would not, in any event, accord with the clear statement of the law in an authority on which he relied (R (Osborn) v Parole Board, Lord Reed at para.65) that it is for the court—not the decision maker—to decide whether or not there has been a fair procedure, the court’s function not being limited to reviewing the reasonableness of the decision-maker’s judgment of what fairness required. If the decision-maker judges his own procedure to be fair, that does not make it fair. Equally, if he does not address that issue, it does not make the procedure unfair. The question remains whether, viewing matters objectively, there has, in all the circumstances, been a fair procedure.

[21] As presented in the note of argument, the appellants’ submission included a separate case that the failure to hold an oral hearing was a breach of art.6 ECHR. They did so in circumstances where the only potentially relevant averment they make is that they each live within two or three minutes’ walk of the site (art.4). They do not, for instance, present a case of likely effect on their pecuniary rights such as might engage art.1 of Protocol no.1 ECHR (see, eg, Ortenberg v Austria). They do not aver any loss of amenity to their properties and the reporter did not make any finding to the effect that they would suffer a loss of amenity such as would engage art.8 (cf. Walton v Scottish Ministers, para.110). Mr Campbell asserted, in oral submission, that this was a case of loss of amenity but that was not expanded on and not every loss of amenity will engage art.8 (Lough v First Secretary of State, Pill LJ at para.43).

In these circumstances, an issue arose as to whether the reporter’s decision in fact involved a determination of any civil right of the appellants at all; if it did not, then art.6 was not engaged. The Dean of Faculty, for the respondents, contended that it was not. Ultimately, senior counsel for the appellants did not press the art.6 argument, accepting that it did not add anything to his case at common law. We consider that concession to be well made; even if art.6 had been engaged, which we doubt, we are readily satisfied that it would not have added anything to the common law which more than adequately identifies the applicable principles for the purposes of this case and we will, accordingly, confine our considerations to it.

[22] When considering whether there has been a fair procedure, it is obvious that the court must have regard to the whole circumstances (County Properties Ltd v Scottish Ministers, para.19). The weight to be given to each will, in turn, depend on the context. The nature of the issues, the nature and extent of disagreement between parties, the interests at stake, whether important facts are disputed, the nature and extent of parties’ participation by other means

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B

C

D

E

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G

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304 A

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E

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such as by written submission, the nature and extent of any written dialogue, and what could, if anything, have been achieved by the holding of an oral hearing are all likely to be relevant but they are equally likely to vary from case to case.

[23] The focus of senior counsel for the appellants’ submissions on this issue was their concern about the disturbance of contaminated land, particularly the potential disturbance of asbestos. It is, however, important to note that parties were in agreement about the landfill history of the site and that it had been determined that asbestos was present within it. There was no dispute about that. Insofar as parties were at issue, it was that the appellants, relying on the WYG reports, contended that insufficient information about the land conditions had been obtained whereas Ms Coles, whilst accepting that uncertainties remained, considered that sufficient investigation had been carried out and, further, was satisfied that the way to accommodate those uncertainties was to see to it that appropriate contingency measures were in place. The reporter referred to that as an issue which was, essentially, about methodology and, having considered the terms of Ms Coles’ and WYG’s reports, we can fully understand why, on the basis of that material, the reporter regarded it as such. Mr Campbell did not, however, accept that it was an accurate characterisation. Had he been able to point to any facts about the land conditions which the appellants would have brought to an oral hearing that had not been included in the written material already placed before the reporter, his criticism might have been well made. However, we can find nothing in the material before us to suggest that the appellants had information about the land to take to a hearing—whether by calling evidence or otherwise— which was not already in the documents and Mr Campbell’s contention was clearly to the effect that the appellants’ case at any hearing would have amounted to a repetition of their contention that there had not been enough investigation; more should have been carried out.The reporter’s characterisation was, in these circumstances, we consider, entirely correct.

[24] The appellants submitted that, in the circumstances there should have been a hearing session but we were left quite unclear as to what it was thought that an oral hearing would have achieved that would have been relevant.

Nothing advanced on behalf of the appellants pointed to it being likely that relevant information would have been obtained that was not already before the reporter. It would not have been a hearing for the purpose of the formal leading and cross-examination of witnesses (see: Sched.1, para.5(5) of the 2013 Regulations); in particular, it would not have been an opportunity for Ms Coles to be cross-examined which is what the appellants’ case seems, originally, to have envisaged although it ultimately seemed to be accepted that that would not in fact have been a legitimate use of a hearing session.

[25] Further, the appellants were able to and did participate by way of written representations; the residents of Blackdog submitted detailed written representations in which their case and the strength of their opposition to the application was made quite plain. And, as the Dean of Faculty observed, they have had the opportunity to scrutinise the decision letter and to bring this appeal.

[26] We would add that it is clear from the reporter’s written reasons that he gave serious consideration to the issue about the adequacy of investigations that was raised, had regard to the contentions on either side and addressed the uncertainties raised by imposing an appropriate condition. It did not need an oral hearing to bring it to his attention and alert him to the need to deal with it.

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305

[27] In all the circumstances, we are satisfied that the procedure adopted by the reporter was a fair one. He was not obliged to hold an oral hearing. This ground of appeal is, accordingly, not well founded.

A

The reporter’s considerations: visual impact

[28] It was not disputed that visual impact was a material issue which the reporter required to consider and determine. Nor was it disputed that it was a matter of planning judgment (Tesco Stores Ltd v Secretary of State for the Environment, Lord Hoffmann at p.780) and, therefore, could only be susceptible to challenge on Wednesbury grounds.

[29] The appellants’ contention was that the reporter’s written reasons showed that his assessment of visual impact was irrational. That was because it was illogical of him to state that the proposed buildings would not result in an overbearing or unacceptable visual impact or be considered out of the ordinary in general circumstances (at paras. 24, 30 and 33) when he also stated that for the occupants of Hareburn House and Ceol na Mara the impact would be large and adverse and would be a major significant effect (paras 23 and 24).

[30] However, in so contending, the appellants fail to read the reasoning on this matter fairly and as a whole (Save Britain’s Heritage v Number 1 Poultry Ltd at p.167) and fail to heed the previously articulated guidance that a reporter’s written reasons should not be subjected to detailed textual analysis (Moray Council v Scottish Ministers at para.28; City of Edinburgh Council v Secretary of State for Scotland at p.49C–F).

[31] Contrary to the appellants’ contention, we consider that when the reporter’s careful and detailed reasoning on this issue is read as a whole and in context, the reader can be assured that there is no lack of logic in his ultimate judgment. Far from shrinking from the adverse nature of the likely impact on the two houses identified, he addresses it and clearly explains why, none the less, in all the circumstances, he is satisfied that overall, the visual impact of the proposed development will be acceptable in planning terms.

Acceptability does not imply absence of all adverse consequences; that is not what the reporter is saying. It cannot be said that his judgment was flawed by illogicality on that basis which is what, ultimately, seemed to be the appellants’ contention.

B

C

D

E

The reporter’s considerations: environmental assessment

[32] The local planning authority had decided that the proposed development was not an “EIA development” for the purposes of the EIA Regulations (Town and Country Planning (Environmental Assessment) (Scotland) Regulations 2011) but the developer carried out and submitted an environmental statement thus making the application a proposed development to which the regulations applied (see para.5(1) and (2) of the 2011 Regulations).

[33] Although the appellants originally contended that the terms of the 2011 Regulations were such that the requirements of the EIA Directive had not been fully transposed into domestic law, it became apparent that that was not an issue which we required to determine; the Dean of Faculty accepted that if that was the case the EIA Directive applied directly and the substance of what the reporter did would still have to be judged by reference to its terms.

We agree. The issue we have, accordingly, to consider is whether or not the reporter’s approach to environmental impact assessment accorded with the requirements of the EIA Directive.

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A

[34] Recital (7) of the EIA Directive states: “Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. That assessment should be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the public likely to be concerned by the project in question.”

B

[35] Article 1 provides: “This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment.”

C

[36] Article 2 provides: “Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects.”

[37] Article 3 provides: “The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and, in accordance with Articles 4 to 12, the direct and indirect effects of a project on the following factors:

D

E

F

G

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(a) human beings, fauna and flora; (b) soil, water, air, climate and the landscape; (c) material assets and cultural heritage; (d) the interaction between the factors referred to in points(a), (b) and (c).”

The essential contention for the appellants was that under art.2 of the EIA Directive, the reporter was obliged to carry out the environmental assessment prescribed in art.3 and he had failed to do so. The respondents do not dispute that the reporter was obliged to do so. Where parties were at odds was as to the content of the obligation.

[38] Mr Campbell repeatedly referred to the reporter being obliged to carry out his own assessment. That had to be a full environmental impact assessment of the type carried out by experts instructed by developers. If that seemed cumbersome, expensive and likely to be productive of delay, that was irrelevant because that, he submitted, was what the EIA Directive said. He relied on Commission v Ireland as lending support to his submission but we note that the issues there were different; they concerned whether a national provision which only required a planning authority to take environmental information into consideration met the requirement for it to assess that information and whether Ireland, in wholly excluding demolition works from the scope of the relevant statutory provisions, had accurately transposed the EIA Directive. We do not read any part of the court’s considerations as indicating that the Directive requires the decision-maker to redo the ingathering of relevant information that has already been done. Rather, the court appears to have been at pains to stress the need for the decision-maker to assess the evidence presented.

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[39] We cannot accept that the terms of the EIA Directive or the case of Commission v Ireland provide any support for the somewhat startling proposition that the reporter has to start again and, blinkered to the work that has already been done by experts, carry out his own environmental impact investigations. We readily accept that he has a duty to assess the information detailed in any environmental statement or similar material placed before him but that is another matter and is really no different from his overall obligation to assess all the evidence.

[40] We turn then to whether or not the reporter did assess what would be the likely environmental impact of this development. Mr Campbell submitted that it was evident from his written reasons that he had failed to do so. He did not expressly state he had done so. He had only considered five main issues, as explained at para.4 of his reasons, and they did not include all the factors in the art.3 list. In particular, he said nothing about flora, air and climate and as to how all the factors detailed in art.3 interacted with one another.

[41] The Dean of Faculty submitted that there was no need for the reporter to state expressly that he had carried out an environmental impact assessment.

There was no need to address every item on the art.3 list. It was clear, from the whole terms of his reasons, that he had in fact addressed all the relevant environmental issues and assessed the relevant evidence.

[42] We are not persuaded that the reporter failed in his duties in relation to environmental impact assessment. The appellants’ formulaic approach is not, we consider, appropriate. The reporter did not require to state that he had assessed environmental impact; what mattered was whether he had done so and it is simply not tenable to suggest that his written reasons do not demonstrate that he took considerable care to assess all the information about the environmental factors that were relevant to this site, particularly the section in which he deals with the effect of disturbing contaminated land. We are not persuaded that he required to assess items on the art.3 list in respect of which no issue arose in relation to this site, such as flora. Article 3 acknowledges, in terms, that what is appropriate will vary according to each individual case; it would, for instance, be pointless to go through the exercise of assessing environmental impact in respect of human beings where the site of the proposed development is an uninhabited island.

A

Disposal

E

B

C

D

[43] For the above reasons, the appeal fails and we will, accordingly, pronounce an interlocutor refusing it.

For the appellants: Campbell QC, Pirie, instructed by Balfour & Manson LLP, Solicitors, Edinburgh.

For the respondents: Dean of Faculty, Barne, instructed by Office of the Advocate General, Edinburgh.

F

G

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A COURT OF SESSION

15 July 2015

Inner House (Second Division) Lord Justice Clerk (Carloway), Lord Malcolm and Lord McGhie B

JM SARA MATHIESON Curator ad Litem

Appellants

against LOCALITY REPORTER GLASGOW

C

Respondent

Parent and child—Children’s hearing—Appeal—Grounds of referral— Whether ill-treatment “wilful”—Whether necessary to prove awareness of likelihood of suffering—Children and Young Persons (Scotland) Act 1937 (c.37), s.12 The Prevention of Cruelty to and Protection of Children Act 1898 provided, inter alia: “Any person. . ., who, having the custody, control, or charge of a child. . .wilfully ill-treats, neglects, abandons, or exposes such child. . . in a manner likely to cause such child unnecessary suffering or injury to its health, shall be guilty of [an offence]. . .”

D

E

F

G

The Prevention of Cruelty to Children Act 1894 provides, inter alia: “If any person. . . wilfully assaults, ill-treats, neglects, abandons or exposes such child. . . in a manner likely to cause such child unnecessary suffering, or injury to its health. . . that person shall be guilty of an offence.”

The Children and Young Persons (Scotland) Act 1937 provides, inter alia: “12. Cruelty to persons under 16.

(1) Any person who. . .has parental responsibilities in relation to a child or has charge of a child. . .wilfully ill-treats, neglects, abandons, or exposes him. . ., in a manner likely to cause him unnecessary suffering or injury to health. . .that person shall be guilty of an offence. . . .”

In a children’s hearing the sheriff found that it was sufficient for ‘wilful’ illtreatment that the first appellant’s actions, in lifting each of infant twins in a particular manner with one hand had been deliberate and that this was likely to, and in fact did, cause the children unnecessary suffering and injury. He followed Clark v HM Advocate and held that the fact that a person did not intend to cause suffering or injury was irrelevant. The sheriff also indicated that he would have reached the same decision had he followed R v Sheppard, since the first appellant had either been aware that his actions would cause unnecessary suffering or injury, or did not care one way or the other whether they did. The sheriff had determined that grounds under s.67(2) of the Children’s Hearings (Scotland) Act 2011 had been established in relation to four children, two of whom were twins aged one year at the date of the proof.

They had sustained numerous fractures to the ribs which were found to have been caused by inflicted injury involving a significant degree of force or pressure. This had been caused by the first appellant lifting each of them using one hand.

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The first appellant appealed and the sheriff posed the following questions after amendment. (2) Did I err in law in holding that it is unnecessary to prove awareness of, or recklessness as to, the likelihood of causing suffering to a child in order to find established an offence of wilful ill-treatment under s.12 of the Children and Young Persons (Scotland) Act 1937?; (3) and (4) in the event that the answer to question 2 is in the affirmative, was I entitled on the facts found to infer that the first appellant was aware that his actions in lifting the twins were likely to cause the twins unnecessary suffering or injury to health or unaware due to his not caring whether this was the case as opposed to his stupidity or ignorance?

The first appellant accepted that the fractures had to be due to his handling of the children in the absence of any other explanation. There was evidence from doctors that the rib fractures were likely to have been inflicted and that major forces were required.

Counsel for the first appellant submitted that the offence of wilful illtreatment under s.12 of the 1937 Act required proof that the perpetrator had been either aware that his actions would cause unnecessary suffering or injury to health or had been unaware on account of his recklessness. The necessary mens rea required an intention to commit the whole of the act as so defined or recklessness. Neither Clark nor Sheppard were directly in point because both related to neglect by all mission rather than ill-treatment by a positive act.

Counsel for the respondent submitted that the issue was primarily one of the proper construction of the ‘gateways’ to the Children’s Hearing system.

There were two gateways: first, s.12 of the 1937 Act and second, lack of parental care in terms of s.67(2)(a) of the 2011 Act. The gateways placed the children within the jurisdiction of the children’s hearing but did not dictate a particular outcome.

As far as wilful ill-treatment was concerned, it was not appropriate to substitute other language for the significant terms “ill-treats. . .him” and the ill-treatment had to be likely to cause unnecessary suffering or injury to health.

No offence was committed in the absence of a likelihood of injury, but where there was such a likelihood, no intention to injure or awareness of risk was required. The case was not about the lifting of a child but what about the compressing of a child with sufficient force to cause serious injuries.

Held (1) that the character or quality of conduct which would constitute illtreatment was a matter to be determined objectively, and the addition of the term ‘wilful’ did not import a subjective element to that assessment and the proper threshold of criminal liability was fixed also by reference to the likelihood of sufficiently grave consequences arising from deliberate or voluntary action or inaction, and the term “wilful” necessarily served to exclude accidental or inadvertent conduct, as opposed to the accidental or inadvertent consequences of deliberate conduct from the scope of the offence (para.51); and (2) that the sheriff had correctly applied the law and was entitled to hold the offence established (para.53); and appeal refused.

A

B

C

D

E

Cases referred to: Byrne v HM Advocate, 2000 S.C.C.R. 77; 2000 J.C. 155; 2000 S.L.T. 233 Clark v HM Advocatei, 1968 J.C. 53; 1969 S.L.T. 161 Dunn v McDonald, 2013 S.L.T. (Sh Ct) 34 F B v Procurator Fiscal, Aberdeen, 2014 S.C.C.R. 530 H v Harkness, 1998 S.C. 287; 1998 S.L.T. 1431 H v Lees; D v Orr, 1993 J.C. 238; 1994 S.L.T. 908 HM Advocate v Harris, 1993 J.C. 150; 1993 S.L.T. 963 Kennedy v S, 1986 S.C. 43; 1986 S.L.T. 679 Kinnison (1870) 1 Coup. 457 Lord Advocates Reference (No.2 of 1992), 1992 S.C.C.R. 960; 1993 J.C. 43; 1993 S.L.T. 460

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2016 S.C.L.R.

M v Kennedy, (I.H.) 1991 S.C.L.R. 898; 1993 S.L.T. 431 M v McGregor, 1982 S.L.T. 41 M v McClafferty [2008] Fam. L.R. 22 O v Rae, (I.H.) 1992 S.C.L.R. 318; 1993 S.L.T. 570 R v Senior [1899] 1 Q.B. 283 R v Sheppard [1981] A.C. 394; [1980] 3 W.L.R. 960; [1980] 3 All E.R. 899 R v Williams, (1910) 4 Cr. App. R. 89 Ross v HM Advocate, 1991 S.C.C.R. 823; 1991 J.C. 210; 1991 S.L.T. 564 S v Authority Reporter, 2012 S.L.T. (Sh Ct) 89 S v Locality Reporter Manager [2014] CSIH 70; [2014] Fam. L.R. 109.

The full circumstances of the case and the arguments of counsel are to be found in the following opinion of the court which was delivered by the Lord Justice Clerk on 15 July 2015.

LORD JUSTICE CLERK

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Introduction

[1] The main issue in this appeal is whether the sheriff was correct to find grounds for the referral of children established, by reason of “wilful” illtreatment by their father, the first appellant, in terms of s.12 of the Children and Young Persons (Scotland) Act 1937. The sheriff held that it was sufficient that the first appellant’s actions, in lifting each of the infant twins in a particular manner with one hand, had been deliberate and that this was likely to, and in fact did, cause the children unnecessary suffering and injury. The sheriff followed Clark v HM Advocate, in which the High Court of Justiciary determined that the fact that a person did not intend to cause suffering or injury was irrelevant. The first appellant, founding upon dicta from the House of Lords in R v Sheppard, maintained that such intention, or alternatively recklessness, was required. The sheriff added that he would have reached the same decision had he followed R v Sheppard, since the first appellant had either been aware that his actions would cause unnecessary suffering or injury or did not care one way or the other whether they did.

[2] A related dilemma arises. When a person is convicted of having committed an offence under s.12 of the 1937 Act, the court may (Criminal Procedure (Scotland) Act 1995, s.48) refer the relevant child or children to the principal reporter. In so doing, it may “certify that the offence shall be a ground established for the purposes of the Children’s Hearings (Scotland) Act 2011”. No criminal conviction arises in this case. However, where there is a conviction based upon Clark, which the criminal courts must undoubtedly follow, the grounds may be certified as established. If there is no conviction, if the civil courts do not follow Clark, there is a distinct prospect that grounds, proceeding on identical proven facts, will be held not be established.

The grounds of referral

[3] On 1 August 2014, the sheriff at Glasgow determined that grounds under s.67(2) of the Children’s Hearings (Scotland) Act 2011 had been established in respect of the first appellant’s four children. They were established in relation to each of the twins because the twins were: “(a). . .likely to suffer unnecessarily. . .due to a lack of parental care” and “(b) a Sched.1 offence [had] been committed.” The Sched.1 offence was the wilful ill-treatment of the twins under s.12 of the 1937 Act. The establishment of the grounds in respect of the two older children were consequential upon the findings in respect of the twins (2011 Act, s.67(2)(d)).

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[4] The twins, who were aged one year at the date of the proof, had sustained numerous fractures to their ribs. The boy had six and the girl had nine. The fractures were found to have been caused by inflicted injury “involving a significant degree of force or pressure”, caused by the first appellant lifting each of them using one hand; something which he did frequently. The sheriff found in fact that: “(27) Inflicted injury, involving a significant degree of force or pressure, was the cause of the rib fractures to both (A) and (M).

(28) (The first appellant) frequently lifted (A) and (M) using only one hand.

(29) He lifted each of them in this manner intentionally and deliberately and in doing so wilfully ill-treated both (A) and (M) (30) (The first appellant’s) lifting and carrying of (A) and (M) was likely to, and in fact caused them unnecessary suffering and injury to their health.

(31) The rib fractures to (A) and (M) were caused by (the first appellant) lifting each of them using one hand ...

(36) In May 2014, (the first appellant) carried two of his children at the same time, using only one hand for each. He was challenged by a support worker about carrying his children in this way.”

A

B

C

[5] The case was remitted by the sheriff to the principal reporter to make arrangements for a children’s hearing to determine whether compulsory supervision requirements ought to be made. Both parents appealed to this court (2011 Act, s.163(1)(a)(i)), although the mother no longer insists in her appeal, apparently because of a lack of legal aid.

D The questions of law and the evidence

[6] Twelve questions of law were formulated in the original stated case. Five are no longer insisted upon (viz. question 1 for the respondent, and questions 9–12 for the third appellant). The remaining questions, as reformulated of consent at the commencement of the hearing, were: “(2) Did I err in law in holding that it is unnecessary to prove awareness of, or recklessness as to, the likelihood of causing suffering to a child in order to find established an offence of wilful ill-treatment under s.2 of the Children and Young Persons (Scotland) Act 1937?

(3) and (4) In the event that the answer to question 2 is in the affirmative, was I entitled on the facts found to infer that (the first appellant) was aware that his actions in lifting (A) and (M) were likely to cause (A) and (M) unnecessary suffering or injury to health or unaware due to his not caring whether this was the case, as opposed to his stupidity or ignorance?”

In addition, the court was asked whether, as a generality, the sheriff had been correct to find grounds based on lack of parental care established in terms of s.67(2)(a) of the 2011 Act (questions 5 and 6).

[7] The sheriff made certain observations on the rib fractures. He noted (at para.24) that the first appellant had “accepted that these fractures had to be due to his handling of the children in the absence of any other explanation”.

He described the first appellant’s practice of picking up either of the twins using only one hand as follows: “[24] . . .He described picking up (A) from his bouncy chair. On this, (A) lay flat and was secured by straps round his waist, meeting at the front where they clipped together along with a strap travelling upwards from

5183.indd 311

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312 A

B

C

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between (A’s) legs. (He) described holding (M) on his hip with one arm and with the other hand he would unclip the straps, put his hand under (A’s) right side, move his hand under (A’s) back to (A’s) left side under his left armpit and to the area of his ribs. He would then lift (A). He agreed that the pressure placed on (A) had to be through the baby’s body from front to back. The child was then wedged between (his) body and his arm. When he was asked what was stopping (A) from falling, his reply was ‘suppression into the waistband’. He explained that this meant pressure onto the baby through the chest. It was his evidence that he frequently picked up both (A) and (M) by this method.

[25] He agreed that he had picked up (A) by this method on 4 June 2013 when Pamela Parker, the health visitor, was present.”

The sheriff found (para.28) that the first appellant was in the habit of lifting each baby using one hand in the manner described.

[8] The sheriff accepted the evidence of Dr Sarah Hill (para.16), consultant paediatrician, that: “inflicted injury” was the likely cause of the fractures; an infant is “more pliable” than an adult; and a “compressive force” was needed to fracture a rib. If the fractures had been caused by rough handling, it would have had to have been “very rough handling”. Dr Hill would not pick up an infant using only one hand for several reasons (para.18). A child of the age of the twins had no control over his head and neck, which needed to be supported.

It was not an appropriate way to handle an infant.

[9] The sheriff also accepted the evidence of Dr Wilkinson, consultant paediatric radiologist (para.20), that the rib fractures were likely to have been inflicted and that “major forces were required”. Dr Wilkinson had never seen a rib fracture subsequently attributed to heavy handling. The handling required would need to be “totally outwith normal handling”. A lot of force would be required as a baby’s limbs are pliable (para.21). It would require compression of the chest, causing the rib to bend to the point when it would break. The necessary compression would be by an adult “using full strength of hand to compress the chest”. It was possible, by lifting a child with one hand, to create so much pressure that the ribs of the child would break, although Dr Wilkinson considered that it was “highly unlikely” that the fractures had been caused in the manner described by the first appellant. The most likely cause of the fractures was trauma inflicted by an adult in two or more episodes.

[10] In the light of the evidence of Drs Hill and Wilkinson, a statement of the health visitor, and the evidence of the first appellant, the sheriff was satisfied “that the cause of the fractures was the way in which (the first appellant) picked up (A) and (M)” (para.30). The sheriff concluded (para.50) that the twins were likely to suffer unnecessarily or their health and development likely to be seriously impaired due to the lack of parental care. He took into account the evidence of the first appellant that it was still his practice to carry two children using one hand for each, although he had been challenged by a support worker about this.

[11] On the issue of wilful ill-treatment, the sheriff followed Clark v HM Advocate. “Wilfully” meant that it was the act which had to be deliberate and intentional, as opposed to accidental or inadvertent. There was no requirement to prove an intention to cause suffering. No criticism had been made of the reference to Clark in F B v Procurator Fiscal, Aberdeen.

[12] Had he been required to follow R v Sheppard, the sheriff would still have found that the offence had been committed on the basis that the first appellant either: (i) had been aware that lifting and carrying the twins, in the

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manner that he did, involved a risk of suffering or injury; or (ii) did not care whether it posed such a risk or not. The sheriff concluded that: “an adult lifting a child of about 12 weeks, using only one hand in the manner described, demonstrates utter disregard for the safety of the child”.

[13] On lack of parental care for the twins (questions 5 and 6; 2011 Act, s.67(2)(a)), the sheriff inferred from the past inflicted injuries to the ribs, and the first appellant’s continuing practice of using only one hand to lift each twin, that it was likely, at the time of the proof and in the future, that they would suffer unnecessarily, or their health and development would be seriously impaired due to a lack of parental care. He concluded that there was a prospective risk of the twins suffering unnecessarily or being so impaired “solely on this basis”.

[14] Questions 7 and 8 were whether the sheriff had erred in failing to delete, from the grounds of referral, statements of fact regarding the birth of the middle child and her parents’ failures: to visit her regularly in hospital; to attend various health appointments; and to allow home visits to monitor her health. They also included reference to rent arrears and domestic violence. The basis for the first appellant’s argument was the sheriff’s findings that the rent arrears had been remedied, the domestic violence had been of little or no consequence, the eldest child was safe and adequately cared for by her parents, and the failure to visit the middle child in hospital was not likely to have affected bonding or the parents’ ability to deal with her needs. There was a likelihood of unnecessary suffering or serious impairment from a lack of parental care only in relation to the infant twins (question 7). The final question was whether the sheriff had erred in failing to delete statements about the discovery of fluid in (M)’s subdural space on 5 June 2013, and of bruising to (A) on 4 June 2013, standing the sheriff’s conclusion that those injuries had not been proved to have resulted from ill-treatment or criminal conduct (question 8).

A

B

C

D

Submissions The first appellant (i) Wilful ill-treatment (questions 2–4)

[15] The first appellant submitted that the offence of wilful ill-treatment under s.12 of the 1937 Act required proof that the perpetrator had been either aware that his actions would cause unnecessary suffering or injury to health or had been unaware on account of his recklessness (R v Sheppard). The word “wilfully” governed and qualified all of the verbs in s.12. The likely consequences formed part of the “actus reus” of the offence (see, eg, s.12(2)).

The necessary “mens rea” required an intention to commit the whole of the “actus reus” as so defined or recklessness. There was no policy basis justifying criminal liability in the absence of intention or recklessness. Clark v HM Advocate had purported (at pp.56–57) to apply R v Senior. Senior had been misunderstood. It did not justify the proposition that s.12 created an “absolute offence” (R v Sheppard at pp.405–407, 410 and 418–419).

[16] Neither Clark nor Sheppard were directly in point. Both related to neglect by omission rather than ill-treatment by a positive act. In any event, Clark had been wrongly decided. It had been overruled in a number of respects (Ross v HM Advocate) and should now be “left behind”. Given its binding nature in criminal proceedings, it was accepted that any departure from Clark in the civil courts could result in the application of different principles for

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establishing grounds of referral. Nevertheless, whether Clark fell to be distinguished or deemed wrong, the sheriff had erred in finding the s.67 grounds established. It was “a basic issue of justice and policy” that “ordinary behaviour”, such as that in the present case, ought not to be criminalised. If the first appellant’s arguments were sustained, the criminal courts would resolve any resulting conflict of precedent.

[17] On the respondent’s interpretation, s.12 of the 1937 Act would criminalise accidents. Accidentally placing a child in danger should not be criminalised (S v Authority Reporter). The requisite state of mind had to be assessed subjectively (cf, R v Sheppard at p.411, citing s.8 of the Criminal Justice Act 1967), although motivation was irrelevant. In S v Authority Reporter, the sheriff principal (MM Stephen, pp.103–104) had been prepared to accept the reasoning in Sheppard. In Dunn v McDonald 2013, the sheriff (S Reid, paras. 42–44) had considered himself bound by Clark. It was “an accident of history” (ie, the misunderstanding of R v Senior, subsequently corrected in R v Sheppard) that the law stood where it did.

[18] The sheriff had erred in applying a reasonable parent test. He had thereby misled himself into drawing the inference that the first appellant had not cared about the risk of harm to the child. In adopting this fall-back position, the sheriff had overlooked that: (i) there was nothing inherently dangerous about what the first appellant had done; (ii) the first appellant lifting the child in front of the health visitor was indicative of his state of mind; (iii) the first appellant’s general attitude to his children had been exemplary and demonstrative of positive care; (iv) it was not obvious upon a medical examination at around the time of the lifting incident viewed by the health visitor that the boy had been hurt or had suffered rib fractures; and (v) the first appellant had consistently displayed anxiety in that the manner of his lifting may have caused the injuries. (ii) Lack of parental care (questions 5 and 6)

E

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[19] The only basis for the sheriff’s finding, that the twins had been likely to suffer unnecessarily, had been the first appellant’s practice of lifting and carrying them with one hand. The sheriff had found in fact that the first appellant had continued to do this. There was no evidence that this practice had caused any difficulty to the twins as toddlers. The sheriff having failed to identify any future risk, there had been no basis for finding grounds established under s.67(2)(a) (M v McGregor). The sheriff had been obliged to identify a future impairment to health, the likelihood that it would occur and that it was serious (H v Harkness at pp.294–295; M v McClafferty at para.9). The sheriff had not addressed these factors. He had referred to whether there “had” been a lack of parental care solely on the basis of his finding as to the past offence.

The offence had been, in reality, a “baby-handling problem”, which no longer arose by the time the twins were toddlers. (iii) Statements of fact (questions 7 and 8)

[20] The children’s hearing had to proceed on the basis of facts found established by the sheriff. It was not entitled to ignore the sheriff’s findings (M v Kennedy at p.434 [p.903]). The sheriff had expressly rejected the relevance of certain facts, but had failed to delete them from the statement of facts. There was potential for harm to be caused, in respect of all four children, if the children’s hearing were to proceed on the basis that these facts were relevant. These were not truly “supporting facts” for any ground of referral (cf, 2011 Act, s.89).

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[21] Statements of fact were intended to represent an agreed narrative following negotiation by the parties (see, eg, Act of Sederunt (Child Care and Maintenance Rules) 1997, rule 3.48; Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Rules 2013, rule 59(3) and (4)). The facts not being relevant to the grounds found established, they were not matters in respect of which the children’s hearing were required or entitled to act. If the grounds of referral were not otherwise discharged, the case should be remitted with a direction to the sheriff to delete the offending facts.

A

Respondent

B

[22] The respondent submitted that the issue was primarily one of the proper construction of the “gateways” to the children’s hearing system. There were two gateways: first, s.12 of the 1937 Act; secondly, and peculiar to the twins in the present case, lack of parental care in terms of s.67(2)(a) of the 2011 Act. The gateways placed the children within the jurisdiction of the children’s hearing, but did not dictate a particular outcome. It was for the children’s hearing later to consider the prevailing circumstances. All four children remained the subject of compulsory supervision orders. The eldest, now aged 13, lived at home with her parents. The middle child, aged three, and the twins, aged two, lived with foster parents subject to parental and sibling contact. The supervision requirements were reviewed regularly; most recently on 7 May 2015, resulting in variation of contact arrangements.

C

(i) Wilful ill-treatment (questions 2–4)

[23] It was not appropriate to substitute other language for the significant terms “ill-treats” and, in particular, “ill-treats. . .him”. There had to be illtreatment. The ill-treatment had to meet the threshold that it was likely to cause suffering or injury. The quality of the ill-treatment had to be consistent with the term “wilfully”. There were two prerequisites. First, the conduct had to be wilful in the sense of being deliberate and intentional (Clark v HM Advocate, LJC (Grant) at p.56). Secondly, the ill-treatment, objectively viewed, had to be “likely to cause. . .unnecessary suffering or injury to health”. No offence was committed in the absence of a likelihood of injury (H v Lees; D v Orr). Where there was such a likelihood, no intention to injure or awareness of risk was required (Clark v HM Advocate, LJC (Grant) at p.56).

[24] The case was not about the awkward lifting of a child. It was about the compressing of a child with sufficient force to cause serious injuries. The pivotal finding of the sheriff was the significant degree of force. Considering the resulting injuries, the only proper interpretation was that the children had been ill-treated in a manner likely to cause injury (H v Lees; D v Orr).

[25] The first appellant sought to read into the statutory provision words that were not there, by removing “in a manner likely to”, substituting “intending” in relation to injury, and adopting an artificial interpretation of “wilful”. Assault was no longer part of the statutory offence. Reckless conduct could constitute a separate Sched.1 offence. If what had happened had been accidental, there would have been no wilful ill-treatment. The ill-treatment was to lift a child and compress its chest with sufficient force to fracture the ribs.

[26] The obiter comments of Lord Diplock in relation to positive acts, in the peculiar context of English criminal law in R v Sheppard, were not a sufficient basis for the court to depart from the considered view of the High Court. To do so would result in two different means of assessment in referrals to the children’s hearing in relation to the same incident. Clark v HM Advocate

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and R v Sheppard were distinguishable as cases of neglect. However, Clark had been consistently applied in Scotland, most recently in F B v Procurator Fiscal, Aberdeen. The only exception was S v Authority Reporter.

[27] The first appellant’s interpretation of “wilful”, which proceeded on the basis of R v Sheppard, was inconsistent with Scots law. The court had had regard to the effect of s.8 of the Criminal Justice Act 1967, which did not apply to Scotland. According to Scots law, “wilful” does not denote recklessness but requires deliberate or intentional conduct (Clark v HM Advocate, H v Lees; D v Orr; Gordon, The Criminal Law of Scotland (3rd edn), para.7.13; Stoddard, “Criminal Law” in Stair Memorial Encyclopaedia (Reissue), paras 71 and 82; Byrne v HM Advocate).

[28] The sheriff had been entitled to conclude that the first appellant must have been aware of the risk of injury or did not care about the risk posed by the manner in which he had lifted the twins. The evidence and undisputed findings in fact constituted a strong objective indication of ill-treatment that was more than capable of supporting an inference of recklessness (R v Sheppard, at pp.408 and 412). (ii) Lack of parental care (questions 5 and 6)

[29] There had to be a future risk in relation to the lack of parental care ground. This was a prospective judgment involving an inference drawn from past conduct. There had been at least three occasions on which the first appellant had inflicted serious injury upon the twins. He had admittedly persisted in carrying the children in the same manner a year later. The sheriff had been entitled to draw the inference of risk from past events (M v McClafferty, at para.9), and his continuing conduct. He had been entitled to find the grounds of referral also established under s.67(2)(a) of the 2011 Act. (iii) Statements of fact (questions 7 and 8)

E

F

[30] The “incidental observations” included in the statements of fact would not have been included, had the reporter been drafting the grounds of referral of new. They would not cause any difficulty in practice. The children had now been in the system for around two years without any suggestion that the findings had caused difficulty.

[31] A stated case ought to address only questions of law that it was necessary to answer (S v Locality Reporter Manager at paras 7–8 and 26).

These particular questions would not, of themselves, form proper grounds of appeal. Whilst the children’s hearing could not proceed in a manner contrary to the sheriff’s findings (M v Kennedy), it was not confined to information contained in the grounds of referral. The relevance of any finding or other information was a matter for them (O v Rae).

Third appellant

[32] The third appellant associated herself with the submissions of the respondent. (i) Wilful ill-treatment (questions 2–4)

G

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[33] The sheriff had been correct to apply Clark v HM Advocate; (H v Lees; D v Orr, LJG (Hope) at p.244; Kennedy v S, Lord Hunter at p.48). He had been entitled to be satisfied, in any event, that the alternative test in R v Sheppard would have been met. There was no proper foundation in Scots law for the latter test of recklessness.

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[34] The substitution of a subjective test of awareness, in place of the objective test of likelihood, was not supported by R v Sheppard, which was restricted to cases of wilful neglect by failing to provide adequate medical aid.

Scots law drew a distinction between intent and recklessness (HM Advocate v Harris at pp.154, 165; Byrne v HM Advocate at p.162). The latter should not be imported into wilfulness (Clark v HM Advocate; H v Lees; D v Orr, LJG (Hope) at p.243; Gordon’s Criminal Law, paras 7.31 and 7.34).

[35] Dunn v McDonald was to be preferred to S v Authority Reporter. It was unnecessary to apply the term “wilful”, beyond the associated verbs, to the subsequent phrase describing the manner in which those actions were carried out. There were sound policy reasons for justifying a measure of strict criminal liability for the protection of vulnerable children (Dunn v McDonald at p.42).

A

B

(ii) Lack of parental care (questions 5 and 6)

[36] The sheriff had been required to conduct an assessment, with regard to the risk of lack of parental care in the future, based on the evidence of past events (M v McClafferty). The sheriff had been entitled to draw the inference that he did on the basis of the first appellant’s past infliction of a substantial number of rib fractures and his continued practice of lifting each child with one hand as recently as July 2014, notwithstanding his acknowledgement at police interview, on 5 June 2013, that such handling may have caused the fractures.

C

(iii) Statements of fact (questions 7 and 8)

[37] A children’s hearing was not entitled to ignore a finding by the sheriff (M v Kennedy). It was not confined to the established grounds. It could have regard to such information as it considered relevant (O v Rae, LP (Hope) at [p.321;] p.574). A children’s hearing proceeded on the totality of information before it, of which the established grounds were only a part. The deletion of statements of fact, which a sheriff had considered to have accurately reflected the evidence, would be a departure from normal practice. It would be apt to confuse the children’s hearing as to whether or not it was entitled to have regard to those findings as part of the whole background to the case.

Decision

[38] At common law, it was recognised that children required protection from being placed at risk or danger of injury, through neglect or ill-treatment, irrespective of the intentions of those whose deliberate actions brought about that risk (Macdonald, Criminal Law (5th edn), pp.125–126).

[39] The origins of s.12 of the 1937 Act lie in a succession of statutes providing for the prevention of cruelty to children in the Victorian era. They led to the Prevention of Cruelty to, and Protection of, Children Act 1889 (see, generally, Trotter, The Law as to Children and Young Persons (1938) and, for England, see R v Sheppard, Lord Fraser at pp.414–416). By virtue of s.1 of that Act, as applied to Scotland in terms of s.17: “Any person. . .who, having the custody, control, or charge of a child. . .wilfully ill-treats, neglects, abandons, or exposes such child. . .in a manner likely to cause such child unnecessary suffering, or injury to its health, shall be guilty of (. . .an offence). . .”.

The Prevention of Cruelty to Children (Amendment) Act 1894, added (s.2(1)) a reference to assault, alongside and distinct from ill-treatment, also qualified by “wilfully”.

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[40] The Prevention of Cruelty to Children Act 1894, substantially re-enacted the terms of s.1 of the 1889 Act, as so amended, to read as follows: “If any person. . .wilfully assaults, ill-treats, neglects, abandons, or exposes such child. . .in a manner likely to cause such child unnecessary suffering, or injury to its health. . .that person shall be guilty of (. . . an offence). . .”.

Further minor amendments were contained in the Prevention of Cruelty to Children Act 1904 and the Children Act 1908. Ultimately separate offences were provided for England, by the Children and Young Persons Act 1933 (s.1) and for Scotland, by the Children and Young Persons (Scotland) Act 1937 (s.12). The 1937 Act was subsequently amended by the Criminal Justice (Scotland) Act 2003 to remove the reference to assault (2003 Act, s.51).

[41] Section 12 of the 1937 Act provides: “Cruelty to persons under 16 (1) If any person who. . .has parental responsibilities in relation to a child. . .or has charge or care of a child. . .wilfully ill-treats, neglects, abandons, or exposes him. . ., in a manner likely to cause him unnecessary suffering or injury to health. . .that person shall be guilty of an offence. . .”.

[42] Sheriff Trotter KC, in the introduction to his contemporaneous account of the 1937 Act, observes (at p.xv) that the statute followed, “a marked development of the social conscience of the country regarding its children and young persons, and various Acts of Parliament. . .passed for the better protection of the young”. In particular (at p.xviii), Pt.II of the Act “provides for the prevention of (1) cruelty to children and (2) the exposure of children and young persons to moral and physical danger”. Trotter adopts (at p.21) the meaning of “wilfully” provided in R v Senior, Lord Russell CJ at p.290, viz. “that the act is ‘done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it’ ”. He highlights (at p.25) English authority (R v Williams) to emphasise that intent to injure is not required in order for the offence to be established.

[43] In Clark v HM Advocate, the High Court considered the admissibility, in a case of wilful neglect, of evidence tending to establish a state of mental irresponsibility which would negative wilfulness and justify an acquittal (LJC (Grant) at p.55). The evidence would have been to the effect that the parents were so feckless and incompetent that they could not have appreciated what the result of their conduct would be. Accordingly, it was sought to be argued, their neglect was not wilful.

[44] The Lord Justice Clerk (Grant) set out in clear terms the test to be applied in a prosecution for an offence under s.12(1) of the 1937 Act as follows (at pp.56–57): “The argument for the applicants. . .[proceeds] on a confusion between the two ingredients of such an offence: (a) that there should be neglect (or ill-treatment, abandonment, assault, etc) which is wilful – though it is difficult to conceive of conduct which is not wilful constituting assault; and (b) that this should be in a manner likely to cause the child unnecessary suffering or injury to health. As the Sheriff-substitute pointed out, ‘neglect is the want of reasonable care, that is the omission of such steps as a reasonable parent would take, such as are usually taken in the ordinary experience of mankind. That is what neglect is, but before you can bring a criminal charge, you have got to prove that it was wilful in the sense of being deliberate or intentional, but. . .without necessarily having any intent to

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harm the child’ [original emphasis]. In other words, while proof of wilfulness is essential to establish head (a), the test under head (b) is an objective one.

That test is whether the neglect was ‘in a manner likely to cause. . .’ and not whether it was ‘in a manner intended to cause. . . . The absence of such intention where, as is said to be the case here, the actings or omissions are due. . .to fecklessness and incompetence is. . .no defence.”

[45] In R v Sheppard, Clark was cited (at p.399) as a “strong authority in favour of the Crown”. The defence (at p.401) was that the parents did not realise that their child was ill enough to require medical attention. In relation to positive acts, Lord Diplock observed (obiter, at p.404) that the natural meaning of wilfully did not extend to the doing of a physical act, where the doer did not foresee the harmful consequences. It was deemed appropriate to overturn “the consistent practice of the courts. . .of treating R v Senior as if it were a binding authority for the proposition that. . .failing to provide him with adequate medical aid is an absolute offence” (Lord Diplock at p.407). The issue of parliamentary intention is conspicuously absent from the reasoning of the majority (cf Lords Fraser and Scarman (diss.) at pp.414–416 and 420–423 respectively).

[46] The sheriff considered himself bound by Clark v HM Advocate. He founded upon the reasoning of his colleague in Dunn v McDonald. The sheriff in Dunn (S Reid) had reasoned that: “[40] The offence. . .comprises three essential elements: (1) there must be neglect (or ill treatment, abandonment, or exposure) of the child by a parent (or other person having charge of the child), (2) in a manner likely to cause unnecessary suffering or injury to the child’s health, and (3) such neglect must have been wilful. . . .”

Both neglect and the likelihood of suffering were to be assessed objectively (paras 44, 46). There was no requirement for there to be any intention to cause suffering (para.63). The sheriff expressly declined to follow the reasoning of the majority in R v Sheppard, or of the sheriff principal (MM Stephen) in S v Authority Reporter.

[47] The contrary approach is illustrated in S v Authority Reporter; which was a decision on appeal from a sheriff’s finding that grounds of referral had been established. The child’s mother had thrown the child on to a bed, intending that it should land softly on top of it. There was a finding from the sheriff that the throw had been deliberate and intentional. However, applying the test set out by Lord Diplock in R v Sheppard (at pp.404–405), the sheriff principal held that the sheriff had not been entitled to find the mental element of the offence established.

[48] Clark and Sheppard, being examples of wilful neglect, may both be strictly distinguishable from the present case of wilful ill-treatment. However, the statutory construction set out in Clark applies generally to offences under s.12(1) of the 1937 Act, whether by positive act or omission. To that extent, it is, in criminal proceedings, binding upon all sheriffs who are required to construe the scope of any such offence. As a matter of principle, in the context of Scots criminal law, that construction is correct.

[49] “Wilful” ill-treatment requires deliberate or intentional conduct.

“Wilful”, as it is ordinarily understood in the context of the mental element in crimes, involves intention. Notwithstanding the origins of the statutory offence in legislation generally applicable throughout the UK, there is nothing to suggest that Parliament intended to restrict the common law position in Scotland. The pre-existing common law offences of child cruelty, loosely defined, paid little, if any, regard to either the motives or the state of mind of

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the perpetrator who put his child at risk or in danger, or caused the child to suffer injury. The relevant issue was whether harm would be likely to, or inevitably, arise from the deliberate act or omission in question.

[50] The scope of the requisite intention is sufficiently clear from the statutory purpose to improve the protection of children from cruelty (short of assault) at the hands of those who bear the responsibility of caring for them.

The statute requires the assessment of ill-treatment or neglect, according to the objectively assessed likelihood of its harmful consequences, in order to give effect to that purpose. The offence strikes only at conduct at such a level of culpability that it is likely to cause the child suffering or injury to health.

The imposition of criminal liability is circumscribed by the likelihood and significance of harm, and is restricted to the class of person in the position of responsibility for a child. The introduction of a subjective assessment of illtreatment or neglect, involving a search for the carer’s thinking at the relevant time, would remove the desired statutory protection otherwise afforded to children.

[51] Addressing the matter is a slightly different order from that in Dunn v McDonald whilst agreeing with the sheriff in that case, what is required, first, is that the conduct be deliberate. Secondly, the court must be able to categorise the conduct as “ill-treatment”, in the sense of involving what can reasonably be described as cruelty. The character or quality of conduct that will constitute ill-treatment is a matter to be determined objectively. The addition of the term “wilful” does not import a subjective element to that assessment. The proper threshold of criminal liability is fixed also by reference to the likelihood of sufficiently grave consequences arising from deliberate or voluntary action or inaction. The term “wilful” necessarily serves to exclude accidental or inadvertent conduct, as opposed to the accidental or inadvertent consequences of deliberate conduct, from the scope of the offence. It is unnecessary, and contrary to the statutory purpose, to restrict the scope of the offence by reference to the subjective awareness of the individual of the harmful nature of the conduct in question.

[52] There is no sound basis for the court to depart from Clark v HM Advocate in the absence of legislative provision to such effect (cf, Consultation on Proposals for an Offence of Wilful Neglect or Ill-treatment in Health and Social Care Settings, October 2014, Scottish Government). Clark has been settled law for almost half a century (see eg, Gordon’s Criminal Law, para 7.34). If it is to be departed from, and there appears to be little enthusiasm for that, it should be a matter for Parliament to determine. It would, in addition, be highly undesirable for the civil courts to attempt to trespass on matters of criminal law, both as a generality and in the particular context of a contrary decision being productive of different bases for referrals to the children’s hearing on the same facts (Criminal Procedure (Scotland) Act 1995, s.48; cf, Children’s Hearing (Scotland) Act 2011, s.67).

[53] The sheriff correctly applied the law. He found as a matter of fact that the infant twins had suffered inflicted injury at the hands of the first appellant, which had involved a significant degree of force or pressure. By lifting and carrying the twins with one hand, in the particular forceful manner described, the first appellant caused multiple rib fractures to both children on at least three occasions. On the sheriff’s narrative of the evidence, major force was required, such as the use of the full strength of an adult hand to compress the child’s chest. The conduct was such as to suggest very rough handling, totally outwith the norm. This is far removed from the characterisation of the conduct, made on the first appellant’s behalf, as “ordinary behaviour” in the lifting and

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carrying of infants. On the contrary, it could reasonably, if not inevitably, be categorised as “ill-treatment”. The conduct was intentional and deliberate. It was found to have caused the twins unnecessary suffering and injury to their health. On the basis of such findings, the sheriff was entitled to hold the offence established. Question 2 must therefore be answered in the negative.

[54] Questions 3 and 4 do not now arise. However, the sheriff’s conclusion, that the first appellant’s handling of the infants, with such a significant degree of force, demonstrated an utter disregard for their safety, was amply justified.

Had it been necessary to do so, these questions would have been answered in the affirmative.

[55] Since the commission of a Sched.1 offence was correctly established, a valid ground of referral subsisted in terms of s.67(2)(b) of the Children’s Hearings (Scotland) Act 2011. Whether the additional ground under s.67(2) (a) (lack of parental care) was also demonstrated, has little practical significance since all four children would have been referred, given the commission of the offence (2011 Act, s.67(2)(c)). However, in view of the sheriff’s findings of wilful ill-treatment and the first appellant’s repetition of similar conduct notwithstanding his apparent concern as to having caused the twins’ injuries by such conduct, the sheriff was entitled to conclude that the children remained at risk of a lack of parental care in the future. The first appellant contends that a number of factors militated against such a conclusion, including the first appellant’s general attitude and his anxiety when his mode of lifting was identified as a possible cause of the rib fractures. These factors were matters for the sheriff to take into account and weigh in the balance.

Notwithstanding the assertion, on the first appellant’s behalf, that what he did was not inherently dangerous, the sheriff was entitled to take the opposite view, which he did. He found that the appellant’s actions were likely to, and in fact did, cause the infants’ unnecessary suffering and injury (finding in fact (30)). The risk posed by the mode of lifting was pointed out to the first appellant, yet he continued to act in this manner. The fact that, obviously, the twins were slightly older when he did this may be regarded as of marginal significance. Questions 5 and 6 accordingly fall to be answered in the affirmative.

[56] Finally, in relation to the relevance of the statement of supporting facts, the grounds of referral having been established and the sheriff having remitted the case to the respondent to arrange a children’s hearing, the findings in fact have fulfilled their function. Thereafter, it was for the children’s hearing to consider the welfare of the children, taking account of such matters as they saw fit in determining whether measures of compulsory supervision were required. It is neither necessary nor appropriate for this court to engage in an exercise of adjustment of the supporting statement (S v Locality Reporter Manager, Lady Smith at paras 7–8). Accordingly, questions 7 and 8 fall to be answered in the negative.

[57] The appeal should accordingly be refused.

LORD MALCOLM [58] I agree that the questions posed in this appeal should be answered in the manner proposed by your Lordship in the chair, and that the appeal should be refused. I also agree with your Lordship’s general observations upon the law in this area. I wish to add some comments of my own on one aspect of the case.

[59] On the view which I take, the concentration both before the sheriff and in this court upon the “wilful” element in the statutory crime has obscured the

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real issue. To my mind, the key question is whether the conduct of the father, when lifting the children, amounted to “ill-treatment” in terms of s.12 of the 1937 Act. [60] There is no question that the conduct was wilful, in the sense that it was deliberate, which is all that is required in that respect. Equally, on the evidence, and in particular on the facts as found by the sheriff, especially the force used, it is clear that the conduct was “likely to cause (the children) unnecessary suffering or injury. . . .” The remaining requirement is that the conduct is properly characterised as “ill-treatment” within the meaning of s.12.

[61] Lifting a child, even if done clumsily or roughly, would not, I suggest, ordinarily be described as ill-treatment—at least not in the sense intended by the legislation. As his Lordship in the chair points out, the context is the protection of children from cruelty. In other words, the provision is designed to deal with a gross violation of parental duty. (I note that similar phraseology is used by Sheriff Trotter at p.23 of the work cited by his Lordship in the chair.)

[62] The only issue which has troubled me in this appeal is whether the sheriff was entitled to conclude that the father’s conduct in lifting the children in the manner which he did, and using such force as to cause the injuries, demonstrated the necessary cruelty towards them. However, having regard to his findings in fact and to the nature of the evidence before him, as explained in his note, I have come to the view that the sheriff was so entitled. It follows that it is not open to this court to interfere with the terms of para.29 of the sheriff’s findings, which are to the effect that the children were ill-treated.

[63] If a different view were to be taken on this matter, it would not involve any contradiction with the decision in Clark v HM Advocate, which involved a clear case of neglect in terms of s.12. The issue there was whether the alleged “mental irresponsibility” could elide the necessary wilfulness, or mental element. The answer was in the negative; but no equivalent question arises in the circumstances of the present case. I consider that the general concerns raised by counsel for the appellants as to the term “wilfully” are more properly addressed by reference to whether the undoubtedly deliberate, and therefore wilful, conduct amounted to “ill-treatment”. The nature of the submissions made to the sheriff and to this court have meant that this question has never been fully focused, however it is sufficiently covered by the sheriff’s findings in fact and the discussion in his note.

[64] If one does not give proper weight to the need for ill-treatment (or in another case, neglect) in the sense of cruel conduct towards children in violation of a parental or equivalent duty, there is at least a risk of criminalising deliberate conduct which falls short of ill-treatment (or neglect), if it is foreseeable that harm will be caused. Though not expressed in these terms, I suspect that it was a similar underlying concern which influenced Sheriff Principal Stephen in the case about the baby carelessly thrown on to a bed (S v Authority Reporter). An example of the kind of thing I have in mind might be when, out of frustration, a parent deliberately grabs the arm of a child who is refusing to stop running about, thereby dislocating his shoulder. Even if it is proven that this was likely to cause injury, it would escape the scope of s.12, not because there was no intention to cause harm, but because it was not illtreatment in the sense intended by Parliament.

[65] On the specific point raised by counsel for the appellants, Scots law has followed the path illuminated by Lords Fraser of Tullybelton and Scarman in their dissenting speeches in R v Sheppard. As Lord Scarman observed, the

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equivalent English statutory offence does not import the requirement of foresight or recklessness as to the consequences of what was done or not done (p.420D). Were it otherwise, Parliament’s intention to strengthen the law’s protection of children would be undermined.

LORD MCGHIE [66] I am grateful to the Lord Justice Clerk for his opinion and do not attempt to go over the ground he has fully covered. I accept that under Scots law, as it has developed since Clark v HM Advocate, the critical second question, dealing with intention, falls to be answered in the negative. I differ from him in my view that, on a proper understanding of how the sheriff approached this case, his findings did not properly address the issue of “wilful ill-treatment”— discussed further below—but I accept that the sheriff’s comments and summary of evidence would have led him to the same conclusion. I agree that if the law is to be changed it is a matter for Parliament. But an offence of wilful ill-treatment of adults in care settings is currently being proposed and this appears to me to justify some further consideration of the wording of s.12. I see no purpose to be served by treating the parent’s intention as irrelevant and although this is qualified to some extent by acceptance of the need to find conduct which can be objectively characterised as wilful ill-treatment, the qualification may, in practice, be of little significance.

[67] In order to explain this it is necessary to look at the matter in some detail. As presented by Mrs Scott, the issue in the second question was thought to turn on an apparent conflict between the law as it was said to have been laid down in Scotland in Clark, and the law as developed in England in R v Sheppard. It appeared to be thought that Clark was authority for the proposition that the mental attitude of the carer was wholly irrelevant except insofar as there had to be deliberate, as opposed to accidental, physical actings: in short, that all that was needed for the first stage of the offence was wilful actings. Mrs Scott plainly understood that this was to be the argument against her and this appears to have been how the matter was explored before the sheriff. Mr Moynihan, however, supported his contention that there had been wilful illtreatment by reference to the whole facts and circumstances and the inferences to be drawn from the injuries and the medical evidence of causation requiring the full force of an adult hand. He did not rely on the simple finding that the parent had deliberately picked up the child with one hand.

[68] There is scope for confusion between the concept of acting wilfully in the sense of deliberately intending a physical movement, or absence of movement, and the concept of a wilful offence which requires something in the conduct pointing to deliberate offending. In shorthand form these may be referred to as wilfully acting or wilfully offending. A paradigm example of the distinction is the making of a false entry in a register: see Kinnison. Where a person deliberately writes a name in a particular space, there is wilful acting but if he has not realised that he had the wrong name there is no wilful offending. He has not wilfully made a false entry. To extend the example, it can be said that if the offence was “wilfully making a false entry likely to cause a wrongful payment to be made”, the likelihood of such payment would not change the character of the offence. The first stage would be to find the criminal conduct. The need to prove a specific consequence would be seen as a qualification or restriction of the offence.

[69] In many contexts the wilful acting will itself be sufficient to demonstrate the offence. A deliberate striking can readily be characterised as the wilful offence of assault. Presenting a gun at a shopkeeper and demanding money is

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enough to establish the offence of robbery or attempted robbery. In other contexts it may be necessary for the prosecution to lead evidence of facts and circumstances from which the character of the conduct as an offence can be determined. The wilful making of a false entry in a register might need something more than proof that the entry was made and was incorrect. In most contexts, even where the objective actings would permit characterisation as an offence, there will be scope for a defence of lack of intention. In other words, even where the actings are sufficient, in themselves, to justify an inference of wilful commission of an offence, an accused will normally be entitled to rely on any evidence, including his own evidence of intention, explaining why the normal inference should not be drawn. The scope of a defence of lack of intention may be limited in some circumstances: see Lord Advocates Reference (No.2 of 1992). It is not necessary for present purposes to attempt a full analysis of when and how evidence of intention may be allowed.

I accept that, as explained by the Lord Justice Clerk, a subjective lack of intention to harm would not provide a defence under s.12.

[70] However, I am satisfied that any dicta which appear to exclude reference to intention must be understood as limited to the situation where the objective facts and circumstances point to the offence of ill-treatment.

Some one-handed lifting might well be regarded as ill-treatment. Lifting a child by the hair or by the ears might be obvious examples. But the problem can more readily be illustrated by the example posed by Lord Malcolm. If a parent tries to restrain a running child by grabbing his arm, it is certainly foreseeable that this wilful action might cause injury to the shoulder joint.

But it would not be described as “ill-treatment”. Although the specific circumstances of S v Authority Reporter were a little different, another example might be of a mother playing with her baby by throwing it on to a bouncy bed.

It would be foreseeable that if a throw was badly judged the baby might bounce and come into contact with a bedside unit. But in neither of these cases could the conduct be what Parliament must have had in mind in creating an offence of wilful ill-treatment.

[71] There would be no offence in relation to these two examples if it could be concluded that, while a harmful consequence was foreseeable, the actings were not actually “likely” to cause harm. Reference can be made to the discussion by Lord Hope in H v Lees, at p.246A–C, to the effect that this requires a “substantial risk”. But a better reason for exclusion of these examples would be the recognition that while the motivation of the parent is not relevant, there must be something about the deliberate conduct which can properly be described as “ill-treatment” before there is any need to look at the question of likelihood of injury as a separate step.

[72] The problem in the present case is that the discussion by the sheriff does not expressly deal with the question of whether the established conduct of the father was sufficient, judged objectively, to be characterised as “illtreatment”. There was no doubt that the sheriff found wilful acting. The father had deliberately picked up the child with one hand. The sheriff found that this was likely to cause serious harm. It may be noted that the risk which the professionals appear to have spoken to in relation to this act was the risk with a very young baby that its neck might not be properly supported. But, on any view, I do not accept that simply picking up a child with one hand could, in itself, be said to have the quality of being “ill-treatment”. The sheriff made no explicit finding in fact about the actings of the father in relation to the injury beyond the finding 31 that the injuries were caused by the father “lifting each of them using one hand”. Although his finding, at 27, that the injuries were

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due to inflicted pressure might be thought to point to wilful ill-treatment, I am satisfied that, in the context of the exposition of the facts, this finding was made at the stage of expressing his conclusions as to cause or mechanism of the injury. It does no more than that. In other words, in this finding he is not attempting to address the quality of the conduct. However, on the face of finding in fact 29 it appears that the sheriff took the view that if a particular physical action directed towards a child was a deliberate or conscious action—a wilful physical movement—there was an offence if it was likely to cause harm even if there was no mens rea in relation to ill-treatment. If, as appears from this finding, the sheriff considered that it was unnecessary for the purposes of s.12 to do more than find deliberate physical actings of a sort likely to cause harm without considering whether the actings had the character of “illtreatment”, I consider that he misdirected himself.

[73] Clark does not support an absolute offence. The critical decision in the case was simply that there was no need for any separate wilful intent in relation to the second part of the test. That was to be judged objectively and did not involve questions of the carer’s intention. But I am satisfied that the majority of the court never contemplated the proposition that a finding of wilful illtreatment could be made without any regard to the accused’s intention. The context in which these matters were discussed was unusual. The parents were charged with wilful neglect. Their conduct had led to the death of their child.

There appears to have been no dispute that it would have been a defence for the accused to show that they did not appreciate that the child was not getting enough food or was in need of medical aid: p.59, line 6. Indeed, the sheriff directed the jury that if they accepted the accused’s account of this they would be bound to acquit. However, the defence had attempted to bolster the parents’ own accounts by evidence of a psychiatrist to show “that the panels were only partly responsible for their actings”: p.58, line 5.

[74] Although the Lord Justice Clerk (Grant) explicitly rejected the analysis of wilful neglect in Gordon’s Criminal Law and said that a separate test applied to an offence of neglect under s.12, he continued to speak in terms of intention to neglect, ill-treat, abandon, or assault. In other words his discussion was consistent with a need to establish a wilful offence rather than simply deliberate actings. Lord Walker referred with apparent approval to the sheriff’s direction that if the jury accepted the parents’ evidence they would be bound to acquit. So, his opinion appears consistent with the view expressed in Gordon. Lord Milligan quoted the advocate depute’s submission that there was “no material difference between wilfully and mens rea”. The issue, as he expressed it, was whether there were different standards of mental responsibility or “a half way house between sanity and insanity”. He pointed out that there was no intention of showing that “the neglect was due to accident or ignorance”.

He did not suggest that this would have been irrelevant. It may also be observed that “assault” was expressly included in the section at that time and it can hardly be thought that the intention of the court was to say, by inference, that the term “wilful assault” as used in the statutory provision did not require guilty intent.

[75] Mr Moynihan did not seek support from Clark. He accepted that there must be some material allowing the physical actings to be described as illtreatment. Plainly this is comparatively straightforward where the actings can have no purpose other than to inflict harm. A punch on the nose, a blow with a belt, violent shaking, are all obvious examples but where the actings are not of that kind some inference of intention of harm must be capable of being drawn in order to create the criminal intent. This issue is blurred, in the

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context of s.12, because where physical actings are likely to cause harm to a child they will normally merit the description of ill-treatment. Accordingly the distinction between a need for wilful actings and wilfully offending may normally have little substance. I think it would have arisen sharply in the present case had there been no relevant material beyond finding 29. However, I have come to accept the Lord Justice Clerk’s conclusion that, on the basis of all the material he sets out, the sheriff was entitled, if not bound, to find the offence of wilful ill-treatment established by reference to the overt actings of the father. Taking the stated case as a whole, it is impossible to avoid the conclusion that the sheriff was satisfied that the father had used a dangerous amount of force when lifting the children. His discussion makes it plain that he accepted the evidence of Dr Wilkinson that a lot of force would be required to cause a fracture. He was not dealing with one injury but with similar injuries to two babies involving the fracturing of several ribs. Squeezing the ribs with sufficient force to cause fractures would in my view be sufficient to establish the necessary mens rea for assault—and a fortiori for ill-treatment. In short, on an objective view of the father’s actings in this case wilful ill-treatment can properly be inferred. When the interests of the children are at stake, it is appropriate to take a pragmatic approach to the stated case as a whole rather than to take a technical approach limiting our assessment to matters covered by specific findings in fact. I accept that the sheriff’s decision under s.12 must stand.

[76] In light of our approach to question 2, the questions arising in relation to s.67(2)(a) in relation to continuing lack of parental care are of no practical importance. However, it does appear to me that, whatever the implication of handling very young babies with one hand may be, a different approach is necessary with toddlers. The fact that the father was admittedly picking up the twins in this way in the summer of 2014 does not appear to me to be a sound basis for a finding that the children would be at risk from future lack of parental care. There was nothing to suggest that he was using undue force at that time or that the children’s necks were then at risk of lack of support. I would answer questions (5) and (6) in the negative.

[77] The Lord Justice Clerk has drawn attention to the discussion document published by the Scottish Government in relation to ill-treatment of adults in care: (Consultation on Proposals for an Offence of Wilful Neglect or Illtreatment in Health and Social Care Settings, October 2014, Scottish Government). It proposes an offence in terms simply of “wilful ill-treatment” and explains that it is not proposed to make the offence conditional upon a harmful outcome. I understand that the Ministry of Justice has been carrying out a somewhat similar exercise in relation to adults in care settings in England and has extended the consultation to include assessment of the working of s.1 of the English Children and Young Persons Act 1933, discussed in R v Sheppard. When any Scottish Bill is drafted, care will be required to try to avoid the potential confusion which has arisen in relation to s.12. Consideration of the working of that section and indeed consideration of the discussion of policy in R v Sheppard, might indicate a need for the section to be re-drafted to clarify the role of the carer’s intention.

[78] There was also some discussion of policy in the Scottish cases of S v Reporter and Dunn v McDonald, cited by the Lord Justice Clerk. Where there is doubt about construction reference can be made to the policy of Parliament at the time when the legislation was enacted. The question of whether that is now to be regarded as a sound or sensible policy does not properly arise in the context of construction by a court. But Parliament can be asked to reconsider.

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I do not find the current approach to the provisions of s.12 to provide a satisfactory outcome. In the context of protection of children, wilful illtreatment might, itself, have been treated as an offence, similar to assault. But plainly Parliament decided that some consideration of likely consequences was necessary. This might have been because normal parenting includes conduct by way of punishment which might be described as ill-treatment but which would not be regarded as a criminal offence unless it was likely to cause unnecessary suffering or injury to health. The reference to likely consequences appears to have had a dominant effect on construction of the provision as a whole. But, the need for an offence which does not require proof of intention is far from clear. It can be assumed that for the majority of parents, the risk of harm to their children is a more powerful sanction than the risk of criminal conviction. The downside is that there may be circumstances where the risk of criminal sanction might be a barrier to the seeking of proper care. The mother whose child bounced off the bed seems to have been quite open in seeking help. A more aware parent might have been tempted to obscure the facts to avoid risk of prosecution or “being reported to the Social�. This cannot be in the best interests of the children. Sound childcare can only be assisted by honest understanding of the facts. A policy of strict liability ignoring the actual intention of the carer might have been thought necessary at one time but may not be necessary now when there are other grounds for intervention in the care of children. Section 67(2)(a) would appear to me to provide an adequate ground for interference where children are at risk from parents who do not understand the consequences of their actings. However, any possible change would, of course, require consideration by people with a proper range of expertise.

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D For the first appellant: J Scott QC, Aitken, instructed by Drummond Miller LLP, Solicitors, Edinburgh.

For the third appellant: Moir, instructed by Balfour & Manson LLP, Solicitors, Edinburgh.

For the respondent: Moynihan QC, instructed by Anderson Strathern LLP, Solicitors, Edinburgh.

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A COURT OF SESSION

21 July 2015

Outer House Lady Stacey B

WILLIAM FREDERICK IAN BEGGS

Petitioner

Human rights—Prisoner’s mail—Officials opening privileged mail— Failure to implement satisfactory procedure—Whether prisoner “victim”—European Convention on Human Rights and Fundamental Freedoms, art.8 Words—“Victim”

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Article 8 of the European Convention on Human rights and Fundamental Freedoms provides: “Right to respect for private and family life.

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or of protection of the rights and freedoms of others.”

Rule 59 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011/331) provides: “(1) This rule applies only to letters and packages which— (a) are sent to a prisoner from a person, authority or organisation specified in a direction made by the Scottish Ministers in terms of paragraph (2), (b) are sent by a prisoner to a person, authority and organisation specified in a direction made by the Scottish Ministers in terms of paragraph (2).

(2) The Scottish Ministers may specify in the direction the persons, authorities and organisations with whom a prisoner may correspond subject to the conditions specified in paragraphs (3) and (4).

(3) Subject to paragraph (5), a letter package to which this rule applies must not be opened by an officer or employee unless – (a) the officer or employee has cause to believe that it contains prohibited article; (b) the officer or employee has explained to the prisoner concerned the reason for that belief; and (c) the prisoner concerned is present.

(4) the contents of a letter or package to which this rule applies must not be read by an officer or employee except where paragraph (5) applies.

(5) A letter or package to which this rule applies may be opened, and once open, the contents of the letter package may be read by the Governor, or by an officer or employee specially authorised by the Governor, where the Governor has reasonable cause to believe that the contents of the package may— (a) endanger the security of the prison; (b) endanger the safety of any person; or (c) relate to a criminal activity.

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(6) Where the Governor decides that the contents of the letter or package to which this rule applies may be read in terms of paragraph (5), the Governor must, prior to the contents of the letter or package being read, inform the prisoner of that decision and the reasons for that decision.

(7) Where a letter or package to which this rule applies is found to contain a prohibited article of any unauthorised property, the Governor must deal with the item in terms of rule 104.”

The Direction made on 19 March 2012 provides: “7(1) Prisoners may correspond with the following persons, authorities and organisations subject to the conditions specified in rule 59(3) and (4)— (a) The Scottish Human Rights Commission; (b) Equality and Human Rights Commission; (c) The Law Society of Scotland (d) The Office of the Scottish Information Commissioner; (e) The Office of the UK Information Commissioner; (f) The Risk Management Authority; (g) The Samaritans; (h) The Scottish Children’s Reporter Administration; (i) The Scottish Legal Complaints Commission; (j) The Scottish Public Services Ombudsman (2) Correspondence sent by the Scottish Legal Aid Board to a prisoner and marked ‘privileged’ shall be subject to the conditions specifies in Rule 59(3) and (4).”

The petitioner, a prisoner in HM Prison Edinburgh, complained in a judicial review of maladministration by prison authorities concerning his mail. He complained that over a period mail from the UK Information Commissioner’s Office had been opened and confidential mail addressed to him had been opened and other mail had been delayed. He argued that there was no efficient system of delivery of mail leading to delay and no efficient system of sorting privileged mail from other mail.

Counsel for the petitioner argued that the petitioner was a victim for the purposes of s.7 of the Human Rights Act 1998 and s.100 of the Scotland Act 1998; art.8 of ECHR had been breached by the opening of his confidential mail and by delay of his correspondence and that the actions were in breach of the respondent’s own mail handling policy.

Counsel for the respondents argued that the petitioner was not a victim as defined by the Act. The letters had been opened inadvertently and apologies and explanations were given. The interference did not have sufficient gravity to engage art.8 because the events were not sufficiently serious. Even if that were wrong; the mail had to be identified as privileged before it became privileged. There was no systemic failure or an irrational or unlawful system in relation to delivery of mail.

Held that no finding could be made that anything had been done deliberately or maliciously and while the respondents had drafted and promulgated policies to conform to the rules and the direction, in respect of the opening privileged mail the respondents had failed in implementation and the petitioner’s rights under art.8 had been breached (para.39); and cause continued for hearing as to whether a declarator or other remedy was necessary.

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Cases referred to: A G (Eritrea) v Secretary of State for the Home Department [2007] I.N.L.A. 407 Armstrong v United Kingdom, App no 48521/99 Boum v Secretary of State for the Home Department, 2006 CSOH 111

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Eckle v Germany [1982] ECHR 4; (1983) 5 E.H.R.R. 1 Ryder v United Kingdom, App no 16244/88 Windsor v United Kingdom, App no 16244/90 Woodin v Home Office and Francis v Secretary of State [2006] EWHC 3021 (QB) X v Federal Republic of Germany, App no 8383/78.

The full circumstances of the case and the arguments of counsel are to be found in the following opinion of the Lord Ordinary which was issued on 21 July 2015.

LADY STACEY [1] This is a petition for judicial review by Mr Beggs. He is a prisoner. He complains of maladministration by the Scottish Prison Service (SPS) prison authorities concerning his mail.

[2] The events with which this petition is concerned started in January 2013 and continued until January 2015. In the period between January and March 2013 the petitioner was a prisoner within HMP Glenochil and he was thereafter transferred to HMP Edinburgh. The petitioner made complaints to SPS that his mail from the UK Information Commissioners’ Office had been opened on 14 January 2013 while in Glenochil; that other confidential mail addressed to him was opened in Edinburgh in August, September (on two occasions), November, and December all 2013; that he suffered delayed receipt of mail of a confidential nature in April and August 2014, and a further delay of receipt of mail in January 2015. As the hearing before me progressed, it appeared that the complaint by the petitioner was that there was no efficient system of delivery of mail, leading to delay; and that there was no efficient system of sorting privileged mail from other mail. It was conceded that changes had been made since the petition was initiated. I find that the complaint about delay is not made out and that the complaint about the privileged mail is made out. My reasons for these decisions follow.

[3] Counsel for the petitioner moved to amend the petition in terms of a minute of amendment and answers which motion was not opposed by the respondents. Parties were agreed that the petitioner should be found liable to the respondents for the expenses of the amendment. The petitioner is legally aided and it was agreed that he should be found liable as a legally aided person with his liability modified to nil. I allowed that motion and made the finding on expenses in the form sought.

[4] The petitioner produced an affidavit which he sought to have received; that was opposed by counsel for the respondents. The affidavit was said to amplify the averments made on behalf of the petitioner; it did not introduce new facts and was not a basis for any new legal claims. It was lodged on the day of the hearing because it had taken a long time to prepare. Consultation with the petitioner had been generally by video link; arranging attendance for execution of the affidavit had taken some time. Opposition was on the basis that the respondents had no notice and so no opportunity to dispute the evidence given in the affidavit. Counsel sought to discharge the diet if the affidavit was allowed. I was advised that several diets of this hearing had already been discharged for other reasons. Parties were of the view, absent the controversy relating to the affidavit, that oral evidence was not needed and that the petition could be disposed of by submissions with reference to the productions.

[5] As I decided it would be best to proceed to hear the petition without further delay, I decided to allow the affidavit to be received, but stated that it

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would have little weight if it contained material evidence which was disputed.

After hearing parties I decided that the affidavit did contain evidence about matters not referred to in the petition, namely the petitioner’s claims of interference with his mail on other occasions; information about the petitioner’s inability to call a witness at an internal appeal; and about another prisoner’s successful complaint to the Scottish Public Services Ombudsman. I put no weight on these matters.

[6] It was argued on behalf of the petitioner that I should sustain the second, third, fourth, eighth and tenth pleas-in-law of the petition. In order to do so, counsel argued that the petitioner was a victim for the purposes of s.7 of the Human Rights Act 1998 and s.100 of the Scotland Act 1998; that art.8 of the European Convention on Human Rights (ECHR) had been breached by the opening of his confidential correspondence and by delay in delivery of his correspondence; and that the actions referred to were in breach of the respondents’ own mail-handling policy. If I were to find that the petitioner is a victim in terms of the legislation, then counsel proposed that a further hearing be held on the question of remedy.

[7] The first issue between the parties was whether the petitioner is a victim as defined by s.7 of the Human Rights Act 2000, which refers to art.34 of the ECHR. In order to decide it is necessary to examine the facts of the case and to make findings about events said to be in breach of a substantive right guaranteed by the state, and if such events have occurred, to make findings about any acknowledgement and redress made by the authority involved. It was agreed between the parties that the case of Eckle v Germany was authority for the proposition that a person need not be prejudiced by a breach, so long as he is directly affected by it.

[8] The ECHR guarantee said to have been breached is that contained in art.8 which is in the following terms: [Her Ladyship quoted the article as set out above and continued:] [9] The delegated legislation relevant to correspondence in prison is the Prisons and Young Offenders Institutions (Scotland) Rules 2011 and the Scottish Prison Rules (Correspondence) Direction 2012. The relevant rule is as follows: [Her Ladyship quoted the rule as set out above and continued:] [10] The direction, made on 19 March 2012 so far as relevant is in the following terms: [Her Ladyship quoted the direction as set out above and continued:] [11] Counsel drew my attention to a number of internal SPS documents known as Governors and Managers: Action Notices (GMAs), which set out the relevant procedure for the handling of privileged mail for prisoners. He began with GMA 26 A/09, which had been updated in terms of GMA 28 A/10, 34 A/10 05 A/13 and GMA 41 A/14. In 26 A/09, the following is stated under the heading “Identifying privileged correspondence”: “In order to help SPS comply with the requirements that privileged correspondence is passed to the prisoner unopened, agreement has been reached with a number of organisations on how they or those they represent should address and envelope such correspondence. Governors may wish to make an approach to the main local law firms representing prisoners in the prison to facilitate wider take-up of the process.

“When writing to a prisoner the letter should be ‘double envelope’.

The letter to the prisoner should be sealed in a first or inner envelope clearly marked to identify the sender, the recipient, and the privileged status of the correspondence. This should include as much as possible of the following:

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the full name of the prisoner, his date of birth and Hall location the words ‘legal correspondence’ for correspondence from a court or prisoners’ legal agents; and the word ‘privileged’ for other than ‘legal correspondence’.

“Alternatively this information may be contained in a covering letter to the Governor, providing the envelope clearly identifies the petitioner and the privileged status of the correspondence. . . .

“There may be other bodies who, for various reasons, do not subscribe to the ‘double envelope’ system. In a case where the ‘double envelope’ system has not been used but the envelope bears a clear indication such as a logo, frank or return address that it is from a prisoner’s legal adviser or one of the other bodies mentioned above, then the mail should be treated as privileged and passed to the prisoner unopened.”

[12] By 34 A/10, dated 30 July 2010, the UK Information Commissioner was added to the list of authorities from which correspondence was to be treated as privileged. Further, an appendix giving samples of logos likely to be found on communications from that authority and on others on the list was attached.

The list was stated to be not exhaustive and to be intended as guidance only.

No indication was given of the return address which may be expected from the various authorities. By 05 A/13 governors were reminded of the need to take reasonable steps to identify correspondence to a prisoner from one of the organisations identified in the direction. Governors were reminded that while the double envelope system was the most robust and preferred manner for insuring correspondence was appropriately passed to prisoners unopened, if that system was not used but the envelope bore a clear indication such as a logo or frank or return address then it must be passed to the prisoner unopened.

In a document entitled: “Prisoners correspondence include (sic) legal & privileged mail: a guidance document” dated April 2015 the address of the Information Commissioner is given, along with the following instruction: “Remember it may only show this address on the envelope. There may not be any logo.”

[13] As stated above, changes had been made to the policies and procedures of the respondents during the existence of this petition. By 001 A/15, dated 12 January 2015, policy and guidance for the management of prison correspondence was sent to the heads of prisons. It included a reminder that the double envelope was used by some senders of correspondence. Governors were reminded that a stamp bearing the words “privileged correspondence” was to be used by all establishments. The list of organisations to which privileged status applies was set out. An annex was provided giving those organisations’ logos. Governors were reminded that the list is not exhaustive and is intended to provide guidance only. Staff were asked to be alive to the possibilities that organisations change their logos. Governors were reminded that some organisations will use the double envelope system recommended by the Law Society of Scotland. Others will not. The following is stated: “There may be other bodies who, for various reasons, do not subscribed (sic) to the ‘double envelope’ system. In a case where the ‘double envelope’ system has not been used but the envelope bears a clear indication such as a logo, frank, or return address that it is from a prison’s legal adviser or one of the other bodies mentioned above, then the mail should be treated as privileged and passed to the prisoners unopened. . . .Governors should take reasonable steps to minimise the risk of bona fide legally privileged material being opened.”

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[14] A further document of guidance for prisoners’ correspondence in HMP Edinburgh was issued in April 2015. It provided that a member of staff was to be allocated to deliver mail to individuals as soon as operationally practicable, but within the same working day as receipt.

[15] The petitioner had raised petitions in the past to vindicate his rights concerning his correspondence. An undertaking had been given by the respondents in 2003 not to open the petitioner’s correspondence unlawfully and that undertaking was breached. The respondents admitted in the court process that it had been breached, in December 2004. Subsequently petitions were raised for judicial review in 2005 and 2006. While the details of these matters were not the subject of any submissions before me, counsel for the petitioner made it plain that the context in which the complaints which were before me required to be examined was that of there having been an earlier breakdown of the system for delivery of mail.

[16] The incidents of which the petitioner complained and the explanations from SPS were as follows:

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On or around 14 January 2013 when he alleged that an employee of the respondents opened privileged correspondence from the Information Commissioners Offers (ICO). The mail had not been stamped in accordance with the relevant policy. It bore a clear and distinctive frank and came at a time at which the petitioner had received a large number of items of correspondence from the ICO bearing that distinctive frank.

That frank comprises a return address but no logo and no name of sender.

The position of the respondents in connection with this was that the staff were not aware that the letter was from the ICO and was privileged correspondence. A necessary implication of that answer was that the staff responsible for handing the letter to the petitioner did not know the return address of the ICO. On or around 11 April 2013 the respondents opened an item of mail from the Scottish Information Commissioner (SIC) addressed to the petitioner.

The envelope containing the correspondence clearly bore the logo of the SIC. The answer from the respondents is to the effect of that the envelope did not bear a clear indication that it was to be treated as privileged. The petitioner complained and the complaint was dealt with within two days.

On or around 28 August 2013 the respondents opened an item of mail from the SIC addressed to the petitioner. The respondents’ position is that the envelope in question was addressed to the petitioner in handwriting and was marked “privileged” in handwriting. The officer within the hall was suspicious because of the unusual marking of the envelope. He opened the envelope in front of the petitioner and having realised that it did not contain any prohibited article the envelope and the contents were handed to the petitioner unread. The petitioner argued in respect of this occasion that if a “double envelope” system was used the envelope was precisely as one would expect it to be. The respondents argued that at that time, the SIC did not use a double envelope system.

Therefore the envelope was not recognised as one received in a double envelope and instead was seen as suspicious.

On around 22 September 2013 the petitioner received a previously opened item of mail from the SIC. The respondents’ response was that while the petitioner made an allegation shortly after uplifting his mail that the envelope appeared to have been opened and resealed, following investigation the respondents were not able to confirm that that had

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happened. The respondents stated that in general mail is not opened outwith the presence of prisoners and it is therefore highly unlikely that if the envelope had been opened and resealed, as claimed by the petitioner, it would have been done by the respondents’ staff; it was more likely that it was opened and resealed by staff within the office of the SIC. The respondents state that since August 2014 a system for marking letters as “damaged on receipt” has been employed in respect of letters which are already damaged when received into the prison.

On around 30 September 2013 the respondents opened an item of mail from the ICO to the petitioner. The item had not been stamped as confidential nor had it been recognised as such by the residential first line manager. The item was however franked. The petitioner argues that the staff ought to have been aware that the distinctive frank indicated that it was correspondence from ICO. There are 11 bodies who may send privileged mail and so staff ought to be aware of the franking. The respondents’ position is that the envelope did not bear a clear indication that it was from the ICO and that the staff concerned were therefore not aware that it had come from that source.

On 26 November 2013 the respondents opened an item of mail from the ICO to the petitioner. It had not been stamped as confidential nor recognised as confidential. It also bore a clear and distinctive frank. The petitioner argues that the respondents should have recognised that frank, especially as an identical envelope had been the subject of complaint less than two months prior to this occasion. The respondents’ position is the same as before, that is that the envelope did not bear a clear indication that it was from the ICO and that the staff concerned were therefore not aware that the mail had come from that source.

As regards delay, the petitioner asserts that on around 4 April 2014 an item from the SIC was delivered to the prison. It was sent by recorded delivery and signed for on that date. The item of mail was issued to the petitioner on 7 April 2014. The petitioner complained. The petitioner refused to speak with the residential first line manager investigating the complaint. The matter was escalated to an internal complaints committee, (ICC), the outcome being an apology to the petitioner and a direction given to the staff member who had failed to deliver.

On about 9 July 2014 the petitioner maintained that a letter from his solicitors was delivered to him in a substantially damaged condition and appeared to be open to a large extent. The petitioner complained.

Following an investigation, the respondents’ position was that there was no evidence to suggest the letter had been opened before the petitioner received it. This matter was escalated to a complaint to the Scottish Public Services Ombudsman. The petitioner’s complaint was not upheld. The petitioner also avers that mail from his solicitors was received in damaged condition on or around 22 April and 14 July 2014.

On around 22 August 2014 the petitioner received mail in the early evening, that mail having been posted on 19 and 20 August 2014. He also received privileged mail dated 19 and 20 August 2014. The petitioner believed that the letters dated 19 and 20 August were posted on the dates they were written and that those dated 19 August were delivered on 20 August and that those posted on 20 August were delivered on 21 August.

The respondent’s position is that the mail was all received at the prison on 21 August. It was delivered to the petitioner on 22 August. The reason for the delay was that the staff member responsible for issuing the mail

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was dealing with an incident in the prison on 21 August and so was not available to collect mail for the hall. The petitioner complained and the respondents apologised for the delay in his receiving his mail.

10. The petitioner was involved in litigation in the Court of Session in January 2015. On 6 January 2015 the solicitors representing his opponents wrote to him, posting the letter on the date it was written. It arrived in the prison on 7 January 2015 and was delivered to the petitioner after the close of business on 8 January 2015. According to the petitioner this had a practical detrimental effect on him. The subject of the correspondence was the lodging of a list of authorities for the court, which required to be lodged no later than 9 January 2015. The petitioner did not get the letter in time to respond and had to deal with the matter at the beginning of the substantive hearing on 29 January 2015. (The petitioner had in fact lodged a list, which did not conform to the Practice Note, limiting the number of authorities allowed.) The respondents’ position was that the petitioner refused to discuss the issue with the residential first line manager who apologised for the failure of process.

[17] The petitioner made a complaint about 2 December 2013 about the handling of his mail and in particular about the response from the respondents in relation to the events of 26 November 2013. He stated in his complaint form that he wished an explanation as that would “assist him to instruct his solicitors in any ensuing proceedings”. The petitioner states in his petition that other mail addressed to him received since March 2013 has not been correctly stamped and that only by chance it has not been opened. The respondents make no admission about this.

[18] In his petition, the petitioner makes averments about correspondence sent to him from the Scottish Legal Aid Board. At the hearing before me counsel stated that he did not intend to proceed with this part of the petition.

[19] The petitioner argues that the respondents being aware of the difficulties with the system of categorising confidential mail have failed to take effective steps to remedy those difficulties. He argues that there were 88 complaints by prisoners in relation to the handling of correspondence at HMP Edinburgh between January 2013 and July 2014. That was the highest number of complaints about correspondence received by any prison in Scotland during that time. According to the averments for the respondents the number was 78 rather than 88. The respondents argue that the mail which can be identified as privileged is stamped and is handed to the prisoner unopened. Mail that is not readily identifiable as privileged remains unopened until the recipient prisoner is present and is then opened by staff in front of the prisoner. The mail is not read. The respondents argue that the processes are audited regularly.

[20] Thus the petitioner alleges that his correspondence has been the subject of interference and delay. The respondents accept that most, though not all, of the events referred to above happened, while arguing that the events have been dealt with in a fashion such as to be satisfactory and prevent the petitioner being correctly categorised as a victim.

[21] Counsel for the respondents argued that even if the various incidents were ones which should have been avoided, they were all occasions in which the petitioner’s mail was opened in front of him. It was not read. Both oral and written apologies were made. There is a sophisticated complaints system which the petitioner made use of, although he failed to cooperate to some extent. The errors were not intentional; that the petitioner had not been singled out and in context of the many items of mail which were received the

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failures were understandable. He submitted that the petitioner’s interest in this had in any event faded as there had been no incidents since January 2015.

Thus he does not claim that his rights are being breached now.

[22] Counsel argued on behalf of the petitioner that it was not necessary to demonstrate prejudice to show that his art.8 rights had been interfered with but as a matter of fact he had been prejudiced on several occasions by reason of delay in being able to respond to matters relating to litigation in which he was involved. An example was given where he had to instruct his solicitors in an urgent matter but did not get a letter sent to him which had arrived in the prison the day before. It was handed to him one day late and he had to give instructions by telephone. On another occasion his opponents in a case in which he was representing himself had written to him the day before a deadline expired for the lodging of authorities. He had given a list of his authorities but had not appreciated that there was a limit of ten. The agents for his opponents advised him of that, but he did not get the letter in time.

[23] Counsel for the petitioner acknowledged that on several occasions the respondents apologised to the petitioner for any breach of his rights. The petitioner had made use of the SPS complaints system, which enabled him to complain and to appeal if not satisfied by the result to an ICC. He was also able to refer the handling of complaints to the Ombudsman, and had done so on one occasion. Counsel argued that while apologies might have a bearing on the remedy appropriate to any breach, the making of an apology did not deprive the petitioner of the status of the victim. Counsel argued that art.8(1). . .includes a right to the protection of correspondence. Any interference by a public authority must therefore meet the proportionality test in art.8(2). It was accepted that the respondents are entitled to a measure of control of prisoners’ correspondence for the prevention of disorder and crime. Nevertheless special considerations apply to lawyer-client correspondence and, it was argued, those special considerations extend to communications with the bodies listed in the Scottish Prison Rules (Correspondence) Direction 2012 by virtue of the character of the bodies and the likely reasons for communication between those bodies and people detained in prison. It was accepted on behalf of the petitioner that the proper operation of art.8 required a balance between the petitioner’s right to private correspondence and the respondents’ legitimate reason for interference with it. It was for the respondents to devise a suitable system and to implement that system efficiently. The argument on behalf of the petitioner was that if the system was not effective there was a breach of art.8 because there was no sufficient safeguard against interference beyond that which is proportionate. The petitioner argued that it was admitted by the respondents that they had opened mail which they should not have opened on several occasions. That showed that the system did not work or at least did not work sufficiently well. Counsel argued that the respondents had failed to adhere to their own policy.

[24] The delay suffered by the petitioner in getting his mail was, it was argued, also a breach of his art.8 rights. Due to the nature of the correspondence recognised as confidential, which is correspondence which is characterised as either legal or privileged by the respondents, it was argued that it was foreseeable that at least some of it may relate to imminent court or other proceedings. Thus it is necessary that it be delivered without undue delay. The petitioner argued that that meant delivery to the prisoner on the day of receipt by the prison unless there was some compelling reason why that was not possible. It was argued that that is set out in the respondents’ revised policy and practice guidance dated March 2015. The petitioner argued that he had

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not got his mail on the day it was delivered to the prison on the occasions referred to above and therefore his art.8 rights had been breached.

[25] Counsel for the respondents argued that out of six instances of complaints concerning privileged mail being opened, no item of mail adequately identified as privileged was opened. Four items of mail over a twoyear period were opened because the envelope did not adequately identify the mail as privileged. There was no system failure; there was nothing more than inadvertence.

[26] As for delay, the petitioner complained of three occasions. The respondents argued that one was caused by an incident within the prison diverting the relevant staff and the other two were admitted and gave rise to an apology and a review of the process of mail delivery. Thus delays, if so characterised, were caused by inadvertence and a proportionate allocation of resource within the prison. Counsel for the respondents emphasised that on each occasion the petitioner had made a written complaint within the prison, that complaint had been dealt with, also in writing, and on occasions when the petitioner so required it had gone to an ICC. This had resulted in review of mail procedures, improvements being made and apologies being issued to the petitioner.

[27] Counsel for the respondents argued that the petitioner was not a victim as defined by the Act. He made reference to two cases, Howard Woodin v Home Office and Francis v Secretary of State, both judgments of Mr Justice Davis, now Lord Justice Davis. The question was approached as one of fact and degree. It was thought by the court that it was important to discover if the letters had been opened deliberately or inadvertently and to discover what steps by way of apology and assurances or action as to future conduct with regard to correcting mistakes were taken. The court found that Mr Francis was not a victim because only two letters were involved and neither was read; the letters were not opened deliberately but rather inadvertently and apologies and explanations were given together with assurances; further there was no question of Mr Francis being singled out or picked on in any way. Counsel argued that all of that applied in the present case.

[28] The case of Mr Woodin was more marginal. The court found that inadvertence as the cause of infringements of the prisoner’s rights regarding mail did not of itself operate to preclude the prisoner having the status of a victim. However, the court found that Mr Woodin did not have victim status because the infringements were relatively limited; they were not deliberate, apologies were made, and corrective steps were taken.

[29] Counsel for the respondents referred to the case of Mark Armstrong v United Kingdom in which a prisoner complained that his privileged mail was always opened contrary to prison rules. His application was found to be inadmissible as he could not establish victim status. The court regarded as significant that the opening was in error, that an apology was tendered, that there was no malice, and that there was no systematic intention to deny the applicant his right to correspond. A similar conclusion was reached in the application of Michael Ryder v United Kingdom. It was found that the complainer was not a victim because he had failed to demonstrate any deliberate flouting of his rights. Counsel also referred to the case of Windsor v United Kingdom which was found to be manifestly ill-founded on the basis that one letter was opened inadvertently. Thus counsel argued that the petitioner was not a victim and that his petition could not succeed. His fall-back position was that even if the petitioner was a victim as defined, no declarator or other remedy should be granted.

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[30] As regards art.8 rights, counsel argued that the interference did not have sufficient gravity to engage art.8. Counsel for the respondents argued that there was no breach of the rights under art.8 because the events were not sufficiently serious. He made reference to cases under immigration statutes, notably A G (Eritrea) v Secretary of State for the Home Department [and] Boum v Secretary of State for the Home Department as authorities for the proposition that the interference complained of did not cross the threshold of seriousness required. Counsel argued that in the case of A G (Eritrea) it was held that there is a minimum level of engagement with art.8 rights before there can be a breach of those rights. He argued that cases involving for example, asylum seekers and others who seek to argue that they should not be deported were more likely to engage that minimum level than the petitioner who was claiming interference with his mail, which did not amount to his mail going missing, or even to any prison officer reading it. It seems to me correct to argue that there is a minimum level of interference required. The right to respect for correspondence is of course a different right to that of respect for family or private life. The rights are not comparable. The question is whether there was a sufficiently serious interference in the right of respect for correspondence.

Counsel argued that the interference did not have sufficient gravity to engage art.8 because the mail had not been read, scrutinised or censored. The incidents of opening the mail could not in the context of the volume of mail overall received, which was high, be capable of rationally restricting the petitioner’s willingness to enter into correspondence. In my opinion the failure over a period to implement a system set up by SPS is sufficient to reach that minimum level.

[31] Counsel argued that the complaints made were not concerned with solicitor-client confidentiality. The privilege said to have been interfered with in the present case was correspondence from the Scottish Information Commissioner and the UK Information Commissioner therefore arising from domestic law and being contained within the 2012 Direction and were therefore separable for the purposes of the Convention. Counsel argued that if the petitioner’s art.8 rights had not been interfered with then the court need not ask whether any interference was in accordance with law or whether it was of a proportionate measure.

[32] If he was wrong in that, counsel argued that mail had to be identifiable as privileged before it became privileged. He argued that the relevant guidance (GMA) identified as a matter of practice how protection for privileged correspondence operates in a prison environment and he argued that it was entirely appropriate.

[33] I find from the guidance given that prison officers were told that correspondence from the Information Commissioners’ Office was not to be opened because it was privileged but they were not told what the envelope would look like. From the productions in the case it can be seen that on some occasions at least the Information Commissioner sent out correspondence with his address at the front of the envelope but with no logo and no name.

Only in 2015 did the respondents include in their directions a note of the address. Thus it seems to me that SPS failed in implementation of its own policy. If a decision is made by policy-makers that correspondence from a particular source is to be treated as privileged then it is necessary to implement that decision by telling those who handle the mail how to recognise it.

Therefore the prison officers whose task it was to sort and deliver mail had to be informed as to the return address of the senders of privileged mail. SPS was aware that the double envelope system in which authorities would send

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correspondence addressed to a prisoner inside another envelope addressed to the governor was not universally used, despite their attempts to encourage senders of privileged information to do so. The prison officers dealing with the sorting and delivery of mail had to be made aware of the potential use of double envelopes, and a system of marking the internal envelope as privileged was needed. On one occasion a prison officer thought that a hand-written envelope marked privileged was suspicious. That is not surprising if he had not been told that some double envelope mail might be so marked. SPS put in a system whereby such mail would be marked “privileged” by a stamp when it was taken from the outer envelope. That system appears to be sensible and could have been adopted earlier than it was.

[34] As for delay, counsel argued that on the three occasions, one was excusable as a proportionate allocation of resources. The remaining two related to a delay of two days and one day. An apology was tendered and the officer concerned was spoken to. Since March 2015 the respondents have issued a robust guidance note and have therefore taken constructive steps, it was argued, to avoid delay. Counsel argued that this did not constitute a systemic failure or an irrational or unlawful system. In any event, he argued that the matter was now academic because the guidance has been improved and the petitioner does not require the intervention of the court.

[35] Counsel argued that in any event the provisions of art.8 do not extend to a perfectly working national postal service. He referred to the case of X v Federal Republic of Germany and stated that the distribution of mail within prison had to be “reasonable facilities for the effective flow of authorised correspondence”. The fact that three items were late could not justify an assertion that the system did not exist or was inefficient. He argued that the alleged delay was not excessive or persistent and emphasised that a perfectly working system with no errors was not required.

[36] The petitioner’s mail was not recognised as privileged when it came from ICO because the authorities in the prison service did not make sufficiently clear to the officers distributing the mail what that mail looked like. I find that is best described as a failure in implementation of a policy. I also find an implementation failure where a prison officer did not know what would result from a double envelope system, despite that being the system that the prison authority regarded as best and which they tried to encourage. As regards delay, I find that as discussed in the case of X v Federal Republic of Germany a prisoner is not entitled to expect or demand a perfect mail delivery system. The SPS accept that they require to have a system of delivering mail on the day it is received in the prison, but that has to be subject to operational requirements which occasionally necessitate delay. All systems are vulnerable to the occasional failure due to human error. I do not find anything other than those types of failure.

[37] I respectfully agree with the approach taken by Davis J (as he then was) in the cases of Francis and Woodin. Each case is fact sensitive and in the current case the context requires to be considered as this petitioner has made complaints in the past which have resulted in court action. He has frequently alerted the respondents to difficulties as he perceived them with his mail. In the case of Woodin at para.37 Davis J stated: “It seems to me that it is difficult to discern any bright line principle which exists to show where an appellant will in cases of this kind be treated as a victim and where he will not. Acknowledgements, apologies, assurances of remedial steps and a lack of deliberation and malice may well often be a necessary condition for a conclusion that a person is not to be styled as a

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victim; but it does not necessarily follow in all cases that that will be a sufficient condition for such a conclusion. Ultimately, everything would have to depend on the circumstances of each case.”

I respectfully agree with that analysis. In the present case I take the view that the history of difficulty with the petitioner’s mail is a relevant consideration.

Further, the repeated failure to recognise the return address of the ICO is relevant.

[38] In both of the cases, Davis J found that the prisoners were not properly seen as victims. He did however consider, should he be wrong in that assessment, whether he should grant relief to either of them. I agree with him when he states that it by no means follows that where that has been a violation of human rights financial compensation is necessarily awarded. He went on to state that he would not, in his discretion, grant the declaratory relief in circumstances in which the breaches were not deliberate or systematic and the corrective measures designed to prevent the occurrence had been taken. He dismissed both claims.

[39] In the present case, I find that the petitioner’s rights under art.8 have been breached although I make no finding that anything was done deliberately or maliciously. I make that finding because the respondents were well aware of the petitioner’s concern about his mail over a period of about 12 years. While the respondents drafted and promulgated policies to conform to the rules and the direction, it seems to me that in respect of the opening of privileged mail the respondents failed in implementation. The respondents took too long to instruct the mail-handling officers on the address of the UK Information Commissioner and also failed to instruct the persons handing out the mail on the appearance of mail from a double envelope, or failed to stamp the envelope when it was taken out of the outer envelope. It is not for a court to decide on the detail of the way in which a prison is run. That is a matter for SPS and I should and do show due deference to its ability and experience which I do not share. Nevertheless I am persuaded that the failures in implementation are such as to show that the system put in place by SPS during the time relevant to the complaints relating to privileged correspondence was insufficient in its actual working to enable the petitioner’s right to respect for his correspondence to be upheld.

[40] I was not addressed on the remedy which should be available to the petitioner were I to find that he was a victim and was asked by counsel to continue that to another hearing. It may be that counsel intended that if I found the petitioner to be a victim as defined I would pronounce a declarator and any other remedy would be held over. However I am not persuaded that I should necessarily do so and wish to be addressed on that, together with being addressed on the question of any other remedy. I therefore find that the petitioner’s rights under art.8 have been breached; that he is a victim; and I will hear counsel on whether a declarator or any other remedy is necessary at a date to be fixed.

For the petitioner: Campbell QC, Leighton, instructed by Drummond Miller LLP, Solicitors, Edinburgh.

For the respondent: Byrne, instructed by the Scottish Government Legal Department, Edinburgh.

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A COURT OF SESSION

22 July 2015

Outer House Lord Doherty GLEN CLYDE WHISKY LTD

Pursuer

B

against CAMPBELL MEYER & CO LTD

Defender

Contract—Breach of contract—Implied terms—Satisfactory quality— Poor labelling on whisky bottles—Whether material breach—Sale of Goods Act 1979 (c.54), s.14 Section 14(2A) and (2B) of the Sale of Goods Act 1979, as substituted by the Sale and Supply of Goods Act 1994, provide: “(2A) For the purposes of this Act goods are of satisfactory quality if they meet the standard which a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all other relevant circumstances.

(2B) For the purposes of this Act, the quality of goods includes their state and condition and the following (among other things) are in appropriate cases aspects of the quality of the goods— (a) fitness for all the purposes for which goods of the kind in question are commonly supplied, (b) appearance and finish, (c) freedom from minor defects. (d) safety and (e) durability.”

In 2009 the pursuer began to purchase whisky from the defender under two brand names, Black Horse Whisky and Glen Clyde Whisky. The pursuer maintained that the defender failed to deliver the correct quantities of whisky and sought repetition of the price and damages representing the loss of profit.

It also sought damages in respect of certain whisky that was not of satisfactory quality; the labels were defective and the damages was the remedial costs in remedying the defect.The defender denied that the whisky was of unsatisfactory quality and maintain it was entitled to withhold performance of its obligations to deliver goods which had been paid for because the pursuer was in breach of its obligations to pay the purchase price due under other contracts for the sale of whisky and it counterclaimed seeking payment of the purchase price due under these contracts.

A proof before answer was allowed restricted to three issues, namely: (1) the terms of the contract between the parties; (2) which party (or parties) was in breach of contract; and (3) whether any such breach entitled the other party to refuse to perform its obligations under that contract or any other contract between the parties. The evidence showed that when a pallet was inspected it could be seen that the front labels on the bottles were partially peeling off at the edges and some were squint or had air bubbles.

Counsel for the defender submitted that the contract did not require the finished product to be of satisfactory quality. No tolerance limits were specified in the contracts and satisfactory quality did not mean that each label required to be perfectly applied. It was relevant to have regard to the fact that none of

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the goods had been rejected and the problem had been able to be resolved by the pursuer’s warehouseman at modest cost.

Counsel for the pursuer argued that the profile of the whiskey was important to the pursuer because it was being sold in a luxury market.

Held (1) that a reasonable person acquainted with all the facts of the case (and in particular one in the position of the buyer with its knowledge), would not regard the bottles which had labels peeling off as having been of satisfactory quality (para.51); (2) that in relation to front labels, a reasonable person acquainted with all the facts would not regard a bottle as being of unsatisfactory quality unless the misalignment of the label was clearly noticeable and it was also far less likely that the deviation in relation to a back label would be regarded as significant (para.52); (3) that where bottles were not of satisfactory quality the defender was in breach of contract and a breach was not a trivial breach (para.56); and (4) that the fact that certain of the goods under an earlier contract for the sale of whisky might have been a unsatisfactory quality did not entitle the pursuer to withhold performance of later, distinct contracts relating to Glen Clyde whisky or Black Horse Whisky and its withholding of payment was wrongful and was a material breach of contract (paras 68, 69), and case put out by order for parties to address the court on the terms of an appropriate interlocutor and further procedure.

Cases referred to:

D

Bank of East Asia Ltd v Scottish Enterprise, 1997 S.L.T. 1213 Gilbert Sharp & Gilbert v Wills [1919] S.A.S.R. 114 Kennedy v Chivas Brothers [2013] CSIH 57; 2013 S.L.T. 981 Lloyds Bank v Bamberger 1993 S.C. 570; 1994 S.L.T. 424 McFarlane v Thain [2009] CSIH 64; (I.H.) 2010 S.C.L.R. 55; 2010 S.C. 7 McNeill v Aberdeen City Council [2013] CSIH 102; 2014 S.C. 335; 2014 S.L.T. 312 Macari v Celtic Football and Athletic Co Ltd, (I.H.) 2000 S.C.L.R. 209; 1999 S.C. 628; 2000 S.L.T. 80 Morrisons Associated Companies Ltd v James Rome & Sons, 1964 S.C. 160; 1964 S.L.T. 249 Niblett v Confectioner’s Materials Co Ltd [1921] 3 K.B. 387.

E The full circumstances of the case and the arguments of counsel are to be found in the following Opinion of the Lord Ordinary which was issued on 22 July 2015.

LORD DOHERTY Introduction

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[1] The pursuer is a company incorporated under the Companies Acts with its registered office in England and Wales. It has offices in London and Moscow.

It imports and distributes alcohol, mainly to Russia and neighbouring countries.

The defender is a company incorporated under the Companies Acts and having its registered office in Scotland. It produces, bottles and packages whisky.

[2] In 2009 the pursuer began to purchase whisky from the defender. The whisky was produced by the defender to the order of the pursuer mainly under two brand names, Black Horse Whisky and Glen Clyde Whisky. Glen Clyde Whisky was the pursuer’s own brand name. Black Horse Whisky was the brand name of a customer of the pursuer.

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2016 S.C.L.R. Glen Clyde Whisky Ltd v Campbell Meyer & Co Ltd (OH) 343 [3] Up until 2011 standard bottles and labels had been used for Glen Clyde Whisky. In 2011 the pursuer decided that the bottles and labels should be redesigned to make them more distinctive and to make the product look more like a premium product. Designers were engaged by the pursuer. The new bespoke bottles had fairly sharp bevelled corners and they had panels on the front and rear for the location of labels. They also had embossed lettering on the side. The new front label was T-shaped, with the horizontal axis of the T extending beyond the label panel and over the bevelled corners of the bottle.

[4] In the present commercial action the pursuer maintains that in December 2011 the defender failed to deliver quantities of Black Horse Whisky and Glen Clyde Whisky that had been bought and paid for. It seeks repetition of the price of that whisky and damages representing the loss of profit it maintains it would have made had that whisky been supplied. The pursuer also claims that certain Glen Clyde Whisky supplied in late 2011 was not of satisfactory quality, and it seeks payment of damages in respect of that breach of contract (the damages being remedial costs it incurred in remedying label defects). The defender denies that the Glen Clyde Whisky was not of satisfactory quality. It maintains that it was entitled to withhold performance of its obligations to deliver the Black Horse Whisky and Glen Clyde Whisky which had been paid for because, it avers, the pursuer was in breach of its obligations to pay the purchase price due under other contracts for the sale of Black Horse Whisky and Glen Clyde Whisky. It has counterclaimed seeking payment of the purchase price due under those contracts, failing which for damages for breach of the contracts.

[5] By interlocutor dated 24 September 2014 the court allowed a proof before answer restricted to three issues: (a) the terms of the contracts between the parties; (b) which party (or parties) is (are) in material breach of contract; and (c) whether any such breach entitled the other party to refuse to perform its obligations under that contract or any other contract between the parties.

Signed witness statements were lodged in advance of the proof and the statements were treated as comprising the substance of the evidence in chief of the witnesses. The proof had been set down for four days. The evidence took five days to complete. Thereafter counsel prepared written submissions and I heard oral submissions on a further day.

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The witnesses

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[6] The pursuer called three witnesses—Andrey Romanov, Yulia Kalugina and Sergey Kemnev. Mr Romanov is in charge of the commercial side of the pursuer’s business. Miss Kalugina is a Russian lawyer and is in charge of the pursuer’s Moscow office. Mr Kemnev is a marine and cargo surveyor employed

by Baltic Kontor Ltd, an independent marine and cargo surveying company in Riga.

[7] The defender’s witnesses were Colin Barclay, who was chairman of the defender and of its holding company, JG Distillers Ltd. He was the person primarily involved in contractual and commercial discussions with Mr Romanov.

Gerrard McSherry is managing director of the defender’s holding company.

His responsibilities related mainly to the financial aspects of the transactions with the pursuer.

[8] Except where I indicate otherwise I found each of the witnesses to be credible and reliable. Mr Romanov’s manner in the witness box was rather off-putting. He had a tendency—especially in cross-examination—to be abrupt and adversarial. Mr Barclay was vigorously cross-examin[ed] and appeared to be somewhat taken aback by the experience. It was plain that at

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various stages of the parties’ dispute his understanding of the parties’ legal rights had been erroneous (e.g. in relation to whether the defender’s written terms and conditions had been incorporated into the contracts of sale; whether the parties had a binding framework agreement that the defender would be the pursuer’s exclusive supplier of whisky for a period of three years; what the defender’s legal rights were in relation to certain rare whiskies which the pursuer had purchased). However he impressed me as a straightforward witness who answered questions fairly and moderately. He accepted matters put to him when it was correct to do so.

The terms of the contracts Framework agreement?

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[9] In the defences and the counterclaim the defender maintained that the parties had entered into a framework agreement in terms of which the pursuer undertook to purchase whisky from the defender for a period of three years; and that during that period the defender was to be the exclusive supplier of whisky to the pursuer. That position was maintained initially at the proof; but it quickly became apparent during the evidence of Mr Barclay that he considered that the parties’ relationship had been subject to certain principles of “governance” rather than a binding framework agreement. Ultimately he accepted that, while there had been negotiations with a view to concluding a framework agreement, the parties had been unable to agree on appropriate terms and no such contract had in fact been concluded. It is clear that one of the stumbling blocks to agreement being reached was that the pursuer wished to have a credit facility whereas the defender was insistent on prepayment for goods sold.

D Uncontentious matters

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[10] Certain matters were uncontentious. The pursuer submitted orders to the defender offering to purchase the whisky specified in the order. If the defender agreed to supply all or part of the order it would issue a pro forma invoice in respect of the quantity it agreed to sell. A separate contract of sale was concluded on the issuing of each pro forma invoice. In each of the contracts with which the proof was concerned the pro forma acceptance had provided that the payment terms were “100 per cent prepayment” and that the goods were sold ex-works. It was accepted that the pursuer was obliged to pay for shipping costs. The defender admits (ans.6) that it was an implied term of each of the contracts that the goods supplied would be of satisfactory quality (Sale of Goods Act 1979, s.14).

[11] I turn then to matters which gave rise to some controversy at the proof.

Glen Clyde Whisky origination costs and Black Horse Whisky origination costs and label printing costs

[12] Origination costs were the costs of obtaining new print plates for labels and cases. I accept Mr Barclay’s evidence that Mr Romanov agreed to pay origination costs for the new labels and cases for Glen Clyde Whisky. His evidence is confirmed to a very considerable extent by the terms of the correspondence which was produced and by the fact that the pursuer did in fact pay some of the invoices which were rendered for origination costs.

Ultimately Mr Romanov was prepared to accept that it was possible that he had agreed that the pursuer would reimburse the defender for such costs: but he did not have a clear recollection of whether he had or had not done so.

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2016 S.C.L.R. Glen Clyde Whisky Ltd v Campbell Meyer & Co Ltd (OH) 345 [13] The defender averred that the pursuer had agreed to pay label and case origination costs and label printing costs for Black Horse Whisky, and energy surcharges (charged to the defender by the manufacturer of the Glen Clyde Whisky bottles). Mr Romanov did not accept that. None of these additional costs were mentioned by Mr Barclay in his witness statement. Objection was taken when Miss Crawford sought to address the deficiency by asking Mr Barclay supplementary questions during examination in chief. I sustained the objection on the basis that if the defender had wished to lead evidence as to these matters it ought to have been dealt with in the witness statements.

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Payment of the price

[14] The defender maintains that it was an implied term of each of the contracts that the pursuer would make payment of the price within a reasonable time after the contract’s conclusion. That is admitted by the pursuer in condescendence 8: “Admitted that it was a term of the contracts between the parties that the pursuer would make payment to the defender within a reasonable time after concluding contracts for the supply of whisky.”

The same admission is repeated by the pursuer in the answers to the counterclaim (ans.8).

[15] Mr Walker argued that, in relation to each contract, payment did not require to be made until a short period—five to 14 days—before a confirmed shipping date had been provided by the defender. He maintained the pleadings and the witness statements had given fair notice of the pursuer’s position in this regard, and that a finding that the payment obligation was in those terms ought to be made. If it were necessary to do so he sought leave to amend the admission in condescendence 8 by adding after the word “whisky” the words “under explanation that in terms of the parties‘ practice the pursuer only paid a few days before shipping dates provided by the defender”. As evidence to that effect had been led without objection the motion to amend should be granted despite the late stage at which it was brought (Kennedy v Chivas Bros at para.35). The evidence relied upon came from Mr Romanov, Ms Kalugina and Mr Barclay, and Mr Walker submitted that it was consistent with the correspondence between the parties. He accepted that it was inconsistent with the evidence of Mr McSherry; but he maintained that Mr McSherry’s evidence should be rejected because it was at odds with the rest of the evidence, and because he had not in fact been involved in concluding the various contracts.

He submitted that even if the evidence as to practice did not illustrate the parties’ respective obligations, it was a relevant factor to consider when determining whether payment had been made within a reasonable time after a contract had been concluded.

[16] Mr Romanov had prepared a witness statement and a supplementary witness statement. In neither of them had he made reference to payment not being required to be made until a few days before a shipping date. In examination in chief Mr Walker asked him to “look at how the ordering procedure worked”.

Mr Romanov indicated that the orders were made and were accepted by the issue of a pro forma invoice; and that the pursuer paid for the product “two weeks to five days” before it was shipped. Mr Walker then asked Mr Romanov to look at an email from Mr Barclay to him of 31 May 2010 (Joint Bundle (“JB”) 2), and at the statement “I would propose payment to be made at production with finished goods held under bond to your order and subsequent call off instructions.” Mr Walker asked him if that accorded with what he had

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said. Mr Romanov agreed. Mr Walker then put it to Mr Romanov: “The defender says there was no production until payment.” Mr Romanov replied: “We never had a practice to make payment before production.” He said that production JB 242 showed that shipping had in fact usually been between two weeks and five days after payment. In practice goods had been ordered, then produced, then paid for, then shipped. In cross-examination Mr Romanov said that the pursuer paid the price after it had received a shipping draft which contained the shipping date. Under reference to JB 242 he accepted that the period between payment and shipping varied considerably. In re-examination Mr Walker asked Mr Romanov to “clarify the facts for ordering and receipt”.

Mr Romanov indicated that the order was placed. The pro forma invoice was received. The product was produced. The shipping draft was received. Then a payment was made five to 14 days before the shipping date: “Before we pay we are told when they are going to ship.”

[17] In Ms Kalugina’s witness statement she stated: “27. . . . It was our practice to pay the pro formas a few days before the goods were due to be dispatched. Campbell Meyer would estimate dispatch dates and we would pay shortly before those dates.

28. The terms of payment were not clearly agreed therefore we paid shortly before the shipments were made. According to our own practice with Campbell Meyer, the normal payment terms for Black Horse were around four to 14 days before the scheduled dispatch date.” (emphasis added).

In re-examination, under reference to JB 60, Mr Walker asked the witness whether, prior to the end of November 2011, when loading dates had been confirmed payments had been made. She answered, “We never had arguments and payments were made accordingly with the pro formas.” Mr Walker then asked, “After the pro formas or the shipping dates?” She answered, “The shipping dates.”

[18] In cross-examination of Mr Barclay, Mr Walker put to him that how the contracts operated was: (i) the pursuer issued an order with proposed delivery dates; (ii) the defender issued a pro forma accepting the order (in whole or in part); (iii) the defender would provide estimated loading dates; and (iv) the pursuer would pay a few days before loading. Mr Barclay responded, “That was how it worked out.” Mr Barclay agreed that it was important for the pursuer to have a timeline. Mr Walker referred Mr Barclay to the second sentence of the email of 8 November 2011 from the pursuer’s Mr Timen to the defender’s Mr Boytcho Nikolov: “As it is agreed in the terms of payment—we are prepaying all the goods just before loading not months before.” Mr Walker asked whether that sentence accorded with what Mr Barclay had just said about how things had worked out. Mr Barclay agreed it did.

[19] Mr McSherry’s evidence was that the defender’s pro formas would indicate the payment required; and that in return for payment the defender would produce the whisky and then ship it. His understanding was that goods were to be paid for prior to production, and that the defender was not obliged to begin production until payment had been received. In an email of 28 November 2011 to the pursuer (JB 62) he had reminded it that payment was required before production. The purpose of spreadsheet JB 242 had simply been to show that, in general, payments were made in advance of shipping: it did not show when shipping dates were provided or confirmed.

[20] Miss Crawford founded upon the pursuer’s admission in the pleadings that it was a term of each contract that it would make payment to the defender

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2016 S.C.L.R. Glen Clyde Whisky Ltd v Campbell Meyer & Co Ltd (OH) 347 within a reasonable time after concluding the contract. The pursuer ought not to be permitted to depart from that clear and unambiguous admission. There was no record for the proposition that it was a term of each contract that no payment was due until the defender provided shipping dates, or that payment was not due until “a few days before” loading. Neither was there any record for the proposition that that was how the contracts had been operated in practice. The evidence of Mr Romanov and Ms Kalugina in that regard was unsatisfactory. It was not a matter that Mr Romanov had dealt with at all in his witness statement. The evidence now relied upon by Mr Walker had been taken during the “scene-setting” part of Mr Romanov’s evidence in chief and during re-examination. In relation to both his evidence and the evidence of Ms Kalugina there had been a degree of leading and prompting by Mr Walker.

In any case the evidence founded upon had been couched in the language of practice. That was why no objection had been taken to it. It did not establish that the provision of shipping dates by the defender was a condition precedent to there being an obligation to pay the price: nor did it establish that the obligation was to pay a few days before shipping. Had it been squarely put to any of the witnesses that those matters were terms of the contract, objection would have been taken. It was far too late to seek to amend the pleadings after proof had been heard. The defender would be prejudiced. It had approached proof preparation and the conduct of the proof on the basis that it was admitted that payment required to be made within a reasonable time of the conclusion of each contract. Had it been made apparent before the proof that estimated, or confirmed, shipping dates were said to be important, the defender would have prepared its case accordingly. Reference was made to Morrisons Associated Companies Ltd v James Rome & Sons, per Lord President Clyde at p.182, Lord Guthrie at p.190; Kennedy v Chivas Bros at para.35; McFarlane v Thain at paras 20–22.

[21] I agree that the pleadings contain clear and unambiguous admissions that it was a term of each contract that the pursuer would make payment to the defender within a reasonable time after concluding the contract. The pursuer does not aver that it was a term of the contracts that no payment was due until the defender provided a shipping date (estimated or confirmed).

Nor does it aver that it was a term of the contracts that payment was not due until “a few days before” any such date.

[22] I accept that Ms Kalugina’s witness statement made reference to the pursuer’s practice in relation to payment: but it fell well short of laying the ground for the withdrawal of the pursuer’s admission that payment was to be made within a reasonable time of a contract having been concluded, or asserting that the terms now suggested by Mr Walker were terms of the contracts. I also accept that the evidence from Mr Romanov, Ms Kalugina and Mr Barclay upon which Mr Walker relies was led without objection from the defender. The nub of the evidence as to practice which I accept is that the pursuer would often pay for goods about five to 14 days before an estimated shipping date. That was the scenario set out by Ms Kalugina in para.27 of her witness statement, and it was the scenario which was put to and accepted by Mr Barclay in cross-examination. I do not accept that the practice was also that a shipping draft confirming shipping dates required to be issued before payment was made. Insofar as Mr Romanov and Ms Kalugina suggested that was the case I reject their evidence as being unreliable. In my view it would be unjust to the defender to do otherwise given the lack of notice in the witness statements, the way the evidence was elicited and the way matters were put to Mr Barclay during cross-examination. It is clear that the practice was far from

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invariable. There were many instances where payment was made well in advance of loading (sometimes in advance of production, sometimes where loading had not been arranged).

[23] I have no difficulty in accepting that the defender’s preparations for proof and its conduct of the proof have been shaped by the admissions which the pursuer made and the case which it pled. It would be unfair and prejudicial to the defender to allow the pursuer to found upon the evidence of practice in order to maintain that the terms of the contracts relating to payment differed from the admitted term. However I accept Mr Walker’s subsidiary submission that the evidence of practice is a relevant factor which will require to be considered when determining whether the pursuer was in breach of its obligations to make payment within a reasonable time. In my opinion it is not necessary for the pursuer to amend its pleadings in order to found upon the evidence of practice for that purpose. On that basis I shall refuse the motion to amend.

Implied term in relation to SWIFT bank drafts

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[24] In para.13 of the joint minute of agreement it is agreed: “The pursuer paid for whisky by instructing its bank to transfer money to the defender’s bank. It confirmed the transfers by sending the defender copies of SWIFT receipts recording inter alia the instructions to transfer and details of which pro formas were being paid by each payment made.”

The defender maintained it was an implied term of each of the contracts that the pursuer would not cancel SWIFT transfers which it had instructed and exhibited to the pursuer. The implication of such a term was said to be necessary in order to give the contract business efficacy. The pursuer did not accept that it was necessary to imply the term desiderated by the defender.

Mr Walker argued that since the defender was not obliged to load the goods until payment had been received the implication of the term was not essential to protect its interests. In any event, the term proposed was wider than was required. The pursuer might have good grounds for cancelling a SWIFT payment.

[25] I am not persuaded that it is necessary in order to give business efficacy to the contracts that the term suggested by the defender requires to be implied.

I do not think that reasonable businessmen in the position of the parties would have considered its inclusion to be both reasonable and necessary (see W. McBryde, The Law of Contract in Scotland, para.9–70 and the authorities there discussed). I reach that conclusion because if the payee was informed immediately of the cancellation it would not place any further reliance on the representation that payment had been made. The representation would no longer be a continuing one.

[26] However I am satisfied that in the whole circumstances business efficacy does require an implied term that where intimation of a SWIFT payment is made but the payment is cancelled, the pursuer is obliged to inform the defender immediately of the cancellation. Reasonable businessmen in the position of the parties would have known that on receipt of evidence that the pursuer had instructed its bank to make a SWIFT payment the defender would be very likely to incur expenditure in relation to the contract and that it might even ship the goods. They would have realised that unless immediate notice of cancellation was given the defender would be likely to continue to take such steps. Whether or not there was in fact a “dirty trick” here (and on the evidence before me I do not conclude that there was) the lack of such an

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2016 S.C.L.R. Glen Clyde Whisky Ltd v Campbell Meyer & Co Ltd (OH) 349 implied term would allow a “dirty trick” to be perpetrated. I am in no doubt that had the parties been asked at the outset whether, in the event of cancellation of a SWIFT, immediate notice should be given they would have said “Yes, of course.” (See McBryde, para.9–71 and the authorities there discussed).

A

The breakdown of the parties’ business relationship

[27] On 24 November 2011 the defender’s production manager, Louise Sloan, sent the pursuer an email headed “Update on loadings” (JB 60). The email stated, inter alia, that the Glen Clyde Whisky purchased by contracts GC4 PF 3-4 was ready to load. In relation to Black Horse Whisky it indicated that the goods for the contracts BH9 PF 21 and BH10 PF11 15 were to be loaded during the week commencing 28 November; that the goods for contracts BH10 PF1-5 were scheduled for loading during the week commencing 5 December; that the goods for contracts BH10PF6-10 were scheduled for loading during the week commencing 12 December; and that the goods for contracts BH11 PF 1-8 were scheduled for loading during the week commencing (sic) 12–19 December. Of those consignments the only ones which had been paid for by 24 November were BH9 PF21 (paid on 1 November 2011) and GC 4 PF3-4 (paid on 7 November 2011). Accordingly, the email had concluded: “We await confirmation of further payments to progress loadings. . . .”

[28] On the same day Liya Ravodina, an import manager with the pursuer, replied. She provided dates for payment of the unpaid orders referred to in Ms Sloan’s email. In several instances the dates Ms Ravodina provided were later than the loading dates which Ms Sloan had given. In relation to BH10 PF 1-10 Ms Ravodina indicated: “we plan to pay w/c 12 December”. Mr McSherry replied the same day pointing out that prepayment was required. On 29 November Ms Ravodina proposed that the defender should ship goods in return for partial prepayment, which proposal was rejected.

[29] On 30 November 2011 the pursuer paid for BH10 PF1, BH10 PF2 and BH10 PF11. On 1 December 2011 it paid for BH10 PF12–PF15.

[30] By 2 December 2011 there were eight contracts for the supply of Black Horse Whisky (BH9 PF21, BH10 PF1-2, BH10 PF11-PF15) and two contracts for the supply of Glen Clyde Whisky (GC4 PF3-4) where the pursuer had paid for the goods but they had not yet been shipped to it.

[31] On 6 December 2011 the pursuer instructed a SWIFT payment be made to the defender’s bank as payment for eight containers of Black Horse Whisky (BH10 PF3≠PF10) and at the same time it emailed the defender a copy of the SWIFT receipt.

[32] On 7 December 2011 Ms Ravodina emailed Mr Barclay: “Dear Colin, “BLACK HORSE “First of all I’d like to remind you that we still have not received the bottling and loading plan for Black Horse. The peremptory date for delivery from BG is 16/12/11.

“Our customer is waiting for the delivery plan today.

“In case you don’t ship goods in established terms we will be forced to stop the order and insist on payment return.”

The email also enclosed the Mr Kemnev’s report dated 6 December 2011, which I shall return to. À propos the shipment of goods to which the report related Ms Ravodina indicated that either the defender should pick up the

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goods and send other goods with properly fixed labels, or it should grant a discount of 20 per cent and provide the pursuer with empty cases and labels.

Ms Ravodina went on to state that there were further large quantities of Glen Clyde Whisky in Moscow (77,524 bottles) and Riga (163,396 bottles). The email concluded in relation to them: “I see only one solution of this problem—you grant us 20 per cent discount for all these goods, send us labels as many as we need and we ourselves remove the defects.

GLEN CLYDE orders “Gerry inquired me when we plan to pay for the following invoices: GC04 2011 PF5 GC04 2011 PF6 GC04 2011 PF7 GC04 2011 PF12 “I’d like to inform you that until we solve the problem with goods that are in Riga and Moscow we should not discuss the payment of any Proforma invoice “Please reply my mail ASAP.” [33] At about the same time Mr Romanov had emailed Mr Barclay in the following terms: “Dear Colin, “Let me know something about paid goods: Order [BH] 9 Prf 21 12x 70cl – paid 30/10/2011 Order [BH] 10 Prfs 11-15 12x 70cl – paid 29/11/2011 (PF11) and 30/11/11 Order [BH] 10 Prfs 1-5 24x 50cl – paid 30/10/2011 (PFs 1,2) and 6/12/11 Order [BH] 10 Prfs 6-10 24x 50cl – paid 6/12/11 “All paid goods must be shipped to Riga the latest 16/12/11 and if you have any problems with bottling I have to know it ASAP.” The goods listed as paid goods included the goods to which the SWIFT receipt of 6/12/11 related.

[34] Mr McSherry emailed Mr Romanov at 12.55 pm on 8 December 2011 stating that the SWIFT payment of £138,570 had not been received in the defender’s bank account; that it awaited payment for GC04 2011 PFs 6, 7 and 12; that in fact all of PF5 and part of PF6, 7 and 12 had already been produced with a total invoice value of £82,068.60 and that on receipt of that payment it would be shipped. He noted that the defender had already purchased materials to the value of £66,597.24 for GC4 2011 PF8, 9, 10, 11 and 13, GC 12YO PF2, GC05 2011 PFs 1-14; and materials to the value of £10,052.89 for BH11. He indicated that the defender intended to invoice the pursuer for the materials it had purchased and would make them available to the pursuer or would purchase them back if payments for the relevant outstanding orders was made. He responded to the Mr Kemnev’s report, refuting the suggestion that 99 per cent of bottles had labels partially peeled off. The email concluded: “Given the current trading position we have placed the (pursuer’s) account on hold.”

[35] Mr Romanov replied by email of 16.03 the same day: “Dear ALL, “I recognise that you are not interested in our further collaboration but we have to be constructive.

“I’d like to offer you following plan of action: “Black Horse

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2016 S.C.L.R. Glen Clyde Whisky Ltd v Campbell Meyer & Co Ltd (OH) 351 1. You bottle and ship all paid PF invoices from orders 9 and 10 before 16/12/11. Unpaid PF we would like to pay by letter of credit against documents.

“Glen Clyde 2. All Glen Clyde (each bottle) produced and ready for shipment in frame of placed orders (Order 4, 5, GC 12YO) should be inspected by independent surveyor.

“After we get the copy of their report that all is OK we’ll confirm the shipment and pay for goods by letter of credit against documents.

3. You give us exact instructions how should be sorted out goods in Riga and Moscow, in whose presence (independent surveyor or without him) and give reference what are you ready to cover basing on the reports of these sorting out.

“Please confirm whether you accept this offer and lets go ahead.”

A

B

[36] At 17.58 the same day Mr Nikolov responded by email: “Dear All, “We are surprised and disappointed that you feel we are not interested in further business together. The following are the facts of the matter: “You notified us on Tuesday that you had instructed a payment of GBP 138,570 and provided a copy of the Swift transfer. We accepted your word on this and proceeded to produce further stock of Black Horse. The payment did not arrive and we have ceased further production.

“You cancelled several orders in the full knowledge that we had purchased the relevant materials necessary to fulfil our commitment to you. You have so far failed to pay for GC stock which we have bottled and for which we have paid labour, materials and whisky.

“You have failed to pay for all the transport costs which have been detailed on the statements sent to you. All these transport costs are in respect of goods already sent to Riga.

“In view of the above we are not in agreement with your request to alter terms to settle accounts by Letter of Credit against documents.

“In order to resolve this matter, and for the business to be fairly concluded, I would propose the following solution: 1. (The pursuer) pays for all the outstanding transport and origination as detailed in the accounts statements 2. (The pursuer) pays for all bottled stock 3. CMC ships all paid stock 4. (The pursuer) pays for all GC and BH material in stock 5. CMC invoices all transport costs in advance of shipment “CMC are prepared in this instance to absorb all the costs incurred and caused by the sudden cancellation of orders at this crucial time of the year subject to settlement of the five points above. CMC will also have to absorb the costs incurred in procuring and transporting the materials and whisky required for production prior to the cancellation of orders.

“I would be grateful if you would give consideration to the foregoing in order to facilitate a fair and reasonable conclusion.”

[37] At 15.26 on 12 December 2011 Ms Ravodina emailed the defender. The email concluded: “Summery (sic) 1. Brand Black Horse belongs to the third part and should be shipped to Riga in terms approved by the client – the latest 20/12/11.

2. At the present moment you have prepayment for 131432.93 GBP. Do you plan to ship paid goods this week or you prefer to return us the payment?

3. We are ready to fulfil our obligations in case you fulfil yours.”

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[38] At 17.09 the same day Mr McSherry replied: “You claim you recalled the promised payment of GBP138570 in the absence of requested information. This is completely untrue as you have always been informed of production and shipping information. You provided your instruction to the bank and we bottled more product in good faith. This is a risk which we took but, unfortunately for us, we did not anticipate you breaking your promise.

“Louise provided a schedule on 24 October and, in fact, containers were sent to Riga for which payment had not yet been received. This was another risk taken by us which should not have been necessary.

“We have already informed you that we have bottled stock of Glen Clyde and Black Horse. This is because we accepted orders from you in good faith which you subsequently cancelled. As a result, we now have stock of finished goods and dry materials which are relevant only to your brands. We repeat that it will be necessary to raise an invoice to you for all these materials and finished goods.

“It is noted that you wish to offset some amounts against the costs we have already paid on orders shipped. This is disappointing as, again, we accepted in good faith that you would settle these transport invoices. In a similar vein it is surely in order for us to offset the costs of the materials we have purchased against some of the goods you have paid.

“CONCLUSION “You will understand that we have no use whatsoever for Black Horse and Glen Clyde materials and finished stock therefore we are obliged to raise an invoice to you for the large quantities remaining in stock. You will also understand that we shall raise invoices in respect of associated costs.

“You may also find that the cost of all GC/BH materials, together with those invoices already raised but unpaid will be greater than the value of those orders which you have part paid. In that event Campbell Meyer & Company will have a deficit.

“Our email of 8 December has the five-point proposal which can resolve the issue. However, it is of (sic) particularly vital that you address the importance of the value of all of the materials we have purchased on your behalf and which are exclusive to your company.

“I look forward to hearing from you.”

[39] Ms Ravodina responded the following day by saying that the goods for BH9 PF21 and BH10 PF 11–15 should have been loaded in the week commencing 28 November; that the claim for bottles and dry materials was “equalized by our claim concerning prepayments”; that the transport costs payment ought to be credited against the sum which had been paid for BH7 12YO which had not been delivered. The email concluded: “In the created situation both of us carry on losses and our further confrontation will just increase them. I’d like to suggest you getting out of the present situation step by step: 1) Shipment of the paid goods (eight containers) the latest 20/12/11 2) Immediate transfer to your account of 35845 GBP for transportation 3) Providing us with the information about BH 12YO 801 cases 4) Providing the information about bottled and ready for shipment unpaid goods 5) Endorsement of buyout terms of bottled products.”

[40] Mr McSherry responded to that email the same day. He noted that the pursuer had not made payment for the BH10 PF 11–15 goods until after the notified loading dates; that the contract terms were for prepayment; that trust

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2016 S.C.L.R. Glen Clyde Whisky Ltd v Campbell Meyer & Co Ltd (OH) 353 had been broken when the SWIFT payment had been cancelled without any notice to the defender; and that the cancellation of orders at very short notice had caused inconvenience and costs. The response concluded: “[I]t is very difficult to accept any promise of payment from you as you are likely to cancel as before. I believe you must show a willingness to co-operate and should firstly pay for all those previous invoices listed on our statement relating to transport, label origination and case origination. . .Only when the payment arrives in our bank can we move to the next stage of despatching products to you. Please let me know what you plan to do at your earliest convenience.”

[41] During December 2011 and January 2012 the defender indicated to the pursuer that it would decant its stocks of cases of bottled Glen Clyde Whisky and Black Horse Whisky unless the parties reached a resolution of their disputes. No such resolution was reached and the defender decanted the whisky. It invoiced the pursuer for costs incurred by it in acquiring goods and materials for the outstanding contracts.

[42] During late 2011 and 2012 the pursuer obtained Glen Clyde Whisky from another supplier, Inver House Distillers. Problems in relation to peeling labels, squint labels and bubbling of labels were also experienced with that supplier. The problems were eventually resolved by Inver House changing the label paper and the substrate adhesive.

A

B

C

Was the defender in breach of contract?

Satisfactory quality?

[43] The pursuer claims that certain of the Glen Clyde Whisky which was supplied by the defender under the contracts of sale was not of satisfactory quality. In this regard it relies upon two reports (JB 77, 86) prepared by Mr Kemnev, and on Mr Kemnev’s evidence (which was given by live link from Riga). Mr Kemnev adopted his witness statement and his supplementary witness statement. He spoke to the terms of his reports.

[44] Mr Kemnev’s initial inspection was carried out on 5 December 2011.

It related to a single container (CRXU 0978185). The container contained goods supplied under contract GC3 PF16 (1286 cases of whisky which were on 22 pallets). In accordance with the pursuer’s instructions Mr Kemnev inspected one case per pallet. He took 68 photographs. On 6 December 2011 he completed a cargo inspection report. The most significant finding was that almost all of the inspected bottles had front labels which were partially peeling off at the edges, but he also noted other problems including squintness of some front and back labels and minor defects to some bottle tops.

[45] Between 28 December 2011 and 6 January 2012 Mr Kemnev inspected 13,052 cases (157,156 bottles) of Glen Clyde whisky in the PLG warehouse at Riga. That represented the unloaded contents of ten containers, including the container from which 22 cases had been opened at the time of his initial inspection. He took 395 photographs. He found that 117,396 bottles had problems with labels peeling off; that 39,572 bottles had front or back labels which were squint to some degree or had air bubbles under the labels; and that relatively small numbers of other bottles exhibited other problems such as minor dents or blemishes to the bottle top.

[46] Miss Crawford submitted that on a proper analysis of the evidence the defender had merely undertaken to supply whisky, bottles, labels and cases to the pursuer’s order; and that it was not a term of the contract that the finished

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product required to be of satisfactory quality. I reject that contention. The contract of sale in each case was for the finished product. The finished product was the goods sold in terms of each contract. It is a matter of admission that it was an implied term of each contract of sale that the goods be of satisfactory quality. It is clear that goods may be of unsatisfactory quality due to defects in labelling or packaging (see e.g. Niblett v Confectioners’ Materials Co Ltd; Gilbert Sharp & Bishop v Wills; Atiyah, The Sale of Goods (11th edn), p.197).

[47] I am satisfied on the basis of Mr Kemnev’s evidence that he did indeed discover the matters which he spoke to when he carried out his inspections.

The issue is whether because of those defects the affected goods were not of satisfactory quality.

[48] Subsections 14(2A) and (2B) of the Sale of Goods Act 1979 (as substituted by the Sale and Supply of Goods Act 1994, section 1(1)) provide: [His Lordship quoted the sections as set out above and continued:] [49] Mr Walker suggested that the market for Glen Clyde Whisky in Russia was a luxury market. I am not persuaded that I should approach matters on that basis having regard to the evidence as a whole, including the price paid by the pursuer to the defender and Mr Romanov’s own description of Glen Clyde Whisky as “a middle of the range blended product” (para.6 of his witness statement). However, it was certainly not “a low sector entry level whisky” like Black Horse Whisky (para.7 of the same statement). There is no doubt that Glen Clyde Whisky’s profile was important to the pursuer. It spent significant time, effort and expense trying to create a presentation of the product which suggested that it was a premium blended whisky.

[50] For her part Miss Crawford urged me to have regard to the fact that such problems as there were with label peeling, bubbling or squint application were substantially attributable to the pursuer having specified bottle and label designs and materials which made it very difficult to attain a perfect and identical result with every bottle. She emphasised that in any production process a certain variation was inevitable. No tolerance limits for label positioning had been specified in the contracts. Satisfactory quality did not mean that each label required to be perfectly applied. It was relevant to have regard to the fact that none of the goods had been rejected. The pursuer’s warehousemen in Riga, PLG, had been able to remedy the problems with the labels at a relatively modest cost (0.04 euro per bottle for checking and sorting and 0.04 euro per bottle for manual processing of the bottle labels).

[51] While I agree that the bottle and label designs came from the pursuer and its specialist advisers, the defender had not insignificant input in discussions relating to the choice of paper and adhesive for the labels. In any case, the defender undertook to supply a finished product of satisfactory quality. In the whole circumstances I have no doubt that a reasonable person acquainted with all of the facts of the case (and in particular one in the position of the buyer with its knowledge) would not regard the bottles which had peeling labels as being of satisfactory quality. The peeling would be noticeable to wholesalers, retailers and consumers and would tend to make the bottles concerned look more like a basic rather than a premium product. I reach that conclusion notwithstanding that the cost of remedying the label defects was relatively small. Cost is not the only consideration. The time required to remedy the problem, and the resultant delay in having a product ready for the market, are not insignificant factors.

[52] I am less convinced in relation to the complaints of squint application of labels. Mr Kemnev described affected bottles as having front labels which deviated two to three millimetres from the centre line, with the deviation in

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2016 S.C.L.R. Glen Clyde Whisky Ltd v Campbell Meyer & Co Ltd (OH) 355 some cases being up to five millimetres. He had identified offending bottles simply by visual examination. I agree with Miss Crawford that it is not necessary for labels to be perfectly positioned on a bottle for the goods to be of satisfactory quality. With the best will in the world, some degree of variation and deviation from perfect alignment is likely to be almost inevitable in any production process. In this regard I accept the unchallenged evidence of Mr Barclay that a variation of plus or minus 1mm would be a very good result.

In relation to front labels, I think that a reasonable person acquainted with all the facts would not regard a bottle as being of unsatisfactory quality unless the misalignment was clearly noticeable. Most of the examples of squint front labels in the photographs do not appear to me to fall into the category of being clearly noticeable. Those which are clearly squint are likely to be the ones where the deviation is nearer the top than the bottom of the range Mr Kemnev identified. It is also far less likely that a deviation in relation to a back label would be regarded as significant. Its position at the back of the bottle means that it would be much less important. It would not be evident to the eye when displayed on a shop shelf. I think that it would only be in a fairly extreme case that misalignment of a back label would result in a goods not being of satisfactory quality. Very few of the back labels which have been photographed appear to me to fall into such a category.

[53] So far as the other reported visual defects are concerned, if air bubbling under a front label was readily noticeable it would be likely to make the bottle of unsatisfactory quality. I doubt however if minor bubbling under a back label would have that effect. Nor do I think that very minor dents or blemishes to a bottle cap would be likely to have that result.

[54] It follows that the 117,396 bottles which Mr Kemnev identified as having peeling labels were not of satisfactory quality. In addition, a proportion of the 39,748 bottles which he identified as having squint labels, air bubbles under labels, or damaged bottle tops were also of unsatisfactory quality: but I am not persuaded that anything like the majority of them fell into that category.

On the evidence led it is very difficult to be more precise than that. As a matter of broad general impression it seemed to me that perhaps only about onequarter to one-third of the photographs which were put forward as providing examples of defects other than peeling labels demonstrated significant defects which resulted in bottles not being of satisfactory quality.

[55] The above findings relate only to the ten containers which Mr Kemnev examined. The pursuer’s claim for damages is in relation to breach of the implied term of each of these ten contracts that the goods be of satisfactory quality. The claim is for the remedial costs of 12,782.08 euro incurred to PLG. While Mr Romanov did indicate that further bottles of Glen Clyde Whisky in the pursuer’s Moscow warehouse suffered from similar label defects (and that the pursuer remedied these defects itself), no case of breach of contract and no claim for damages were advanced in relation to those bottles.

[56] I am satisfied that where bottles were not of satisfactory quality in the respect(s) described the defender was in breach of contract, and that the breach was not a trivial breach. Whether the breach was a material breach which would have entitled the pursuer to reject the goods is more moot. There is a colourable argument that it was not, having regard in particular to the nature and extent of the defects and to the relatively modest costs of remedying them, and to the fact that the pursuer did not reject any of the goods in the ten containers (or indeed any other goods which the defender supplied).

Mr Romanov’s evidence was that the goods were remedied and sold. He suggested that in some instances sales may have been at a discount. On the

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other hand, as already noted, the pursuer had made significant efforts to present Glen Clyde Whisky as being a premium blended whisky. While the matter is somewhat finely balanced, I think that the better view in the whole circumstances is that the breach was a material breach.

Goods paid for but not supplied

B

C

D

E

F

G

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[57] The goods purchased under contract BH9 PF21 had been paid for in 1 November 2011. Those purchased under contracts GC4 PF3 and GC4 PF4 had been paid for on 7 November 2011. According to the defender all three consignments had been produced and were ready to load as at 24 November 2011. In those circumstances I consider that a reasonable time after payment for supply of those goods had passed by 8 December 2011. The defender was accordingly in breach of those contracts unless he was entitled to suspend performance of his obligation to supply. On the other hand, in relation to the orders which were paid for on 30 November 2011 (BH10 PF1, PF2 and PF11) and 1 December 2011 (BH10 PH12–15) a period of only one week had passed since payment had been made. With those contracts a reasonable period after payment for delivery had not expired by 8 December 2011. The defender will only have been in breach in relation to those contracts if its subsequent withholding of performance was unjustified.

[58] The defender submits that it was entitled to withhold performance of its obligations to deliver goods. It contends that the pursuer was in breach of its obligation to make payment for the Black Horse Whisky under contracts BH10 PF 3–10, as its cancellation of the SWIFT payment for those contracts demonstrated. It maintains that because of that breach it was entitled to suspend performance of its obligations to supply the whisky sold under the earlier contracts. It relies upon the mutuality principle.

[59] In my opinion the defender’s reliance on that principle is clearly illfounded. In the contracts where the defender withheld performance of its obligations to supply goods the pursuer had duly performed its corresponding obligations to pay for the goods. It was entitled to have the goods supplied.

There was no legitimate basis for the defender to suspend performance of its obligations to supply those goods. The alleged failure of performance relied upon related to other distinct contracts. Nothing in the terms of any of the contracts or in the surrounding circumstances indicates an intention that the defender’s obligations to supply the goods under a particular contract should be dependant not only upon payment of the price for those goods being made, but also upon payment of the price being made for goods to be supplied under other contracts. The obligations which the defender withheld performance of and the obligations of the pursuer which the defender says were not performed were not concurrent obligations. In each case the pursuer’s obligation to make payment had as its counterpart the defender’s obligation to supply the goods purchased. The pursuer’s obligations to make payment for the goods sold under contracts BH10 PF 3–10 and the defender’s obligations to supply the goods purchased under contracts BH9 PF21, GC4 PF 3–4, BH10 PF1–2, 11 and 12–15 were not corresponding or reciprocal obligations: see Bank of East Asia Ltd v Scottish Enterprise, per Lord Jauncey at pp.1217H– 1218C; Macari v Celtic Football and Athletic Co Ltd, per Lord President Rodger at pp.639E–642 E, per Lord Caplan at page 650D-E; McNeill v Aberdeen City Council, per Lord Drummond Young at paras 26–30; McBryde, paras 20-44–20-56.

[60] It follows that the defender was not entitled to withhold performance of its obligations to supply the goods which the pursuer had paid for. Its

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2016 S.C.L.R. Glen Clyde Whisky Ltd v Campbell Meyer & Co Ltd (OH) 357 withholding of that performance was a material breach of each of the contracts BH10 PF 3–10. It is plain that the pursuer accepted that repudiation and rescinded those contracts. It demanded repetition of the purchase price paid.

In this action it seeks repetition and damages for breach of those contracts.

A

Anticipatory breach?

[61] I did not understand Mr Walker to suggest that the defender had been in anticipatory breach of the other unperformed contracts. In my opinion he was correct not to do so. On the evidence there is no basis for maintaining that anything the defender said or did indicated unequivocally that it did not intend to perform its obligations under those contracts. The fact that the defender had previously supplied Glen Clyde Whisky which was not of satisfactory quality did not indicate unequivocally an intention on its part not to perform its obligations under other contracts. The fact that the defender had not supplied goods in the BH9 PF21, BH10 PF1–2, 11 and 12–15, and GC4 PF 3–4 contracts did not amount to a declaration that in other contracts it would fail to deliver goods within a reasonable time of payment. Putting the pursuer’s account “on hold” after the cancellation of the SWIFT payment was not an abandonment of the contracts.

B

C

Was the pursuer in breach of contract?

Contracts BH10 PF 3–10

[62] The contracts for sale of Black Horse Whisky BH10 PF 3–10 had been concluded on 28 September 2011 when the defender issued the relevant pro forma invoices accepting the pursuer’s offer to purchase the goods. On 24 November 2011 the defender had indicated that goods for contracts BH10 PF 3–5 were scheduled for loading during the week commencing 5 December 2011 and that goods for contracts BH10 PF 6–10 were scheduled for loading during the week commencing 12 December 2011. The pursuer did not instruct a SWIFT payment for PF 3–10 until 6 December 2011.

[63] I accept Mr McSherry’s evidence that usually SWIFT transfers from the pursuer were received by the defender’s bank within 24 hours of their instruction. I found it surprising that the pursuer appeared not to be in a position to lead evidence which showed more precisely when the SWIFT instruction was cancelled.The evidence of both Mr Romanov and Ms Kalugina on this issue was less than satisfactory. Initially rather vague and evasive on the matter, when pressed Mr Romanov indicated he could not recall for sure when the SWIFT was cancelled; but that he believed it was “several days” after 6 December 2011. That cannot be correct as it is plain that the very latest time at which it could have been cancelled was 8 December 2011.

[64] Mr Romanov was still pressing for delivery of the BH10 PF3–10 goods at 17.16 on 7 December (JB 78). Ms Kalugina, while specific in relation to most other matters, said that given the passage of time she simply could not remember precisely when the SWIFT had been cancelled. It struck me as strange—and rather convenient for the pursuer—that the evidence of both witnesses was unhelpful on this issue.

[65] In para.40 of his witness statement Mr Romanov stated in relation to cancellation of the SWIFT payment: “The reason we cancelled the payment was because the previous goods we had paid for had not been sent and no delivery date had been provided or confirmed.”

D

E

F

G

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B

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D

In the course of his oral evidence he indicated that that had been the main reason; but the fact that defects had been found on Mr Kemnev’s first inspection which the defender did not appear to be taking appropriate steps to deal with had also been a consideration.

[66] Mr Romanov seemed to consider that it was acceptable to cancel the SWIFT payment without giving the defender notice. In my opinion it was not, and it is unsurprising that the defender took a dim view of it. Even if the SWIFT was cancelled after Mr Romanov’s email of 17.16 on 7 December, it ought to have been plain to him that the defender might be incurring costs on the strength of the SWIFT; and that the goods might even be shipped before the defender became aware of the cancellation. In failing to give the defender immediate notice of the cancellation the pursuer was in breach of the implied term of each of contracts BH10 PF3–10 that such notice should be given. The breach was not a trivial breach. However, in my opinion it was not a material breach which entitled the defender to rescind those contracts.

[67] As at 8 December 2011 was the pursuer in breach of its obligations to make payment within a reasonable time after the conclusion of each of the contracts? As already indicated, I agree with Mr Walker that in answering that question it is appropriate to have regard to the parties’ practice. I have already set out my findings on that matter. Estimated shipping dates had been provided in Ms Sloan’s email of 24 November 2011—loading for BH10 PF3–5 during the week commencing 5 December 2011 and for BH10 PF 6–10 during the week commencing 12 December 2011. Given that the estimate entailed BH10 PF3–5 being loaded at the latest by 11 December 2011 and BH10 PF 6–10 at the latest by18 December 2011, payment for the earlier consignment during the period between 27 November and 6 December and for the later consignment between 4 and 13 December would have accorded with the parties’ practice. In those circumstances, while I am satisfied that the payments had fallen due by 6–8 December, I am not satisfied that at that point the pursuer was in breach of its obligations to make payment within a reasonable time.

Was the pursuer entitled to withhold performance?

E

F

G

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[68] The pursuer contends that from about 6–8 December 2011 it was entitled to withhold performance of its payment obligations under BH10 PF3–10 because: (i) the defender had not performed its obligations to supply the goods which the pursuer had paid for (BH9 PF21, BH10 PF 1, 2, 11, 12–15, and GC4 PF 3–4); and (ii) the Glen Clyde Whisky examined by Mr Kemnev on 5 December 2011 was not of satisfactory quality and the defender had not made any adequate proposals to remedy that problem. I reject the pursuer’s contention for reasons similar to those which led me to reject the defender’s claim to withhold performance of its obligations to supply the goods. The alleged failures of performance upon which the pursuer relies relate to distinct contracts. Nothing in the terms of those contracts or their surrounding circumstances, or in the terms of the contracts where the pursuer seeks to withhold performance or their surrounding circumstances, indicates an intention on the part of the parties that the defender’s obligations to supply the goods under contracts BH9 PF21, BH10 PF 1, 2, 11, 12–15 and GC4 PF3–4 and the pursuer’s obligations to pay the price under different contracts were to be counterpart obligations. The obligations which the pursuer withheld performance of and the obligations of the defender which the pursuer says were not performed were not concurrent obligations. The fact that certain of the goods under an earlier contract for the sale of Glen Clyde Whisky may

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2016 S.C.L.R. Glen Clyde Whisky Ltd v Campbell Meyer & Co Ltd (OH) 359 have been of unsatisfactory quality did not entitle the pursuer to withhold performance of later, distinct contracts relating to (a) Glen Clyde Whisky, or (b) Black Horse Whisky. The fact that the defender had not yet performed its obligations to supply goods under contracts where the pursuer had paid the price did not entitle the pursuer to withhold performance of its payment obligations under distinct contracts for the purchase of Glen Clyde Whisky and Black Horse Whisky.

[69] The pursuer’s withholding of payment was wrongful and was a material breach of the BH10 PF3–10 contracts.

A

B

Was the pursuer in anticipatory breach?

[70] In my opinion the cancellation of the SWIFT taken together with the pursuer’s subsequent correspondence was also an anticipatory material breach by the pursuer of the BH10 PF3–10 contracts. Further, it was an anticipatory material breach of all the other contracts where payment had not been made.

The cancellation and the subsequent correspondence indicated clearly and unambiguously that the pursuer did not intend to honour its contractual obligations. The pursuer made it plain that it was no longer prepared to comply with the contract terms anent prepayment; that it was only prepared to make payment by letter of credit against shipping documents; and that in relation to Glen Clyde Whisky it was also not prepared to make payment unless and until goods had been inspected and passed by an independent surveyor.

C

Rescission

[71] In my opinion for these reasons the pursuer repudiated all of the contracts where it had not made payment. It is clear that the defender accepted the repudiation and that it rescinded those contracts. It ceased production and treated the trading relationship as having ended. It invoiced the pursuer for goods and materials which it had obtained in order to carry out the contracts.

It indicated that it intended to disgorge cases of Black Horse Whisky and Glen Clyde Whisky which had already been produced, and in due course it did so.

It advanced its counterclaim for damages in respect of the pursuer’s breach of contract.

Conclusions

[72] The defender was in material breach of contract GC3 PF16 in that a substantial proportion of the goods supplied were not of satisfactory quality.

[73] The defender was also in material breach of contracts BH9 PF21; BH10 PF 1, 2, 11, 12–15; and GC4 PF 3–4. It was not entitled to withhold performance of its obligations to supply the goods purchased under those contracts. The pursuer accepted the defender’s repudiation and rescinded those contracts.

[74] In relation to contracts BH10 PF3–10, the pursuer was in breach of the implied term that the defender be given immediate notice of cancellation of a SWIFT payment. In each case the breach was not a trivial breach, but it was not a material breach.

[75] The pursuer was not entitled to withhold performance of its payment obligations under contracts BH10 PF3–10. The wrongful withholding was a material breach of contract.

[76] The pursuer was in anticipatory material breach of all the contracts where it had not made payment. It indicated unequivocally that it did not intend to comply with its prepayment obligations under those contracts.

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[77] The defender accepted the pursuer’s repudiation of the contracts where payment had not been made and rescinded them.

Remedies

B

C

[78] During the course of her submissions Miss Crawford briefly touched upon the question of the defender’s remedies for the pursuer’s breaches of contract. Under reference to Lloyds Bank v Bamberger she advanced an argument that, notwithstanding the defender’s rescission of the contracts where payment had not been made, the defender remained entitled to seek payment of the contract price in some of the contracts. In those contracts she submitted that the defender’s right to payment had accrued before rescission.

Mr Walker made a short submission in response. It is unnecessary that I record it here. The submissions were not fully developed on either side; and, since it appears to me that the restricted proof which was allowed did not extend to the question of remedies, it is not appropriate to say more on the topic at this stage.

Disposal

[79] I shall put the case out by order for parties to address me as to: (i) the terms of an appropriate interlocutor to give effect to my decision; and (ii) further procedure. I reserve meantime all questions of expenses.

For the pursuer: Walker, instructed by MacRoberts LLP, Solicitors, Edinburgh.

For the defenders: Crawford QC, McConnell, instructed by Maclay Murray & Spens LLP, Solicitors, Edinburgh.

D

E

F

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Mental health— Failure to draft regulations LS, Petitioner (OH) 279

Contract— Breach of contract—Whether third party owed contractual duty STV Central Ltd v Semple Fraser LLP (in liquidation) (IH) 259

Parent and child— Children’s hearing—Whether ill-treatment ‘wilful’ JM v Locality Reporter, Glasgow (IH) 308

Sale of goods—Whether material breach Glen Clyde Whisky Ltd v Campbell Meyer & Co Ltd (OH) 341 Human rights— Prisoners’ mail Beggs, Petitioner (OH) 328 Immigration— Asylum—Appeal—Whether compelling reason HH v Secretary of State for the Home Department (IH) 235

Reparation— Negligence—Fire Service clearing snow from roof Mackay v Scottish Fire and Rescue Service (OH) 249 Negligence—Whether third party owed delictual duty STV Central Ltd v Semple Fraser LLP (in liquidation) (IH) 259 Town and Country planning— Appeal—Whether procedure unfair Brown v Scottish Ministers (IH) 297

June 2016 2016 S.C.L.R. 235−360

SCOTTISH CIVIL LAW REPORTS

Agency— Actual authority Ronald v The Duke of Buccleuch (OH) 289

2016 S.C.L.R. 235–360

Scottish Civil Law Reports Edited by Sheriff Michael J Fletcher Beggs, Petitioner (OH) 328 Brown v Scottish Ministers (IH) 297 Glen Clyde Whisky Ltd v Campbell Meyer & Co Ltd (OH) 341 HH v Secretary of State for the Home Department (IH) 235 JM v Locality Reporter, Glasgow (IH) 308

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LS, Petitioner (OH) 279 Mackay v Scottish Fire and Rescue Service (OH) 249 Ronald v The Duke of Buccleuch (OH) 289 STV Central Ltd v Semple Fraser LLP (in liquidation) (IH) 259