Scottish Civil Law Reports, Issue 2, April 2017

Bankruptcy— Trust deed—Final distribution Dooneen Ltd t/a McGinnes Associates v Mond (IH) 199 Contract— Construction of contract Tait v RGM Solicitors (IH) 206

Jury trial Allan v Plexus Corp (UK) Ltd (Sh Ct) 214 Recovery of documents Cumming v Tayside Health Board (OH) 176 Reparation— Duty of care—Whether negligence proved MacLeod’s Representatives v Highland Health Board (IH) 115

SCOTTISH CIVIL LAW REPORTS

Dentist— Professional misconduct—Fitness to practise Professional Standards Authority for Health and Social Care v General Dental Council (IH) 185

April 2017 2017 S.C.L.R. 115−220

Process— Form of judgment—Delay in issuing judgment—Whether reasons adequate MacLeod’s Representatives v Highland Health Board (IH) 115

2017 S.C.L.R. 115–220

Scottish Civil Law Reports Edited by Sheriff Michael J Fletcher Allan v Plexus Corp (UK) Ltd (Sh Ct) Cumming v Tayside Health Board (OH) Dooneen Ltd t/a McGinnes Associates v Mond (IH)

*711749*

214 176 199

MacLeod’s Representatives v Highland Health Board (IH) 115 Professional Standards Authority for Health and Social Care v General Dental Council (IH) 185 Tait v RGM Solicitors (IH) 206

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A COURT OF SESSION

7 April 2016

Inner House (Extra Division) Lord Brodie, Lady Dorrian and Lord Drummond Young JACQUELINE MACLEOD and ANDREW DUNCAN MACLEOD (as representatives of Rowan MacLeod) Pursuers (Reclaimers)

B

against HIGHLAND HEALTH BOARD

Defender (Respondent)

Process—Form of judgment—Excessive delay in issuing judgment— Comments on proper form of judgment—Whether reasons adequate—Whether cause should be remitted to Outer House to be re-heard—Procedure to be followed if judgment inadequate

C

Reparation—Duty of care—Medical negligence—Whether negligence proved The parents of a child who was born by Caesarean section in Raigmore Hospital and suffered catastrophic perinatal injury in the form of hypoxic brain damage by reason of a period of chronic partial asphyxia before delivery and then a period of acute profound asphyxia after delivery and during resuscitation claimed that that had been caused by fault and negligence on the part of those responsible for her care in the period of about four hours before her birth. She suffered cerebral palsy with a quadriplegic distribution. The pursuers sought to prove that there had been negligent delay on the part of the defender in delivering the child by Caesarean section and in negligently interpreting the results of CTG monitoring and thus failing to detect her hypoxic state early enough. After proof lasting 22 days and concluding on 6 December 2012 and a hearing on submissions assisted by a written submissions extending in total to 218 pages with a hearing lasting for three days, the Lord Ordinary made avizandum on 7 February 2013. On 24 January 2014 he issued his opinion in which he granted absolvitor. The pursuers reclaimed.

At the reclaiming motion the pursuers’ submission was that the opinion of the Lord Ordinary had failed to give adequate reasons for his decision and that the absence of adequate reasons, taken with the excessive delay on the part of the Lord Ordinary producing his opinion, meant that there had not been a fair trial of the issues and the interlocutor should be recalled. The pursuers argued that in the event of the interlocutor being recalled the case should be remitted back to the Outer House for a rehearing of the evidence before a different Lord Ordinary. The court was not invited to evaluate the evidence with a view to coming to its own conclusion on fault and causation.

The issues raised in the reclaiming motion were: (1) whether on the basis of the criticisms of the Lord Ordinary’s opinion advanced by the pursuers the court was satisfied that the interlocutor was open to be recalled; and (2) whether the disposal proposed by the pursuers to remit to the Outer House was competent.

The pursuers set out a number of grounds of appeal which included: (1) an allegation that the Lord Ordinary’s opinion did not constitute a reasoned opinion and the absence of a reasoned opinion meant that there had not been a fair trial of the issues. Various reasons were given for saying that the opinion did not amount to a reasoned opinion including excessive delay in issuing the

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opinion, failing to provide reasons for the factual narrative, failing to give a proper explanation as to why the evidence of some witnesses was preferred to be evidence of others, and insufficient explanation to demonstrate that the Lord Ordinary had an adequate grasp of the relevant medical science; and (2) a series of alleged errors in law relating to failures adequately to explain findings in law and in fact.

In relation to the delay in issuing the opinion counsel for the pursuers argued that once the judge’s recollection of the witnesses and the immediacy and atmosphere of the proof had been lost it could not be said that there had been a fair hearing.

Counsel for the defender argued that the findings of fact by the judge at first instance were not to be set aside simply because the judgment was seriously delayed it would be unfairly prejudicial to the blameless defender who might in any event have succeeded had there been no delay.

In relation to the failure to give adequate reasons for coming to the conclusions in relation to the evidence it was argued that the Lord Ordinary’s opinion was completely inadequate as an explanation of why he had come to the conclusions that he had. The opinion should identify the findings in fact in relation to the matters in issue and explain why they were made. A failure by a judge of first instance to give reasons for a conclusion essential to his decision was a freestanding ground of appeal. The Court of Appeal had warned against an appellate court attempting to work out why the lower court had decided as it did. Counsel for the appellant maintained that the Lord Ordinary had not understood certain parts of the evidence, had wrongly suggested that there was insufficient evidence, and had failed to provide assessments of the witnesses to explain his acceptance or rejection of their evidence. He also criticised specific findings in fact specifically because the Lord Ordinary had not set out the relevant evidence supporting the findings.

Further, the Lord Ordinary had failed to make findings in fact in relation to important areas of controversy at proof, including the question as to whether the foetal heart rate trace had been looked at between important times round about the birth and what had been shown on the trace at the time.

Counsel for the pursuer also argued that the Lord Ordinary had failed to explain why he had rejected the pursuers’ four cases of fault.

In the event that the court agreed that the decision was inadequate and should be recalled and the whole matter remitted to a second judge to determine it anew. Instead of adopting a two-stage decision-making process the court was invited to stop at stage one and the process of determining the issues would start again before a different Lord Ordinary who would conduct a fresh proof and that was the only course which was argued.

Counsel for the defender argued that it was sufficient for reasons to be adequate if parties were able to understand why a particular decision had been reached; why one party had won and the other had lost and not every item of evidence required to be minutely examined. Where the allegation was one of clinical negligence. It was open to the judge to determine the issue of fault on the basis of the defender’s expert evidence where there was no rational basis for discounting it. The appellate court was bound in the absence of compelling reason to the contrary, to assume that the Lord Ordinary had taken the whole of the evidence into consideration. There was no basis upon which to interfere with his conclusions unless it was possible to conclude that he was so clearly wrong that an alternative judgment on the facts ought to be substituted.

In relation to the suggestion that the Lord Ordinary had failed to deal with important matters of controversy, counsel for the defender argued that he had been entitled to conclude that there was insufficient evidence to support a finding in relation to that matter.

In relation to the procedure to be adopted by the court, counsel argued that the procedure suggested by the pursuers was incompetent and wholly inappropriate.

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 117 Held (1) that the defender would almost inevitably have succeeded on a proper consideration of the evidence (para.124); (2) that it was accepted by the court that the time taken for the issue of the Lord Ordinary’s opinion had been excessive (para.148); (3) that the Lord Ordinary’s opinion did not provide adequate reasons for his decision (para.149); (4) that the first proposition that the pursuers had to establish was that the Lord Ordinary’s opinion was so flawed that his interlocutor might properly be recalled and the pursuers had established that proposition, but that only took the pursuers so far and a reclaiming motion against an interlocutor of the Lord Ordinary pronounced after proof involved two-stage decision-making process of which the first stage was to scrutinise the Lord Ordinary’s decision and where as a result of that scrutiny the Inner House had come to the view for example, that the reasons given by the trial judge were not satisfactory, that led to a second stage, at which the matter would then become at large for the appellate court in the sense that it became open to the Inner House to reconsider and determine the issues, including the issues of fact, which had originally been before the Lord Ordinary (para.150); and (5) that not only was the pursuers’ proposed disposal entirely unprecedented, it was unnecessary, and it followed that whatever view one took of the extent of the inherent power of the court, the only course that the pursuers had invited the court to take in the instant case was incompetent (para.162); and reclaiming motion refused.

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Cases referred to: AMN Group Ltd v Gilcomston North Ltd [2008] CSOH 90; (O.H.) 2009 S.C.L.R. 1; 2008 S.L.T. 835 Antigua Power Co Ltd v Attorney General of Antigua and Barbuda [2013] UKPC 23 Anya v University of Oxford [2001] EWCA Civ 405; [2001] I.C.R. 847 Berry v United Kingdom [2007] ECHR 498 Bolitho v City and Hackney Health Authority [1998] A.C. 232; [1997] 3 W.L.R. 1151; [1997] 4 All E.R. 771 Bond v Dunster Properties Ltd [2011] EWCA Civ 455; (2011) 108 (19) L.S.G. 21 Campbell v Borders Health Board [2011] CSOH 73 Clippens Oil Co Ltd v Edinburgh and District Water Trustees (1905) 8 F. 731 Compania Martiartu v Royal Exchange Assurance Corp [1923] 1 K.B. 650; (1922) 13 Ll. L. Rep. 298 Coyle v Lanarkshire Health Board [2013] CSOH 167 Dingley v The Chief Constable of Strathclyde Police, 1998 S.C. 548 Duncan v Wilson, 1940 S.C. 221; 1940 S.L.T. 186 Eckersley v Binnie (1988) 18 Con. L.R. 1 English v Emery Reimbould & Strick Ltd [2002] EWCA Civ 605; [2002] 1 W.L.R. 2409; [2002] 3 All E.R. 385 Flannery v Halifax Estate Agencies Ltd [2000] 1 W.L.R. 377; [2000] 1 All E.R. 373 G v Greater Glasgow Health Board [2013] CSOH 145 Goose v Wilson Sandford & Co [1998] T.L.R. 85 Hall v Associated Newspapers Ltd, 1979 J.C. 1; 1978 S.L.T. 241 Heffer v Tiffin Green, Times, 28 December 1998 Henderson v Foxworth Investments Ltd [2014] UKSC 41; (S.C.) 2014 S.C.L.R. 692; 2014 S.C. (U.K.S.C.) 203; 2014 S.L.T. 775 Hepburn v Royal Alexandra Hospital NHS Trust [2010] CSIH 71; 2011 S.C. 20; 2010 S.L.T. 1071

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Hewat v Edinburgh Corporation, 1944 S.C. 30; 1944 S.L.T. 193 Honisz v Lothian Health Board [2006] CSOH 24; 2008 S.C. 235 Hunter v Hanley, 1955 S.C. 200; 1955 S.L.T. 213 Hvalfangerselskapet Polaris A/S v Unilever (1933) 46 Ll. L. Rep. 29 Karanakaran v Secretary of State for the Home Department [2000] 3 All E.R. 449 Langsam v Beachcroft LLP [2012] EWCA Civ 1230 Longworth v Yelverton (1865) 3 M. 645 McCourt v HM Advocate [2012] HCJAC 32; 2012 S.C.C.R. 411; 2012 J.C. 336 McGlinchey v General Motors UK Ltd [2012] CSIH 91 Mackay v Mackayi, 1946 S.C. 78; 1946 S.L.T. 137 Manning v King’s College Hospital NHS Trust [2009] EWCA Civ 832; (2009) 110 B.M.L.R. 175 Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634; [1985] 1 All E.R. 635 Montgomery v Lothian Health Board [2015] UKSC 11; (S.C.) 2015 S.C.L.R. 315; 2015 S.C. (U.K.S.C.) 63; 2015 S.L.T. 189 Rankin v Jack [2010] CSOH 48; 2010 S.C. 642 Reid v Haldane’s Trustees (1891) 18 R. 744 Rieley v Kinslaw Riding School, 1975 S.C. 28; 1975 S.L.T. (Notes) 14 Scottish Ministers v Stirton [2014] CSIH 92; (I.H.) 2015 S.C.L.R. 350 Taylor Clark Leisure v HM Commissioners for Revenue and Customs [2015] CSIH 32; (I.H.) 2016 S.C.L.R. 38; 2015 S.C. 598; 2015 S.L.T. 281 The Popi M [1985] 1 W.L.R. 948; [1985] 2 All E.R. 712 Thomas v Thomas, 1947 S.C. (H.L.) 45; 1948 S.L.T. 2; 1947 S.L.T. (Notes) 53 Thomson v Glasgow Corporation, 1962 S.C. (H.L.) 36; 1962 S.L.T. 105 Tonner v Reiach & Hall [2007] CSIH 48; (I.H.) 2007 S.C.L.R. 754; 2008 S.C. 1; 2007 S.L.T. 1183 Toremar v CGU Bonus Ltd [2009] CSOH 78 Vitruvia Steamship Co Ltd v Ropner Shipping Co Ltd (No.2), 1925 S.C. (H.L.) 1; 1925 S.L.T. 341 W v Greater Glasgow Health Board [2015] CSOH 99 Wallace v Glasgow City Council [2011] CSIH 57 Whitehouse v Strathclyde Regional Council, 18 February 1986 Yuill v Yuill [1945] P. 45.

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 7 April 2016.

LORD BRODIE Introduction

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[1] The first pursuer is the mother and the second pursuer is the father of Rowan MacLeod who was born by way of Caesarean section at Raigmore Hospital, Inverness, at about 02.02 hours on 2 June 1999. They sue in the capacity of Rowan’s legal representatives. It is their contention that Rowan suffered catastrophic perinatal injury in the form of hypoxic brain damage by reason of a period of chronic partial asphyxia before delivery and then a period of acute profound asphyxia after delivery and during resuscitation, and that this was caused by fault and negligence on the part of those responsible for the first pursuer’s care in the period of about four hours immediately preceding Rowan’s birth.

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 119 [2] Rowan has cerebral palsy with a quadriplegic distribution. She is completely dependent for all activities of daily living. She will never be able to live independently. The sum sued for is £10.5 million. The defender is Highland Health Board. It is sued as having responsibility for Raigmore Hospital and for the acts and omissions of staff employed at the hospital at the material time.

[3] The summons in the action was signeted on 16 April 2008. The action came before the Lord Ordinary for proof, restricted to the issues of liability and causation of damage, on 30 October 2012. Evidence was led over 22 days, concluding on 6 December 2012. At this stage only the first pursuer represented Rowan (the second pursuer being joined in the action, also as a legal representative of Rowan by amendment in August 2015). Following the leading of evidence, the Lord Ordinary was provided with written and oral submissions on behalf of the parties. These were delivered over three days. A feature of the written submissions on behalf of both parties is their length and consequent detail. The submission for the pursuer extended over 79 pages.

The submission for the defender extended over 139 pages, in addition to which the defender provided a supplementary submission of 36 pages. The Lord Ordinary made avizandum on 7 February 2013. On 23 January 2014 he issued his opinion in terms of which he sustained the second and third pleasin-law for the defender and assoilzied it from the conclusions of the summons.

[4] The pursuers have reclaimed.

[5] The reclaiming motion was heard on 29 and 30 September and 1, 2, 7, 8, 9 and 13 October 2015, on which last date the court made avizandum. The court was addressed by senior and junior counsel. Both parties had lodged substantial written notes of argument which they adopted.

[6] In this opinion we shall refer to the reclaimers as the pursuers (and, where appropriate, as the first and the second pursuer, respectively), and to the respondent as the defender. Whereas at proof there was but one pursuer and all corresponding references prior to August 2015 reflect that, all references in this opinion, including those to the proof, will reflect the amended instance.

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The pursuers’ case in brief At proof

[7] The pursuers’ case at proof was one of negligent delay on the part of the defender in circumstances where Rowan’s hypoxic condition in utero, as should have been apparent from properly conducted cardiotocographic (CTG) monitoring, mandated urgent delivery by Caesarean section. The first pursuer had been admitted to the labour ward at about 18.10 hours on 1 June 1999 by which time her labour had started. However, labour did not sufficiently progress despite the administration of medication with a view to increasing the frequency of contractions. At 00.35 hours on 2 June the obstetric registrar responsible for the supervision of the first pursuer’s care (Dr Amy Sharkey) noted that the first pursuer was probably not deliverable vaginally. At about this time (00.50 or earlier) Dr Sharkey discussed the case by telephone with Dr Michael Hulse, the consultant obstetrician on call (who was then at home).

Dr Hulse instructed Dr Sharkey to perform a Caesarean section. That decision was made on the basis of failure to progress with labour rather than by reason of foetal distress. Accordingly, the time from decision to delivery did not have the urgency associated with an immediate or “grade 1” or “category 1” or “crash” section. The pursuers’ contention is that had the defender’s staff proceeded with an immediate section the time between decision and delivery

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would have been of the order of 40 minutes. As it was the lapse of time was of the order of an hour.

[8] The pursuers’ case was that it was negligent not to have delivered Rowan

by Caesarean section no later than 01.40 on 2 June 1999. They contended that Rowan was suffering from hypoxia in utero and that had the results of CTG monitoring prior to 01.12 hours on 2 June 1999 been properly interpreted or had monitoring been continued after 01.12 hours (and been properly interpreted), then Rowan’s hypoxic state would have been detected and delivery by Caesarean section would have been expedited with the result that she would not have suffered the catastrophic brain damage that she has.

At the reclaiming motion

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[9] At the reclaiming motion the pursuers’ submission was essentially that the Lord Ordinary’s opinion had failed to give adequate reasons for his decision, and that the absence of adequate reasons, taken with the excessive delay on the part of the Lord Ordinary in producing his opinion, meant that there had not been a fair trial of the issues and the Lord Ordinary’s interlocutor should be recalled.

[10] In terms of the pursuers’ written note of argument, their primary motion on recall of the Lord Ordinary’s interlocutor was for this court to uphold the pursuers’ first plea-in-law thereby finding the defender liable to make reparation to them and to fix a proof on the quantum of damages.

However at the hearing of the reclaiming motion, counsel for the pursuers departed from that position, insisting only on the alternative position in the written note of argument: that in the event of the Lord Ordinary’s interlocutor being recalled the case should be remitted back to the Outer House for a rehearing of evidence before a different Lord Ordinary. In the result, although the pursuers’ counsel made extensive reference to the evidence that had been led at proof and criticised the medical and nursing staff responsible for the care of the first pursuer during her labour, the court was not invited to evaluate the whole of the evidence with a view to coming to its own conclusions on fault and causation of damage.

[11] Thus, the overarching issues raised by the reclaiming motion were: first, whether on the basis of the criticisms of the Lord Ordinary’s opinion advanced by the pursuers under reference to their grounds of appeal, this court is satisfied that the Lord Ordinary’s interlocutor of 23 January 2014 is open to be recalled; and, second, whether the disposal proposed by the pursuers, that is a remit to the Outer House, is competent and appropriate.

Given the nature of argument presented, success for the pursuers in the reclaiming motion depends on acceptance of both of the propositions advanced by the pursuers: (1) that the Lord Ordinary’s opinion is so flawed that his interlocutor might properly be recalled; and (2) that the correct and competent disposal is a remit to the Outer House for a proof of new. As will be apparent, given the position taken on behalf of the pursuers these propositions are to an extent interdependent.

The structure of this opinion

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[12] As we have indicated, although we were not invited to come to a conclusion on the basis of what we made of the evidence, we had been provided with a transcript and extensive reference was made to the evidence with a view to providing a context for submissions. In the course of these submissions the Lord Ordinary was severely criticised for what was said to have been a superficial treatment of the pursuers’ case and a failure to engage with the

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 121 relevant medical science. That being so, having first said something in entirely general terms about CTG monitoring of the foetal heart beat in utero, we shall begin by setting out at length what we understand to have been the factual issues in the case, before turning to the manner in which they were resolved by the Lord Ordinary. We shall then set out the grounds of appeal and then record and discuss the submissions made to us in relation to them. We see there to be some overlap as among the various grounds and accordingly we shall aggregate them for the purpose of discussion by reference to what appears to be the core criticism. After summarising our opinion on the grounds of appeal, we shall address the competency of the disposal proposed by the pursuers. Finally we shall provide a conclusion.

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CTG monitoring during labour

[13] In very large part, the pursuers’ case of negligence relates to monitoring of Rowan’s heartbeat during the latter part of labour and the interpretation of the results of that monitoring. It is therefore convenient, before going any further, to say something in general about foetal monitoring using a CTG, how the signs disclosed by such monitoring may point to a state of chronic partial asphyxia such as the pursuers aver was experienced by Rowan prior to her birth, what these signs are and how the language used to describe them and the method of interpreting them have evolved over a time period which includes the date of Rowan’s birth. The latter point is important. While the pursuers may be correct to say that the focus of attention should be the clinical significance of a particular pattern of signs rather than the nomenclature applied to these signs, medical knowledge as to the significance of signs is in a state of constant development and of course language is a means of encapsulating and then transmitting such knowledge. Although CTG monitoring was a well-established technique at the time of Rowan’s birth, associated practice was in a state of evolution. As the defender wished to emphasise, what was generally understood to be the case in 1999 was not necessarily the same as was generally understood to be the case even a few years later.

[14] Labour is stressful for the foetus. The authors of Gibb and Alkuraman Fetal Monitoring in Practice (first published in 1993 and described in evidence in the present case as the standard guide to foetal monitoring) repeat what we take to be an adage in obstetrical practice: “the process of birth is the most dangerous journey an individual undertakes”. Despite that, in the absence of an indication to the contrary, vaginal delivery is the generally preferred option over Caesarean section.

[15] One stress on the foetus during labour is reduction in the oxygenation of its tissues due to the contractions of the uterus. The intake of sufficient oxygen is essential in order to generate energy and thereby maintain bodily function. That is true for the foetus in utero as it is for the new-born infant. In utero the foetus receives the oxygen that it requires from blood flowing to it via the umbilical cord from the placenta. Should that mechanism be interfered with or otherwise be ineffective the degree of oxygenation of the foetus may become inadequate, a condition sometimes described as intrauterine hypoxia or, as the pleadings in the present case have it, chronic partial asphyxia. Such insufficiency of oxygen will cause the foetus to generate energy by producing lactic acid, resulting in the foetus’s blood becoming more acidic, a condition referred to as acidosis. The foetus can survive episodes of hypoxia without sustaining injury but where it experiences severe or prolonged hypoxic episodes its capacity to withstand further asphyxial insult becomes incrementally

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diminished with a consequent risk of brain injury or death. CTG monitoring is a means of detecting changes in the foetal heart rate (FHR) and patterns formed by these changes that may point to potentially injurious foetal hypoxia.

Evidence of foetal hypoxia is an indication that delivery should be expedited, if necessary by Caesarean section.

[16] A CTG monitor is a machine (typically capable of being readily moved about) which measures and records FHR together with uterine contractions, by means of separate sensors, the results being presented on a continuous roll of printed graph paper (otherwise a read-out) in which FHR is recorded in the upper section and uterine contractions are recorded in the lower section, under reference to timings marked on the read-out. The form of the read-out therefore allows changes in the FHR to be coordinated with the incidence of contractions. With the CTG monitor which was used in the present case the paper roll runs at the rate of one centimetre per minute with the result that a ten-centimetre horizontal section shows activity over ten minutes. The pattern of rising and falling FHR in response to the incidence of contractions as represented by lines on the graph paper is referred to as a trace. An upward sloping trace (from left to right) indicates a rise in FHR and a downward sloping trace indicates a fall in FHR. The sensors which detect FHR and uterine contractions are in the form of thick elastic belts placed around the mother’s abdomen. One sensor incorporates a pressure monitor to detect uterine activity, including contractions (measured in kilopascals of pressure).

The other incorporates a round flat disc which picks up and produces an electronic reading of the foetal heartbeat.

[17] The time of commencement, duration and cessation of contractions can be ascertained, but not their strength. In addition to the read-out, the machine emits an audible indication of the FHR, which can alert experienced practitioners to relevant changes.

[18] The read-out provides a permanent record of variations in FHR which can be consulted by practitioners during labour and which in the present case was lodged in court as a production and considered and discussed by witnesses while giving evidence. The configuration of the trace is accordingly a matter of objective and readily verifiable fact. However, exactly what is to be made of a particular trace with a view to assessing the condition of the foetus is a matter for interpretation. In other words, although there can be no argument as to the configuration of a particular trace, practitioners may differ as to what a particular configuration indicates about the health of the foetus.

[19] As an indicator of foetal health the CTG trace is to be interpreted against the clinical background. Certain features of the trace are important.

These include the baseline FHR; accelerations or decelerations in FHR; the variability of the baseline; the duration and intensity of uterine contractions; and the intervals between the first and last of a series of contractions. However, the Lord Ordinary heard evidence that the emergence of a pattern is much more important than individual features looked at in isolation.

[20] The baseline is the mean level of FHR with accelerations and decelerations excluded. It is determined over a period of five to ten minutes and is expressed in beats per minute (bpm). According to Gibb and Alkuraman the normal range of the baseline FHR at term is 110 to 150 bpm. A baseline FHR falling below that normal range (i.e. less than 110 bpm) is referred to as bradycardia. A baseline FHR above that range (i.e. above 150 bpm or perhaps 160 bpm) is referred to as tachycardia. Variability is the degree to which the baseline varies, leaving out of account accelerations and deceleration. An acceleration is a transient increase in FHR above a certain level (defined by

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 123 Gibb aanad Alkuraman as a transient increase in heart rate of 15 bpm and lasting 15 seconds or more); a deceleration is a similarly transient decrease in FHR. A reactive trace is one where there is a variability of FHR within certain limits, consistent with the normal movement of the foetus. The terms “early” or “late” applied to accelerations or decelerations relate to the extent to which these are synchronised with uterine contractions. At one time “early” or “late” decelerations were known as “type I” or “type II” “dips”, although efforts were being made by 1999 to move away from that terminology. In some maternity units this double classification of early and late became a tripartite one of “early”, “late” and “variable”. Variable decelerations vary in the shape of the trace and sometimes in timing with respect to each other.

[21] Broadly speaking, accelerations are considered a sign of good foetal health in that they demonstrate that the foetus is responding to stimuli and displaying the integrity of the mechanisms controlling its heart (Gibb and Alkuraman). Decelerations are normally associated with compression of the foetus, for example by a contraction. They are usually but not invariably benign. In determining what is the significance of a deceleration it is relevant whether it is “early” and synchronous with a contraction, or “late” and out of phase with contractions.

[22] Before the Lord Ordinary, reference was made to several sources of assistance in interpreting CGT traces. Guidelines for the use of foetal monitoring were published in 1987 by the International Federation of Gynaecology and Obstetrics (FIGO). These identified a classification system of “normal”, “suspicious” and “pathological” patterns, according to features such as heart rate, variability, decelerations and the like. Particular stress was placed on the role of certain types of deceleration, namely severe variable or severe repetitive early decelerations, prolonged decelerations and late decelerations.

[23] Apart from the presence of decelerations, their shape and duration may have significance. For example, a biphasic deceleration is one with a particular “w” shape, but also of prolonged duration. It was described in evidence as the FHR “having dipped”, and there having been “an attempt to come back up and try again”. A pattern of biphasic decelerations, particularly when prolonged, is open to the interpretation that the foetus is in distress.

“Shouldering” refers to a small rise prior to or after a deceleration. The nature of the shouldering, whether it is normal, exaggerated or lost, may also aid interpretation of the trace. A deceleration showing late recovery is one where the recovery to base level is delayed.

[24] As previously noted, the first edition of Gibb and Alkuraman was published in 1993. The classification adopted there was of “normal”, “suspicious”, and “abnormal” patterns, identified using features relating to FHR, variability, and decelerations, in terms which were similar but not identical to those in the FIGO classifications, but with added emphasis on the role of the presence, or absence, of accelerations. The second edition of Gibb and Alkuraman was published in 1997. Again the relevant features differed in certain respects from the FIGO classification. A standard textbook for midwives, Myles, Textbook for Midwives (13th edn, 1999) referred only to “late” and “early” decelerations, without reference to “variable” decelerations.

[25] The Royal College of Obstetricians and Gynaecologists [RCOG] Guidelines were issued in 2001 (the 2001 guidelines). These referred to certain features as “normal”/“abnormal” and “reassuring”/“non-reassuring”.

Decelerations were described as “early”, “late” or “variable”. From 2001 onwards this tripartite division came to be accepted throughout the UK. Dr

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Sanders, one of the defender’s experts, described the 2001 guidelines as “a watershed in terms of changing practice”. Dr MacPherson, who was led by the pursuers to speak to obstetrical practice in 1999, accepted that the 2001 guidelines were published “with a view to standardising practice and language”.

[26] Thus, the terminology used when discussing the interpretation of CTG traces has varied over time, with greater or lesser emphasis being placed at different times on particular features within the overall pattern. When a dual rather than a tripartite classification was adopted, early decelerations were viewed as relatively benign, with late decelerations being those likely to give cause for concern. What, as at the date of proof in this action, would be referred to as variable decelerations would once have been classified as early decelerations.

As at 1999 practice as to the classification of patterns in or features of CTG traces and their interpretation was not standardised. As far as the present case is concerned, while that fact requires to be recognised, it may not to matter. As the defender submitted to the Lord Ordinary, irrespective of the precise label to be attached to individual features what was important was whether staff could identify what was good or bad, normal or abnormal and reassuring or non-reassuring. Nevertheless, when, as was the case in the proof in this action, the Lord Ordinary was considering in 2012 what had happened in 1999, he had to be conscious of the implications of “looking at 1999 events through 2012 spectacles”. What that means is that while it is appropriate to judge what actually happened in 1999 by reference to what was the state of medical knowledge in 2012, it is not necessarily appropriate to assess what should have been apparent to practitioners in 1999 by reference to a 2012 state of knowledge.

[27] Apart from CTG monitoring, FHR may be monitored by means of a handheld Doppler ultrasound transducer, referred to as a “Doppler” or “Sonicaid” (a proprietary name). It detects FHR but not contractions (if a Sonicaid is used to monitor FHR, contractions require to be assessed manually by the midwife). A gel pad, which is part of the Sonicaid, is placed on the abdomen, and an audible signal is emitted representing the FHR. In evidence in the present case the technique of monitoring by a handheld Sonicaid was referred to as intermittent auscultation. Intermittent auscultation with a Sonicaid does not produce a permanent record in the form of a trace such as is produced by a CTG machine.

[28] In this opinion references to CTG monitoring are to monitoring using a CTG monitor as opposed to intermittent auscultation using a Sonicaid.

Summary of the first pursuer’s labour and the delivery of Rowan Up to 22.00 hours on 1 June

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[29] Parties are essentially at one as to events between the admission of the first pursuer to Raigmore Hospital in the early hours of the morning of 1 June 1999 and 22.00 hours that evening.

[30] The first pursuer is an insulin-dependent diabetic (IDDM), who avers a five-year history of raised blood pressure but no other significant medical history. Her pregnancy was classed as high risk because of her diabetes and hypertension, both of which carry recognised complications for childbirth.

The pursuer had an expected delivery date of 18 June 1999, but on 31 May she was admitted to Belford Hospital in Fort William where she had presented with contractions starting at 20.00 hours. Her blood pressure was raised and there was slight oedema of the ankles and fingers. She was transferred to Raigmore Hospital at 04.20 on 1 June. There, CTG monitoring was commenced at 04.28 and continued until about 05.05.

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 125 [31] On admission to Raigmore the foetus was in a cephalic presentation (that is head-down) with the head two-fifths palpable. Contractions were 4/10 (four times every ten minutes – sometimes noted as 4:10).

[32] The CTG trace on admission showed a baseline FHR of 140 bpm with good variability. There were two accelerations, no decelerations, and the contractions were 3–4/10 throughout, indicating a normal reactive trace.

Further CTG readings were taken during the day, with normal results. At about 18.10 the pursuer was admitted to the labour ward. A further CTG trace was commenced at 18.14. It ran continuously until about 01.15 (in the pursuers’ pleadings the time at which CTG monitoring ceased is given as 01.12) on 2 June, a little less than 50 minutes prior to delivery. At 18.30 a partogram (a chart comprising a single sheet on which is noted certain foetal signs and measurements) was commenced. At 19.00 the protocol for IDDM mothers was commenced. During this period the pursuer underwent various unsuccessful procedures, including an attempt to apply a foetal scalp electrode, and a procedure designed to release the amniotic fluid from the uterus, which did not produce any liquor. Intravenous syntocinon (administered to increase the frequency of contractions) was started at 19.45, and increased at 20.30, when contractions were described as moderate to moderately strong. The rate of administration of syntocinon was again increased at 23.30, and decreased at midnight. At 20.45 the pursuer was given a dose of lisinoprol to treat her elevated blood pressure.

[33] Further readings of the CTG during the evening produced results within normal limits. However, the pursuers aver that, on a proper interpretation, this was not so during the four hours prior to delivery and that this was due to chronic partial foetal asphyxia.

A

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D After 22.00 hours on 1 June: the competing versions of events

[34] During the four hours prior to delivery the members of the defender’s staff who were responsible for the care of the first pursuer and her unborn child were Midwife Kathleen MacPherson (who took over direct care of the first pursuer from Midwife Karen Marnoch at about 22.00); Midwifery Sister Catherine Richmond (the sister in charge of the labour ward after 22.00); Dr Amy Sharkey, obstetric registrar and Dr Michael Hulse, consultant obstetrician. The midwives and Dr Sharkey were present in and about the labour ward. Dr Hulse was on call but at home, contactable by telephone.

[35] It is the pursuers’ contention that the CTG trace had become suspicious at about 22.00 on 1 June and that at all times after 23.00 the CTG indicated a degree of possible foetal compromise that ought to have been noted by members of the midwifery and obstetric staff had they been exercising due care and skill. It is averred that by 00.35 on 2 June there had been minimal progress in the pursuer’s labour for a period of two hours. It is averred that at that stage the midwives caring for the pursuer ought to have called for a medical review, a duty which continued throughout the period of abnormality of the trace, namely until 01.12 (or 01.15) when CTG monitoring ceased. It is averred that after 23.00 decelerations became increasingly late with biphasic decelerations and periods of slow recovery towards the end of the trace. The pursuers aver that the trace at 23.45 showed a FHR of 130 bpm, reduced variability and atypical decelerations, some of which were prolonged. It is averred that when monitoring ceased at 01.12 the CTG showed a baseline of 140 bpm, reduced variability, and atypical variable decelerations, some of which were late with periods of slow recovery. Rather than increasing the syntocinon at 23.30, it is averred that the midwives should have reduced it (although the pursuers’

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pleadings include criticisms about the administration of syntocinon, these did not form part of the case that was put to the Lord Ordinary).

[36] At 00.35 Dr Sharkey, recorded that the trace had shown “marked earlies throughout but otherwise reactive”. It is averred by the pursuers that this was interpreted as meaning early decelerations, which it is averred the trace did not in fact show. It is averred that at that time, no ordinarily competent obstetrician would have interpreted the trace in that way. At that time Dr Sharkey noted “probably not deliverable vaginally” and discussed the case by phone with Dr Hulse, who instructed that a Caesarean section be performed.

It is averred that Dr Sharkey ought to have informed Dr Hulse of the lack of progress of labour, that the pursuer was diabetic, and of the abnormalities on the CTG trace. Had he been given that additional information it is said that Dr Hulse should (and therefore would) have instructed an immediate (in the sense of urgent) Caesarean section. The pursuer was transferred to theatre at 01.15 and Rowan was delivered at 02.02. It is averred that Dr Sharkey should have turned off the syntocinon and ordered continuous foetal monitoring until delivery, but did not do so. If CTG monitoring were not possible for any reason, the minimum requirement would have been intermittent auscultation using a handheld ultrasound transducer. It is averred that no ordinarily competent midwife dealing with a diabetic mother with high blood pressure who was failing to progress in labour would have monitored the FHR at intervals of less than five minutes whereas there was in fact no monitoring of any sort after 01.12. The pursuers refer to the time between 01.12 and delivery at 02.02, as “the dark period”. On the defender’s averment that knife to skin (that is commencement of the Caesarean section) was at 01.57 the last monitoring should have been at 01.52. It is averred that, as a case for an urgent section, Rowan should have been delivered within 30 minutes of the decision being made, as required by the relevant [2001] guidelines.

[37] There are no surviving clinical notes for the period between 00.35 and 01.15 when the pursuer was transferred to theatre.

[38] The defender disputes much of what the pursuers have to say about events after 22.00 on 1 June. It avers that neither variable nor early decelerations indicate serious foetal compromise, and that sytocinon was used consistently with a view to achieving contractions at a rate in line with the local protocol. A review by Dr Sharkey at 21.40 showed good progress in labour. The CTG trace at 21.50 showed occasional decelerations which were very brief in duration. The trace throughout was generally reassuring and reactive. Dr Sharkey’s review at 00.35 indicated that there had been slow progress since 22.15, with the foetus being in an unfavourable position for delivery. A positive response to scalp stimulation, shown on the trace at 00.40, showed that the foetus was not hypoxic.

Dr Sharkey reviewed the antenatal scans which were normal. She called Dr Hulse at about 00.50, informing him that the patient was diabetic, that the trace showed early decelerations and of her findings on vaginal examination.

Dr Hulse instruction was that a Caesarean delivery was now indicated given the first pursuer’s diabetic status and failure to progress. Throughout the period until discontinuation of the trace there were no features requiring early delivery, or any alteration of the course of obstetric management. The Caesarean section was undertaken not because of any concerns that the foetus was hypoxic but because of the first pursuer’s failure to progress in labour. It was classed as an “emergency” in the sense that it was not an elective procedure. It was not a “crash” section requiring delivery within 30 minutes of the decision and there was no clinical indication for such urgency. Normal practice at the relevant time was to proceed to delivery within 60–90 minutes of the decision to carry out a

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 127 Caesarean section. Rowan was delivered within 67 minutes or less after the decision was made to carry out a section and the first pursuer’s consent being obtained. At about the time of transfer to theatre, 01.15, the baseline FHR was recorded as 130–150 with early decelerations down to 90–110 bpm with quick recovery. The defender avers that CTG monitoring equipment is not routinely available in theatre, there was no indication requiring it to be transferred there and its presence makes it difficult to access the patient when preparing for a Caesarean. The discontinuation of CTG shortly before transfer to theatre was normal practice in the context of an acceptable foetal heart pattern. After transfer, in accordance with standard practice then and now, intermittent auscultation was carried out using a handheld “Sonicaid” to listen to the heart whilst manually monitoring the nature of the contractions until the Caesarean was commenced. This was, and remains, standard practice. The volume on the Sonicaid would have been turned up to enable all present to hear the foetal heart which remained normal throughout. Had there been any significant abnormality, delivery would have been expedited but there were no indications for this to happen. In the absence of other adverse factors, and with a positive response to scalp stimulation, it was reasonable to assume that after withdrawal of the syntocinon, leading to a decrease in the frequency and strength of contractions, the foetal condition would improve or at least not deteriorate. The defender claims that following transfer to theatre, midwifery observations including recording of the FHR, the timing of the epidural, knife to skin, delivery of the head and eventual delivery were made by Midwife Macpherson on a separate sheet of paper, as is common practice, but these have become detached from the principal notes and now cannot be found.

A

Rowan’s condition at birth

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Clinical signs

[39] When Rowan was delivered there was thick fresh meconium present.

Meconium is the content of the foetal digestive tract, composed of materials ingested in utero. It is viscous and sticky, although the texture, colour and viscosity vary depending on the age of the meconium. Rowan was in a poor condition at delivery. Her Apgar score at five minutes was 0 (a new-born in optimum condition will score ten on the Apgar scale which, as senior counsel for the pursuers explained, was developed by Dr Virginia Apgar, but the name of which is sometimes thought of as an acronym of the five vital signs which contribute to the assessment – appearance, pulse, grimace, activity and respiration). Following birth there was a period of time before adequate perfusion was established. Paediatric staff commenced resuscitation by means of an endotracheal tube with oxygen, but no air entry into the lungs was audible, and the heart rate remained below 60 bpm. Adrenalin was given and cardiac massage commenced. During resuscitation attempts meconium, or what was thought to be meconium, was removed from the hypo-pharynx by suction. There was no evidence of a pneumothorax. At 30 minutes after delivery Dr George Farmer, a consultant paediatrician, attended and re-intubated, after which Rowan was transferred to Neonatal Intensive Care, and attached to a ventilator. About one hour after birth a moderate sized pneumothorax was noted. She did not have meconium aspiration syndrome.

E

F

The cause of Rowan’s condition at birth: the pursuers’ contentions

[40] The pursuers aver that during labour Rowan suffered chronic partial asphyxia, for which she became unable to compensate at or shortly prior to

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delivery. As a result she began to gasp in utero, and, in consequence, she inhaled a plug of fresh meconium deep into her airways. This physical obstruction prevented her from drawing air into her lungs with resulting acute asphyxia, which in turn caused the brain damage from which she suffers. It is averred that she was covered in meconium which can be indicative of foetal distress prior to delivery. Rowan had a gasping respiratory effort for the first ten minutes of life indicating that she was not in a state of terminal apnoea, but had entered the phase of agonal gasping (a brain stem response to hypoxia driving her body to take very deep breaths in an attempt to ventilate herself) shortly before birth. It is averred that the findings as to Rowan’s condition in the period immediately following birth were not consistent with the blockage of the trachea by meconium occurring at or around the time of birth. The abnormalities identified by an MRI scan are indicative of brain damage in the near term foetus, which tends to occur within ten minutes of circulatory collapse. Continuation of collapse for longer than 25 minutes often results in death or in survival with extensive and severe brain damage. It is accordingly averred that Rowan’s disabilities were caused by a period of chronic partial asphyxia and then a period of acute profound asphyxia shortly before delivery.

The cause of Rowan’s condition at birth: the defender’s contentions

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[41] The defender avers that longstanding diabetes mellitus in the mother, particularly when associated with diabetic retinopathy and nephropathy (the likely cause of the pursuer’s hypertension) is associated with significantly higher incidents of foetal abnormality and morbidity. At delivery, although Rowan had a heartbeat and tone, she was relatively flat and in need of resuscitation. There was no meconium on her face or above her waist and none had been noted prior to delivery. She had been wrapped in a towel, which would tend to smear the meconium below the waist and increase the areas upon which it would be visible. There was no meconium on the vocal cords. No improvement in her conditions was noted and cardiac massage was commenced, along with the administration of resuscitative drugs and fluid, and re-intubation. During subsequent treatment meconium was suctioned from the nasogastric tube indicating its presence in her stomach, not her trachea. The presence of meconium only in the pharynx and stomach means that Rowan could not have gasped in utero and aspirated meconium, but that she simply swallowed meconium and was able to protect her airway. The most likely cause of the obstruction of her trachea was a bronchogenic cyst in the trachea. It is likely that air entry was finally obtained because the final endotracheal tube was placed below the obstruction. Failure of resuscitation due to an obstructed trachea is a rare but documented event. Had Rowan been gasping from prolonged asphyxia it is unlikely that she would have survived for an additional 40 minutes following delivery without adequate ventilation. It is possible that her attempts to breathe vigorously in the presence of an obstructed airway resembled agonal respirations.

The pursuers’ case of negligence

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[42] For all the length of the submissions presented to the Lord Ordinary by parties, the pursuers’ case is not complex. It is summarised by the Lord Ordinary at paras33 and 35 of his opinion as it had been summarised in paras 3–6 and 323–329 of the pursuers’ written submission following the proof. Put shortly, the pursuers’ case is that had Rowan’s condition in utero been properly monitored, her asphyxia would have been identified and she would have been delivered earlier, thus sparing her injury. In its essentials the case consists of

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 129 the following factual propositions, all of which required to be proved: Rowan suffered catastrophic brain damage because she was deprived of oxygen during the first 30 minutes or so of her life; she was deprived of oxygen because she was unable to breathe air into her lungs; she was unable to breathe air into her lungs because her airway was blocked; her airway was blocked because she had inhaled a plug of fresh meconium; she had inhaled a plug of meconium because from a time shortly before her delivery her brain stem had driven her body to take very deep breaths in an attempt to ventilate herself (agonal gasping); the process of agonal gasping was a reaction to and the endpoint of the progressive state of chronic partial asphyxia which had developed during the last four hours of Rowan’s time in utero; notwithstanding her partial asphyxia Rowan would not have reached the stage of agonal gasping had she been delivered by Caesarean section at any time up to a few minutes before 02.02 on 2 June; and the fact that she was not delivered earlier was due to a negligent failure on the part of those responsible for her and the first pursuer’s care to detect the signs of chronic partial asphyxia mandating Caesarean section which were or would have been disclosed by properly interpreted CTG monitoring during the four hours prior to Rowan’s birth. The pursuers acknowledge that a decision had been taken to proceed by way of Caesarean delivery by reason of failure to progress in labour during a telephone discussion between Dr Sharkey and Dr Hulse at about 00.50 or a little earlier on 2 June and that preparation for carrying out the section inevitably took time. However, the procedure agreed at about 00.50 was not a “crash” (or “category 1”) section. In other words reducing time to delivery to a minimum was not the priority. It is the pursuers’ case that the time period from decision to delivery was capable of being expedited and should have been expedited had the CTG trace over the period 00.50 to 01.15 been properly interpreted. Had the decision to delivery time been expedited Rowan would not have suffered brain damage.

[43] Whereas a case based on the administration of syntocinon had featured in evidence, as the Lord Ordinary notes at para.147 of his opinion, it was not insisted upon.

[44] As counsel for the defender emphasised in their submission to this court, a necessary consequence of the nature of the pursuers’ case was that, given the acceptance that Rowan did not sustain brain injury in utero but rather due to the delay in resuscitating her during the first 30–40 minutes of life, any fault during the first pursuer’s labour had to be sufficiently connected with the failure of resuscitation after delivery. Otherwise the pursuers could not succeed.

[45] In presenting their submissions to the Lord Ordinary, the pursuers compressed the questions of fact in the case into three high-level issues: A. Was Rowan asphyxiated because her trachea was blocked with inhaled meconium?

B. Was the meconium drawn down into her trachea because Rowan gasped in the final few minutes before she was delivered?

C. By when ought those responsible for managing the labour, in the exercise of ordinary skill, taking ordinary care, have delivered Rowan?

[46] The pursuers provided their proposed answers to issue C. In summarising their four cases of fault (described by reference to what they described as four key moments where had the staff not been negligent Rowan’s brain damage would have been avoided). These were:

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(1) From just after 23.00 Midwife MacPherson, had she been exercising ordinary skill and taking ordinary care, ought, given the already suspicious trace and the other risks, to have brought Dr Sharkey’s attention to the CTG trace. And Dr Sharkey, had she been exercising ordinary skill and taking ordinary care, would have spoken to Dr Hulse and accurately described the trace and clinical situation. There would then have been decision to go to Caesarean section. Rowan would have been delivered long before she was.

(2) At 00.35 (on 2 June) Dr Sharkey, had she been exercising ordinary skill and taking ordinary care, would have given Dr Hulse an accurate description of the clinical situation and trace. Had she done so, Dr Hulse would have instructed her to expedite a Caesarean section (in other words undertake a “crash” section). Rowan would then have been delivered early enough not to be injured.

(3) At 01.15, the midwives attending, had they been exercising ordinary skill and taking ordinary care, would have brought the last section of CTG to Dr Sharkey’s attention. Had they done so steps would have been taken to speed up the process of moving to theatre and delivery and Rowan would have been born early enough not to be injured.

(4) After 01.15, the court should infer that Rowan’s condition in utero got progressively worse. Had there been continuous CTG, as, in the exercise of reasonable care, there ought to have been, Rowan’s worsening condition would have been seen by midwives and obstetrician of ordinary skill exercising ordinary care and delivery would have been expedited. Rowan would have been born at least two or three minutes before she was. The same would have been the case had there been frequent, competent intermittent auscultation.

The witnesses led at proof

E

F

[47] There were 13 witnesses led for the pursuers. Of these nine had had involvement with the events of 1 and 2 June 1999: the first pursuer; the second pursuer; Midwife Karen Marnoch; Midwife Kathleen MacPherson; Midwifery Sister Catherine Richmond; Dr Amy Sharkey; Dr Rajendra Kumar Alit, a registrar who attended after delivery; Dr Michael Hulse; and Dr George Farmer, the consultant paediatrician who attended after delivery. The other four witnesses were led as experts. They were Mrs Jean McConville, midwife; Professor Tim Draycott, consultant obstetrician; Dr Hilary MacPherson, consultant obstetrician and gynaecologist; and Professor Benjamin Stenson, consultant neonatologist.

[48] There were four witnesses led for the defender. One, Staff Midwife and Neonatal Nurse Sandra Muir Mackenzie spoke to matters of fact (entries made in Rowan’s records when she was in the Special Care Baby Unit). The other witnesses were led as experts. They were Professor James Walker, Professor of Obstetrics and Gynaecology; Dr Julia Sanders, consultant midwife; and Dr Jonathan Coutts, consultant neonatologist and respiratory paediatrician.

Lord Ordinary’s resolution of the issues after proof Classification of issues

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[49] In his opinion, having identified the material which had been put before him by parties, the Lord Ordinary states his intention to deal with the main issues and his findings in relation to these issues under three main heads: (1) the chronology of the labour; (2) the pursuers’ allegations of negligence; and

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 131 (3) questions of causation. He expresses the hope that through the format that he is adopting, with its reference to their respective written submissions, the parties, who are obviously aware of what has been submitted by them, will obtain a reasonably clear and concise indication of his decisions and reasons (opinion para.45).

A

Findings of fact

[50] The Lord Ordinary’s head (1) comprises his findings of primary fact as to events prior to delivery. It extends from paras 47–117 of his opinion. It is to be understood by reference to the Lord Ordinary’ explanation at para.46: “Averments which have been made on record but which have not been established to my satisfaction are not included in my findings.”

[51] In many instances the findings under head (1) were in relation to matters that were not contentious. However, as is apparent from our discussion of the competing versions of events after 22.00 on 1 June and indeed from the way in which the pursuers articulated their four cases of fault, parties were in dispute as to whether FHR was in fact monitored for the whole of the period from 22.00 on 1 June to just before delivery at 02.02 on 2 June; and what the monitoring that had been carried out demonstrated, if properly interpreted. The Lord Ordinary’s determinations on these controversial matters are to be found in the following paragraphs of his opinion, which we here reproduce (the pursuers criticise these findings and contend that the Lord Ordinary gave inadequate reasons for making them, we shall say more about that later in this opinion). “[60] CTG was commenced at or about 18.14 on 1 June, 1999 and ran until about 01.12 on 2 June, 1999, shortly before the pursuer was transferred to theatre for caesarean section. . . .

[62] At commencement of the CTG trace there was a base line foetal heart rate of around 140 beats per minute with frequent accelerations and excellent base line variability. This fairly normal pattern continued throughout the trace. . . .

[78] Following a second dose of diamorphine at around 21.50 there was a further dampening of the baseline variability, but it still remained above five beats per minute. There were occasional early or variable decelerations that were very brief in duration. Administration of diamorphine has a typically suppressive effect on reactivity but the remaining variability in the foetal heart rate after opiate administration is reassuring. The trace generally was reassuring and reactive. . . .

[85] After siting of the epidural at about 22.30 there were a number of variable decelerations against the background of normal baseline rate and variability and the continued presence of accelerations. Most of the decelerations had a drop from baseline of less than 60 bpm and lasted less than 60 seconds. Accordingly they are classified as typical. Normal variability continued throughout and can be seen both in the baseline and within decelerations. Both variable and early decelerations are common as labour progresses. Variable decelerations are usually due to intermittent cord compression. Early decelerations are usually due to foetal head compression. Neither form of deceleration indicates serious foetal compromise. . . .

[90] From 23.40 contractions were 4:10 or 5:10.

[91] The CTG showed early decelerations but was otherwise reactive. . . .

[100] Throughout the period of the CTG, until discontinuation at 01.12, the material features of the trace were not such as to require early delivery, or alteration in the obstetric management. . . .

[103] CTG monitoring equipment was not routinely available in theatre.

There was no indication to transfer CTG monitoring equipment to theatre.

That would have taken time. The presence of CTG equipment in theatre

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can make it difficult to access the patient when they are being prepared for caesarean section. The CTG was discontinued, as was normal practice at the time, shortly before transfer to theatre and in the context of an acceptable foetal heart pattern.

[104] Following transfer intermittent foetal heart monitoring was carried on by Midwife (MacPherson). A handheld “Sonicaid” was used to listen to the heart whilst manually monitoring the nature of the contractions. This was in 1999 a standard practice. Midwife (MacPherson) continued to monitor the foetal heart rate in the anaesthetic room and then in theatre until the caesarean section commenced.

[105] There was no indication to further expedite delivery. In any event discontinuation of syntocinon upon transfer to theatre would have meant a decrease in the frequency and strength of the contractions. It was reasonable to assume (bearing in mind the absence of other adverse factors and following a positive response to scalp stimulation at 00.40) that the foetal condition would improve or at least not deteriorate.

[106] There are no clinical notes between 00.35 and 01.15. Following transfer to theatre Midwife (MacPherson) made notes in a separate continuation sheet which has become separated from the principal notes and cannot now be found. Such notes would normally have included recordings of the foetal heart, the timing of the epidural top up, the timing of ‘knife to skin’, the time the head was delivered and the time of delivery.

The recording of midwifery observations on a separate sheet is a common practice, for example, when the principal notes are required by anaesthetic, paediatric or other members of staff present in theatre.

[107] The anaesthetic record commenced at 01.30. It would have taken 20 to 30 minutes to test the epidural already in place, administer a test dose of anaesthetic agent and top up the anaesthesia with a further dose before confirming there was a satisfactory block to allow the caesarean section to proceed. . . .

[111] Delivery was approximately 67 or less minutes after the decision was made by (Dr Hulse) and agreed with the pursuer, and in accordance with normal and reasonable practice. . . .

[117] (Rowan’s) condition at birth could not have been reasonably anticipated from the appearance of the CTG up to 01.12 and foetal monitoring thereafter.”

The cases of negligence

E

F

[52] The Lord Ordinary addresses the allegations of negligence (his head (2)) in paras 118–175 of his opinion. He explains there that in addition to the four cases of negligence set out at para.46 above, he considered the allegation made

by Professor Draycott in evidence that there was a negligent failure to recognise that the CTG trace was pathological from 22.00, albeit that allegation had no basis on record. At paras 126 and 131 he observes that all the cases of negligence, whether directed against the midwives or the medical staff, were premised on there having been at the relevant times, “abnormality of the trace”. His conclusion, stated at para.140, is that there had been no negligence.

As the Lord Ordinary more or less says in terms at para.141, that of course follows from his findings in fact in relation to the trace and, in particular, the findings that are included in paras 62, 85, 91, 100 and 117.

Causation

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[53] At para.176 of his opinion the Lord Ordinary turns to what he designated as head (3), questions of causation. His discussion of causation extends from paras 176–204 and he sets out his conclusions at paragraphs 205–225. He finds there to be no doubt that Rowan’s airway was obstructed by something

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 133 after delivery and that it is likely that her cerebral palsy is a consequence of that. He notes that of the competing mechanisms suggested by the parties, a blockage by meconium or a bronchogenic cyst, inspissated hardened or thickened meconium was the more likely. A third possibility, a mechanical blockage from other extraneous material, had been mentioned but had not been the subject of compelling evidence. However, even if Rowan’s airway was blocked by some meconium, the pursuer had failed to establish: that meconium was aspirated by Rowan through the process of agonal gasping; that agonal gasping occurred at or shortly before birth; or that Rowan had been suffering from chronic partial hypoxia prior to birth. As far as the mechanism which brought about an obstruction of Rowan’s airway, the Lord Ordinary concludes that what exactly happened to her will probably never be known. He goes on to find that in any event the pursuer had failed to establish that delivery at some earlier point in time would have altered the outcome and thus the defender is entitled to absolvitor.

A

B

Grounds of appeal

[54] Shorn of some of some of their elaboration, the grounds of appeal in the reclaiming motion are as follows: 1.

The Lord Ordinary’s Opinion does not constitute a reasoned opinion and the absence of a reasoned opinion means that there has not been a fair trial of the issues. That neither party has had a fair trial is no answer to this ground of appeal. (a) The time spent at avizandum was excessive. A reasonable observer would come to the view that there was a real possibility that the Lord Ordinary’s recollection of the evidence and the impression it made upon him had been diminished. The content of the opinion would not reassure the reasonable observer. (b) At the most basic level the Lord Ordinary failed to provide reasons for the factual narrative at paras 42–117 he appears to have found proved. His findings in relation to credibility and reliability are superficial and inconsistent. The Lord Ordinary has made no effort to analyse the evidence to see how it does or does not fit together with a view to underpinning the necessary findings of primary fact. (c) The Lord Ordinary gives little or no explanation as to why he preferred certain expert evidence. (d) The Lord Ordinary disposes of the evidence of the midwifery expert, Jean McConville, in a summary fashion at para.151. (e) The Lord Ordinary’s opinion does not demonstrate that he had an adequate grasp of the relevant medical science to make the findings in fact. It does not deal adequately with the controversy between the experts. (f) The Lord Ordinary’s finding in relation to causation is superficial and confusing. (g) The Inner House should hear submissions on the entirety of the case and decide it afresh. If that is not practicable or appropriate, the case should be referred to a single judge to re-hear the evidence and make adequate findings in fact.

2.

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C

The Lord Ordinary erred in law by failing to adequately explain why he rejected the four cases put forward by the (pursuers) in submission and noted by him on p.73 of the reclaiming print.

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3.

4.

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5.

6.

C

The Lord Ordinary has erred in law by failing to subject the expert evidence on the negligence issues to adequate scrutiny. The course of action which the clinician called by the defender as an expert defends must be one which is logical and rational in the circumstances which pertained in the particular case: Bolitho v City and Hackney Health Authority. The Lord Ordinary has erred in law by failing to carry out this analysis.

The Lord Ordinary has erred in law by failing to explain how he has come to the conclusion that the birth would not have taken place sooner had the CTG trace between 01.00 to 01.15 been observed.

The Lord Ordinary erred in law. He does not explain how and in what aspects he has applied the Hunter v Hanley standards to the various alleged failures.

The Lord Ordinary erred in law by failing adequately to explain why, had the last section of trace 01.00 to 01.15 been observed (as those who were there said it ought to have been), it was not negligent to fail to take the CTG monitoring machine to the operating theatre.

[55] We now turn to consider these grounds, as they were developed on behalf of the pursuers and responded to by counsel for the defender.

Delay in issuing the Lord Ordinary’s Opinion (ground of appeal 1(a)) The pursuers’ submissions

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[56] It was the pursuers’ submission that the parties had been denied what they had been entitled to: a decision delivered promptly, based on the oral evidence heard at the proof. They had not got a fair hearing once the judge’s recollection of the witnesses and the immediacy and atmosphere of the proof had been lost. In Scotland while a right to judgment within a reasonable time is acknowledged there is no authority on what amounts to a reasonable time in this context or as to what the remedy should be where there has been inordinate delay. In England the Court of Appeal’s response to inordinate delay is to reduce the level of deference to the first-instance decision, to consider it with special scrutiny and, if in doubt about whether the firstinstance judge had a firm grasp of what went on at the trial when he wrote the judgment, to send the case back to be reheard: see Goose v Wilson Sandford & Company and c.f., Manning v Kings College Hospital NHS Trust. In the instant case the delay had not been so long as in Goose (where the delay was 20 months and the case had been sent to be retried) but the same issues arose given the Lord Ordinary’s failure to make adequate findings and to explain his reasons. In Manning the Court of Appeal had excused an eight-month delay on the basis that the judge would have needed to “steep himself in the detailed medical evidence and make sure he understood it” before producing a 256-page judgment that was “absolutely comprehensive . . . dealing with each and every point in the most rigorous way”. That, the pursuers submitted could not be said of the Lord Ordinary’s opinion in the present case.

The defender’s submissions

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[57] The defender submitted that whether the period of time spent at avizandum in the present case was unreasonable required to be assessed in context: specifically having regard to the whole length of the action, the complex and exceptional nature of the evidence and the significance of the issues for everyone involved. This was an exceptional case and the duration at avizandum was not unreasonable. The Rules of Court do not prescribe a time

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 135 by which written judgments must be issued. The period during which the present case was at avizandum was less than half the period complained of in Berry v United Kingdom. The Report of the Scottish Civil Courts Review (B60185) (Scottish Civil Courts Review, Edinburgh, 2009), vol.2, Ch.10 paras 18–36 dealt with delay in issuing judgments. The review’s audit of cases referred to at paras 24 and 25 identified cases at avizandum for up to 96 weeks. While in McCourt v HM Advocate at [para.]15 the court stated that as a rule of thumb all cases taken to avizandum, whether civil or criminal, should be advised within three months of the hearing, it recognised that exceptionally some cases will, for reasons of complexity or otherwise, justifiably take longer to advise. This was such a case. The period at avizandum reflected the difficulties in resolving its various complexities. However, were it to be concluded, contrary to the defender’s submission, that the period at avizandum had been unreasonable that does not of itself vitiate the Lord Ordinary’s conclusions. Findings of fact are not to be set aside simply because the judgment was seriously delayed. At most such delay would introduce an additional factor on appeal, if in the light of delay the court cannot be satisfied that the Lord Ordinary came to the right conclusions: Manning v Kings College Hospital NHS Trust, Waller LJ at para.53; Bond v Dunster Properties Ltd, Arden LJ at paras 4–13, Longmore LJ at paras 103–104 and Neuberger MR at paras 119–120; Langsam v Beachcroft LLP, Arden LJ at paras 32–137; Antigua Power Co Ltd v Attorney General of Antigua and Barbuda at paras 61–63. To order a retrial on the basis of delay is not a course open to the court. Such an approach would be arbitrary. It would be unfairly prejudicial to the blameless defender who might in any event have succeeded had there been no delay.

A

Discussion

D

[58] As Lord Neuberger observed in Antigua Power Co Ltd at para.61 the notion that serious delay in obtaining a court determination can amount to a denial of justice is too obvious and too well established to require any detailed explanation or authority. It may amount to a contravention of art.6(1) of the European Convention on Human Rights [ECHR]. These considerations clearly informed the decision of court in McCourt v HM Advocate (an instance of a delay on the part of the appeal court of 18 months as between date of hearing and issue of the opinion). That leaves for consideration just what amounts to serious or unreasonable delay in any particular case and what should be its consequences. There will be cases where these questions might be difficult to answer but that is not so in the present case. We immediately accept and acknowledge that there was an unreasonable delay here between the Lord Ordinary taking the case to avizandum and the issue of his opinion.

The period was just short of 12 months. That was simply too long although it should be put in its context. Parties had taken about four years and nine months from the date of raising the action to concluding their submissions following proof. The proof had extended over some six weeks. Submissions were lengthy. In their written form they took up 254 pages. We strongly suspect that this highly elaborate approach did nothing to make the Lord Ordinary’s job easier. We would suppose that it made it more difficult. Impressive as the written submissions may be if their purpose was to demonstrate their authors’ command of the detail of the case, it is difficult to see how they would have assisted the Lord Ordinary in adopting a structure for his decision-making, highlighting the points that he had to decide, and assembling the material relevant to deciding these points. It is understandable that the Lord Ordinary made no attempt at summaries of these written submissions. We would have

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found doing so almost impossible. Experience indicates that the preparation of a judicial opinion will often take a matter of months, partly because it is expected to be detailed and partly because judges are not always allocated the workdays necessary for writing. That means that judges are preparing judgments in parallel with their other work. Traditionally Outer House judges have been expected to prepare opinions in the evening and at weekends. That may be changing, but the allowance of a “writing day” remains something of a bonus. That the issue of a judgment may seem to parties to be a slow process is not necessarily solely the responsibility of the Lord Ordinary in question.

That said, the parties here are entitled to say that this is not their concern; by whatever standard one determines unreasonableness, the issue of this opinion took too long and that is something for which the court as a whole must take responsibility and accordingly apologise.

[59] Is that all? While counsel for the pursuers spent some time in their submissions on the question of delay, they acknowledged that it was not a “freestanding” ground of appeal. The assertion that the time taken at avizandum was excessive is included in para.(a) of ground of appeal (1) but it does not form part of a proposition which, if accepted, would lead to the reclaiming motion being allowed. The pursuers’ submission was that the court should be less willing to accept inadequate reasons where the Lord Ordinary has lost the immediate impression of having heard the evidence. There was the possibility that the Lord Ordinary’s decision was defective because he had forgotten what the evidence was. In any event, given the delay, the Lord Ordinary’s decision should not be accorded the deference usually given the determination of fact by a court of first instance. Reference was made to the decisions of the Court of Appeal in Manning v Kings College Hospital NHS Trust; Bond v Dunster Properties Ltd and Goose v Wilson Sandford.

[60] We accept that delay in the issue of an opinion may give rise to the inference that the judge at first instance has forgotten or failed to understand the evidence. A similar inference may be drawn where the judge’s reasoning is inadequate or absent. That was the inference which the pursuers’ counsel urged us to draw in the present case, both by reason of delay and what they said about the Lord Ordinary’s reasoning. Had it been critical to our decision we would have been very slow to draw that inference. The Lord Ordinary did not have access to a transcript but he did have access to written submissions which discussed the evidence very fully. Moreover, in the transcript that has been provided to this court, there are frequent passages where the Lord Ordinary has intervened to ensure that he has been able to note the exact terms of witnesses’ evidence. These and other passages suggest to us that, as a matter of fact, the Lord Ordinary was engaged with and understood what the witnesses were saying. Senior counsel for the pursuers specifically acknowledged that he had no criticism of the way in which the Lord Ordinary had conducted the proof. He had been courteous, sensitive to the needs of witnesses and attentive to what they said. In addition, the pursuers did not submit that the Lord Ordinary’s conclusions were entirely contrary to the evidence, rather their submission was that he had not provided reasons for preferring that part of the evidence which supported the defender’s contentions and rejecting that part of the evidence which supported the pursuers’ contentions. Notwithstanding what appears in ground of appeal 1(c), the nub of the case advanced at the reclaiming motion was not about the Lord Ordinary’s subjective comprehension of the material put before him, rather it was about whether in adopting the form of opinion that he had, the Lord Ordinary had succeeded in objectively demonstrating that comprehension

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 137 in a way that sufficiently laid out the mental process which led him to his conclusion.

[61] Accordingly, while we accept that there was serious delay in the issue of the Lord Ordinary’s opinion and we further accept that parties are entitled to consider that delay to have been unreasonable, we are not persuaded that this is material to determination of the reclaiming motion.

Failure to give adequate reasons for findings of primary fact (ground of appeal 1(b) and (e))

A

B

The pursuers’ general submissions on the requirement for reasons

[62] It was the pursuers’ submission that the Lord Ordinary’s opinion was completely inadequate as an explanation of why he had come to the conclusions that he had. Counsel for the pursuers set out what they submitted were the principles relevant to what constitutes a properly reasoned judicial decision.

The principles applied to the analysis of expert evidence, causation and negligence as they applied to the assessment of evidence of primary fact.

[63] It was acknowledged that there were no formal requirements to which an opinion of the Court of Session had to conform. Each judge was accordingly entitled to adopt his or her own style. There were, however, certain irreducible minima which had to be met by a determination if it is to deserve the status of a decision of a judicial tribunal, as Lord Rodger had used that phrase in Dingley v The Chief Constable of Strathclyde Police at p.555D. Junior counsel for the pursuers commended what appears in Ch.17 of Macphail, Sheriff Court Practice (3rd edn) in relation to the form of a sheriff court interlocutor as having more general application. A judgment issued after proof should identify what were the judge’s findings in fact in relation to matters in issue. It should explain why these findings were made. It should include within it all the factual material and contentions of each party, whether supportive of the judge’s conclusions or otherwise. Conclusions should be provided on every matter raised, irrespective of whether the judge considers them essential to his decision. Where the judge has drawn inferences, that should be stated in terms and the primary facts from which the inferences were drawn should be identified. When making findings in fact the judge should explain what was their basis. Where matters were admitted or were otherwise uncontentious that should be indicated, whereas where matters were contested and the subject of conflicting evidence that too should be indicated, the evidence set out and reasons given for accepting or rejecting that evidence, whether in whole or in part: Wallace v Glasgow City Council at para.24. That will require an assessment of the credibility and reliability of witnesses. Reference was made to Heffer v Tiffin Green where it was emphasised that it was essential that oral evidence be tested by the judge for its credibility and reliability against the objective facts, the contemporaneous documents, the motives of the parties and the overall probabilities. Brevity had its place; there was no need to rehearse everything, but the judge has to deal with such material discrepancies as have emerged. Where expert opinions are involved, the judge must make clear how he has approached these opinions and the primary facts upon which they are based. In a case such as the present this would include finding what actually happened and then coming to a view as to what should have happened.

Having done all this, the judge should then set out the relevant law and apply it to the facts as they have been found to be.

[64] The judicial duty to provide reasons for court decisions arises from the right to a fair trial, whether that right is analysed from the perspective of

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common law or art.6 ECHR; justice will not be done if it is not apparent to parties why they have won and, more importantly, why they have lost: English v Emery Reimbold & Strick Ltd; Anya v University of Oxford at para.12. Adequate reasons, junior counsel for the pursuers submitted, also have a practical function. In their absence a party is denied the opportunity of determining whether a decision is appealable. They provide the material with which an appellate court can work and, if necessary, decide an appeal on paper. They provide a response to and therefore an appropriate acknowledgement of the effort put in by parties in presenting their cases. They introduce transparency.

By imposing a discipline on the decision-maker to work towards a logically coherent conclusion and then explain that process they are the indicators of the intellectual integrity of the final opinion. A properly reasoned judgment is much more likely to be based on the evidence; providing reasons concentrates the mind: Flannery v Halifax Estate Agency at p.381. Sufficient reasoning confers legitimacy on a judgment, making it more likely to be acceptable to the parties and the wider public. The parties comprise the primary audience for a judicial decision but they are not the only audience. A judicial decision is a public document and it should explain in terms which are comprehensible to the reasonably intelligent reader with no particular prior knowledge of the case what were the issues it raised, what material was brought to bear by parties with a view to their resolution and how they were resolved.

[65] Senior counsel for the pursuers adopted and reinforced his junior’s submissions under reference to what had been said by the English Court of Appeal in Flannery and Anya. A failure by a judge of first instance to give reasons for a conclusion essential to his decision was a freestanding ground of appeal. When faced with inadequate reasoning in the opinion of the lower court, an appellate court may be tempted to try and work out why the lower court had decided as it did. The Court of Appeal in Anya at para.22 warned against this course of action, firstly, because it is an invitation to an appellate court to speculate in circumstances where it was the duty of the first instance court to explain itself and secondly, it requires the appellate court to assume as decided against the appellant the very issues which might for all the appellate court knows have been determined wholly or partly in his favour.

The pursuers’ criticism of the Lord Ordinary’s approach to the explanation of his assessment of fact

[66] According to counsel for the pursuers, the Lord Ordinary had failed to demonstrate that he sufficiently understood the topic of baseline variability, which was central to the case. He had failed to explain the gist of the evidence of each of the expert witnesses. His language, for example in paras 7 and 176 of his opinion, would suggest that he had set himself to do no more than to provide an outline rather than full reasons. He had failed to explain his decisions on the important issues. His reasons were accordingly left obscure rather than being made transparent. In part, this was a consequence of the Lord Ordinary’s undiscriminating adoption of the defender’s submissions. At para.142 of his opinion the Lord Ordinary states: “My core finding, in relation to alleged negligence, is that the defender’s staff fulfilled all duties properly incumbent upon them”. Then at para.143 he explains that finding in these terms: “I reached that conclusion essentially for the reasons outlined by the defender in their written submissions” (emphasis added). The defender’s submissions were, by their nature tendentious and controversial. They were lengthy, addressing a large number of issues. To adopt them in the way the Lord Ordinary had done did nothing to explain, even to the parties, what were

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the points or reasons that the Lord Ordinary had found to be persuasive.

Matters were made even less clear by his use of the adverb “essentially”—what exactly did that mean? Parties at least had access to the defender’s written submissions. This was not so in the case of interested members of the public or the profession reading the Lord Ordinary’s opinion on the Scottish Court and Tribunal Service website. A reference to a written submission which is not published adds nothing to an understanding of an opinion. Similar observations can be made in relation to what the Lord Ordinary says at para.216—“I was not satisfied that (Rowan) entered a gasping phase or agonal gasping shortly before birth. I did not accept the pursuer’s submissions to that effect— essentially for the reasons outlined by the defender (at p.127 paras 7.40 et seq of the defender’s principal submissions)”. While it is true that that is a reference to a specific passage in the defender’s submissions, a number of different reasons are put forward there for rejecting the pursuers’ theory of agonal gasping. The Lord Ordinary’s adoption of the whole passage fails to explain what were the reasons he had accepted. Again, what is to be made of the adverb “essentially”? Another example of obscure and confusing language was to be found in para.161 where the Lord Ordinary states: “In general terms, I agree with many of (counsel for the defender’s) propositions.”

[67] At paras 166 and 173 of the Lord Ordinary’s opinion there are references to there having been “insufficient” evidence whereas in the absence of any requirement for corroboration, sufficiency cannot be an issue. Although the Lord Ordinary had included Karanakaran v Secretary of State for the Home Department and Toremar v CGU Bonus Ltd in the list of authorities cited to him and, consistent with these cases, had stated at para.23 of his opinion that he accepted the pursuers’ submission that the evidence should be considered as a whole and that circumstantial evidence can have compelling force, he had not explicitly directed himself on the nature of the fact-finding process in a way that explained what he was going to do and how he was going to do it. The Lord Ordinary had failed to demonstrate that he had followed the Karanakaran approach. It is at least possible that in rejecting evidence as “insufficient”, he set himself an inappropriately high standard. His treatment (at paras 18 and 155 of his opinion) was exiguous and inconsistent.

[68] At least in one respect, the Lord Ordinary had failed to demonstrate that he understood the point in issue, indeed he would appear not to have done so. Para.172 of his opinion is in these terms: “I was not satisfied that there (sic) any negligent failure to monitor the foetal heart rate after 01.12 hours. I accepted the evidence of Midwife (MacPherson) that intermittent monitoring would have occurred. She was an experienced midwife (albeit retired for eight years and aged 73). In any event, the pursuer failed to establish that there would have been signs of distress audible on intermittent auscultation such that delivery should or could have been expedited.”

A

The pursuers were not maintaining that there would have been signs of distress audible on intermittent auscultation. It was their position that neither intermittent auscultation nor any other sort of monitoring was carried out after about 01.12.

[69] It was submitted that the Lord Ordinary had failed to provide assessments of the witnesses which, had he done so, might have explained his acceptance or rejection of their evidence. This was a case where there were disputes as to fact. In particular there was a dispute as to whether intermittent auscultation had been carried out on the first pursuer after 01.15 on 2 June

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and whether Dr Sharkey had indeed met with the pursuers to discuss the events surrounding Rowan’s birth, as Dr Sharkey claimed to have done. The first pursuer had denied Midwife MacPherson’s account of carrying out auscultation and the pursuers had no recollection of the meeting that Dr Sharkey spoke of. In addition there were differences of opinion in the expert evidence. Despite this the Lord Ordinary did not address the credibility and reliability of the factual witnesses beyond some bland and global remarks at para.155 to the effect that he found the witnesses of fact to be credible and as reliable as might reasonably be expected given the circumstances and the lapse of time and the statement (apparently contradicted by his rejection of the first pursuer’s evidence) that the credibility of the pursuers was not in doubt.

The pursuers’ criticisms of specific findings in fact

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[70] The pursuers identified a number of specific findings in fact by the Lord Ordinary which, for reasons they put forward, they submitted were inadequately explained. These findings have already been set out in this opinion at para.51.

They are however repeated below, printed in italics. The numbers preceding them are the paragraph numbers from the Lord Ordinary’s opinion.

[60] CTG was commenced at or about 18.14 on 1 June 1999 and ran until about 01.12 on 2 June 1999.

[71] A copy of the CTG trace was lodged as a production. The final portion is No 6/2/163 of Process. The relevant time period can be derived from the printed grid-lines. The pursuers’ initial position was that in finding that the CTG ran until 01.12, rather than 01.15, the Lord Ordinary had reached a conclusion that was inconsistent with the evidence and the submissions of both parties. However, it came to be accepted by counsel that what was of importance to the pursuers’ case was the appearance of the trace rather than its precise timing and this criticism was withdrawn.

[62] At commencement of the CTG trace there was a base line foetal heart rate of around 140 beats per minute with frequent accelerations and excellent base line variability. This fairly normal pattern continued throughout the trace.

[78] Following a second dose of diamorphine at around 21.50 there was a further dampening of the baseline variability, but it still remained above five beats per minute. There were occasional early or variable decelerations that were very brief in duration. Administration of diamorphine has a typically suppressive effect on reactivity but the remaining variability in the foetal heart rate after opiate administration is reassuring. The trace generally was reassuring and reactive.

[85] After siting of the epidural at about 22.30 there were a number of variable decelerations against the background of normal baseline rate and variability and the continued presence of accelerations. Most of the decelerations had a drop from baseline of less than 60 bpm and lasted less than 60 seconds. Accordingly they are classified as typical. Normal variability continued throughout and can be seen both in the baseline and within decelerations. Both variable and early decelerations are common as labour progresses. Variable decelerations are usually due to intermittent cord compression. Early decelerations are usually due to foetal head compression. Neither form of deceleration indicates serious foetal compromise.

[90] From 23.40 contractions were 4:10 or 5:10.

[91] The CTG showed early decelerations but was otherwise reactive . . .

[72] What he described as the Lord Ordinary’s bland conclusion, at para.62 that the CTG trace had exhibited a fairly normal pattern (and, implicitly, was properly interpreted by those responsible at the time) was, submitted junior counsel for the pursuers, arrived at in the face of a substantial body of evidence

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 141 to contrary effect and yet this evidence is neither mentioned nor analysed. No reason is given for its rejection. When senior counsel for the pursuers came to address us, he described the finding in para.62 in the absence of any accompanying explanation as a dereliction of the Lord Ordinary’s duty to do justice between the parties. One simply could not know the state of his understanding of the science or what his thought processes were given the particular evidence that he had heard.

[73] By way of illustration of evidence that in the period up to discontinuation of CTG monitoring the trace was neither normal or reassuring and therefore contrary to what the Lord Ordinary records by way of his findings, junior counsel for the pursuers referred to the following quotations from the evidence of witnesses: Karen Marnoch: “22.00 . . . suspicious yes but it is only one sector of a large trace”; Jean McConville: “abnormal CTG from 2308”, “baseline variability remains reduced.The deceleration pattern has got biphasic features”; Sister Richmond: “biphasic decelerations (at 01.10)”, “I did not give it any thought at the time”; Professor Draycot: “Pathological by 2200” “trace from about 00.50 . . . definitely of concern”, “slightly more sinister than the preceding decelerations but they are all sinister”; Dr MacPherson: “The biphasic element means that the deceleration is prolonged and is a more ominous development . . . This is a worsening pattern. . . . It is getting worse”; Dr Hulse: “should the delivery of this baby with that trace have been expedited?—If possible, yes . . .”; Professor Walker: “it would have been preferable to have a continuous monitor in theatre” “(other witnesses) have all expressed the view that that last part of the trace from about 00.55 hours through to the end of the trace does indicate, in their view foetal distress. Do you agree with that?—I would agree with that”, “it is a deterioration of the trace . . . I would expect it to be noticed . . . I would expect someone to have looked at this section of the trace at some point”, “a suspicious trace”; and Dr Sanders: “this section . . . between 21.50 and 22.10 I think there would be justification in . . . becoming concerned and wanting to closely observe it to see whether these features were going to progress”, “the final deceleration would be concerning . . . you would note it”, “starting at 00.54, a series of decelerations that actually decrease in depth up until 0110 . . . those decelerations . . . I take it you would not describe them as anything more than suspicious?—That is correct, yes. . . . Would you expect them to have been observed? They would have been observed”.

[74] Junior counsel for the pursuers accepted that the passages he had referred to had been selected because they were favourable to the pursuers’ contentions that the CTG trace showed signs of foetal distress from about 22.00 and that by 01.15 the pattern was such that if observed and competently interpreted the Caesarean section should have been expedited to something like a “crash” or “section 1” procedure. However, the passages did illustrate that there was evidence to support the pursuers’ contentions and that it came from a number of witnesses, including experts led by the defender. The Lord Ordinary was obliged to consider this evidence (as he said he had) but also to deal with it in the sense of explaining what he made of it and, if he rejected it or construed it differently from the way the pursuers suggested it should be construed, explain why. He had not done that or at least not in any way that was adequate.

[94] At about 00.35 the Registrar, Dr (Sharkey), noted that “CTG—has been marked earlies throughout but otherwise reactive”.

[97] At 00.40 the CTG trace demonstrated a positive response to scalp stimulation, indicating the foetus was not hypoxic.

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[98] Dr (Sharkey) telephoned Dr (Hulse), the on-call consultant obstetrician and gynaecologist, from the labour ward midwifery station at about 00.50. She informed Dr (Hulse) that the patient was diabetic; of her findings on vaginal examination; and that the trace showed early decelerations. She discussed with him whether the pursuer should be allowed to labour for a further hour to see if the labour would progress. Dr (Hulse) advised caesarean section was now indicated given the diabetic status of the pursuer and the failure of labour to progress. His instruction was to perform a caesarean section.

[99] The decision to proceed to caesarean section was due to the pursuer’s failure to progress in labour. The caesarean section was not undertaken because of any perception that (Rowan) had become hypoxic or otherwise compromised in utero.

The caesarean section was classed as “emergency”, in the sense that it was not an elective or pre-planned procedure. It was not a “crash” or “Grade 1” section (requiring delivery within 30 minutes) and there was no clinical indication for such. Normal practice at the time was for delivery within about 60 to 90 minutes of the decision to proceed to emergency caesarean section. The position had to be explained to the pursuer and her consent to caesarean section obtained. It would have taken five to ten minutes to transfer the pursuer from the labour ward to theatre. A theatre team including nursing, anaesthetic and paediatric staff required to be assembled. The pursuer had to be prepared for the procedure, including shaving, draping and skin preparation. Anaesthesia was required.

[100] Throughout the period of the CTG, until discontinuation at 01.12, the material features of the trace were not such as to require early delivery, or alteration in the obstetric management.

[75] Again, it was the pursuers’ position that the Lord Ordinary had not provided adequate reasons for the findings contained in these paragraphs of his opinion and, in particular the findings relating to how the CTG trace should have been interpreted and how that should have informed the degree of urgency in carrying out the Caesarean section. The conclusion at para.100 was not one that could be reached without consideration, and therefore discussion in the opinion, of the evidence and particularly the evidence to contrary effect. The Lord Ordinary provides no such discussion.

[76] The pursuers’ counsel accepted that Dr Sharkey had made the note recorded at para.94 and that she had telephoned Dr Hulse, albeit that the pursuers’ position at proof was that the call had been made earlier than 00.50.

There had also been an issue as to how long it would have taken to prepare the first pursuer for theatre once the decision had been made to carry out a Caesarean section, on the one hand in normal circumstances and on the other if things had been hurried along. The Lord Ordinary had simply presented his conclusions without any discussion as to how he had resolved what were important issues of timing.

[77] An important part of the pursuers’ case, which, according to counsel, was not addressed by the Lord Ordinary, was that Dr Sharkey’s assessment of the trace had been negligent and in relaying information to Dr Hulse that she had created a false impression. If Dr Hulse had been given what the pursuers contended was the true picture there would have been more urgency in his instruction to carry out a section. Again there was support for the pursuers’ position in the evidence. Dr Sanders had said that the CTG trace was “suspicious” at 00.35 on 2 June and that the description of the trace given by Dr Sharkey to Dr Hulse was inadequate. Professor Walker had said that the trace was suspicious, and had he been the consultant, he would have wanted to know what Dr Sharkey meant to convey by her description and would have questioned her. Sister Richmond, the sister on duty at the time, said that Dr Sharkey’s description was wrong. Dr Sharkey herself accepted that she had

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 143 misclassified the trace. The impression that Dr Sharkey had given to Dr Hulse was that the CTG trace was fine. Dr Hulse said that if, at the time of his phone call with Dr Sharkey he had seen the trace which was shown to him in the witness box or had it been properly described he would have expedited the Caesarean section. Accordingly, so it was submitted on behalf of the pursuers, in finding as he had, the Lord Ordinary would seem to have rejected Dr Hulse’s evidence, despite the fact that he was the obstetrician in charge of the unit, that the Caesarean section procedure could be hurried along without it having to be a category 1 or crash section. The situation at 00.35 and what ought to have been done then was important because, if Dr Hulse had been present, or had been given the correct information, Rowan would have been born before she was and, on the pursuers’ case, spared brain damage.

[103] CTG monitoring equipment was not routinely available in theatre.There was no indication to transfer CTG monitoring equipment to theatre. That would have taken time. The presence of CTG equipment in theatre can make it difficult to access the patient when they are being prepared for caesarean section.The CTG was discontinued, as was normal practice at the time, shortly before transfer to theatre and in the context of an acceptable foetal heart pattern.

[78] The pursuers took issue with the Lord Ordinary’s uncritical acceptance of the supposed “normal practice” of not continuing CTG monitoring once the first pursuer had been removed from the labour ward to theatre. The Lord Ordinary had failed to address the contention that the practice was not logically supportable and, in any event, in the case of the first pursuer, ran contrary to the defender’s own protocol for diabetics.

[79] Counsel for the pursuers drew attention to the evidence that there was a general instruction, or protocol, that diabetic women in labour should be provided with continuous CTG monitoring in the sense of using a CTG machine to provide a printout, beat-to-beat, during the entire labour. Despite that protocol, in this case the machine was disconnected when the first pursuer left the labour ward to go to theatre at 01.15 hours, 47 minutes before she gave birth. She was not reconnected once her trolley had been pushed the 150 yards to the operating theatre. It was the pursuers’ submission that whatever was “normal practice”, the protocol demanded continuous CTG monitoring.

The Lord Ordinary does not mention that the protocol was not followed.

Moreover, the Lord Ordinary’s reference to “an acceptable foetal heart pattern” is made without any mention of the last section of trace. The pursuers’ case was that it was negligent not to reconnect the CTG machine once the first pursuer had been transferred to theatre. It would have been straightforward to do so, as Dr MacPherson and Professor Draycott had explained, and it could have been in place until five minutes before incision. The defender’s expert, Professor Walker, had accepted that, based on the appearance of the last section of trace, it would have been preferable to take the continuous CTG to theatre rather than rely on handheld auscultation. The defender’s midwifery expert, Dr Sanders, had said: “I may have considered taking the monitor to theatre.” Dr Hulse gave evidence about the advantages of continuous CTG over intermittent monitoring. The defender had an obstetrics expert, Dr Mathers, who was not called as a witness. His report had however been seen and agreed to by Midwife McConville and Professor Draycott.

According to the report where there was no physical reason to discontinue the CTG its continuation was mandatory. While the “normal practice” of not taking the CTG to theatre may not have been challenged on behalf of the pursuers by saying to, for example Professor Walker, “I put it to you that this

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was not a logically supportable practice,” there had been evidence from various sources about what was done and why, and a submission had been made that, not to take the machine to theatre was simply not logically supportable. It was therefore clear that the pursuer was saying that it was negligent not to have taken the machine to theatre. The lack of continuous CTG monitoring was important because Professor Draycott gave evidence, based on the medical records, that there was a drop in FHR between the continuous CTG being turned off at 01.15 (150 bbm) and delivery at 02.02 (60 bbm or less). The Lord Ordinary was invited to infer that, had the machine been connected, the drop in the heart rate would have been noted, the Caesarean section process would have been speeded up and the birth would have been earlier, thus saving Rowan from injury.

[104] Following transfer intermittent foetal heart monitoring was carried on by Midwife MacPherson. A handheld “Sonicaid” was used to listen to the heart whilst manually monitoring the nature of the contractions. This was in 1999 a standard practice. Midwife MacPherson continued to monitor the foetal heart rate in the anaesthetic room and then in theatre until the Caesarean section commenced.

[80] Whereas the Lord Ordinary finds that there had been intermittent auscultation after 01.15, the pursuers’ case was that there was no monitoring of FHR, continuous or otherwise, after 01.15. The defender’s case was that there was occasional monitoring with the handheld Sonicaid. This was a point of controversy between, on the one hand, the two pursuers, who said there was no monitoring with a handheld device, and the midwives and Dr Sharkey, who said that there was. There were no records of monitoring after 01.15 albeit that Midwife MacPherson said that she had made notes which were recorded on a separate piece of paper. The Lord Ordinary found that the pursuers were credible. There had been no submission that they were unreliable on this matter. Nevertheless the Lord Ordinary gives no explanation as to why he apparently preferred the evidence of the midwives and Dr Sharkey to that of the pursuers. He does not say anything about the circumstances of the loss of the notes.

[105] There was no indication to further expedite delivery. In any event discontinuation of syntocinon upon transfer to theatre would have meant a decrease in the frequency and strength of the contractions. It was reasonable to assume (bearing in mind the absence of other adverse factors and following a positive response to scalp stimulation at 00.40) that the foetal condition would improve or at least not deteriorate.

[81] The pursuers’ position on this was that the Lord Ordinary’s finding that there was no indication to further expedite delivery (it having been decided to proceed delivery by section given failure to progress labour) was unduly favourable to the defender, given the evidence drawn attention to by the pursuers in relation to the appearance of the trace prior to 01.15 and the drop in FHR between then and birth and the circumstance that the defender’s staff had lost the contemporaneous notes. The Lord Ordinary had not considered the evidence about the last section of trace. Having found that it was not negligent to disconnect the continuous CTG, notwithstanding the absence of logical justification for so doing, the Lord Ordinary does not make any finding about what would likely to have been seen on the trace had CTG monitoring been continued. The Lord Ordinary relied on a positive reaction by Rowan, in the form of an increase in heart rate, at 00.40 when her scalp was touched and “the absence of other adverse factors” to draw the conclusion that there was no indication to expedite delivery. He fails to mention that there were other

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 145 factors, such as the appearance of trace after 00.35 hours, and what would have been seen on continuous CTG after 01.15. It was submitted on behalf of the pursuers that if the defender has no notes or has lost notes then an adverse inference should be drawn against it so as not to put the pursuers at a forensic disadvantage due to a failure on the part of the defender in properly carrying out its responsibilities. That was not an approach adopted by the Lord Ordinary.

[107] The anaesthetic record commenced at 01.30. It would have taken 20 to 30 minutes to test the epidural already in place, administer a test dose of anaesthetic agent and top up the anaesthesia with a further dose before confirming there was a satisfactory block to allow the caesarean section to proceed.

[111] Delivery was approximately 67 or less minutes after the decision was made by Dr M H and agreed with the pursuer, and in accordance with normal and reasonable practice.

[82] The pursuers’ criticisms of these findings were that the relevant evidence is not set out. The Lord Ordinary does not place the findings in context. What is normal and reasonable in one set of circumstances is not normal and reasonable in another. The Lord Ordinary had made no finding about how soon the Caesarean section could have taken place had there been a decision to get on with matters more urgently in light of, for instance, proper action by Midwife MacPherson from 23.00 hours, a correct description of the trace to Dr Hulse, notice being taken of the last section of trace or Rowan’s condition being shown to be deteriorating on continuous CTG after 01.15.

[117] (Rowan’s) condition at birth could not have been reasonably anticipated from the appearance of the CTG up to 01.12 and foetal monitoring thereafter.

[83] The pursuers’ submission was that, again, a finding had been made without reference to the evidence to the effect that Rowan’s condition in utero ought to have been a matter of concern or to the inference that ought to be drawn about her deteriorating condition between 01.15 and birth.

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The pursuers’ criticism that the Lord Ordinary failed to address factual issues bearing on the evaluation of the evidence of Dr Sharkey and Midwife MacPherson

[84] Two issues arose in relation to what happened after the birth and resuscitation. Neither related directly to a ground of fault, but it was submitted on behalf of the pursuers that they did have a bearing on how the Lord Ordinary should have approached the evaluation of evidence which did have a bearing on grounds of fault and therefore they should have been the subject of findings in fact.

[85] The first of these issues was whether Dr Sharkey went to visit the first pursuer and what was said and why. There was evidence that Dr Sharkey had visited the first pursuer in the ward and thereafter made a self-serving note to the effect that the first pursuer was happy with everything. It was submitted on behalf of the defender that the self-serving aspect of this was not put to Dr Sharkey but that is not correct. Counsel for the pursuers had asked Dr Sharkey what she was doing making a note recording that she had been exonerated by the first pursuer. At para.155 the Lord Ordinary rejected as unfounded the suggestion that any of the defender’s witnesses were selfserving but does not explain why. Neither did he analyse the credibility and reliability of Dr Sharkey’s evidence.

[86] The second issue was about the missing notes (said to have been made

by Midwife Macpherson) and the lack of a contemporaneous inquiry or at

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least any record of such an inquiry. The significance of this was that the pursuers were put at a forensic disadvantage by the defender’s failure to keep a contemporaneous record. This was a reason to draw inferences where possible in favour of the pursuers but the matter was not mentioned by the Lord Ordinary and no adverse inferences were drawn.

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[87] On behalf of the defender junior counsel submitted that the pursuers’ approach, for all its emphasis on principle and generous citation of authority, did little to assist in providing a correct definition of adequate reasons. Dingley was not an analogous case; there no reasons whatever had been given. Reasons were primarily intended for the parties and the adequacy of reasons can be judged by reference to the state of their knowledge. In the defender’s submission, for reasons to be adequate it was enough if parties were able to understand why a particular decision has been reached; why one party had won and the other party had lost. The standard is an objective one and does not depend on any assertion that an actual party has not understood something. Not every item of evidence requires to be minutely examined. It did not follow from the fact that the expert evidence had been detailed that detailed reasons were required from the judge. It was to be borne in mind that after proof the Lord Ordinary had been provided with written submissions which, taken together, represented a lengthy and detailed analysis by the parties of the evidence in the case and of the applicable law. This analysis was discussed and made use of by the Lord Ordinary in his opinion. Whereas both parties also made oral submissions the matters that the Lord Ordinary was asked to determine were broadly those matters dealt with in the written submissions. Many of the findings in fact had been the subject of admissions in the pleadings or were uncontroversial in the sense of having been based on medical records as spoken to by witnesses who had not been challenged. Not everything required the same level of scrutiny.

One had to have regard to what were the important issues in the particular case and, critically, the issues upon which the decision might turn.

[88] Where the allegation is one of clinical negligence it is open to the judge to determine the issue of fault on the basis of the defender’s expert evidence where there is no rational basis for discounting it: Bolitho v City and Hackney Health Authority and Honisz v Lothian Health Board. This was of relevance in the present case. The pursuers had submitted to the Lord Ordinary that this was not a deviation from normal practice case. That was a reference to the passage in the decision in Hunter v Hanley at p.220 which states that where it has been established that there is a usual and normal practice and that the relevant practitioner has not followed that practice, he may be found liable for negligence if, but only if, no professional person of ordinary skill would have taken that course if acting with ordinary care. That is an aspect of the more general test for professional negligence laid down in the same case: for negligence to be established the court must be satisfied that the course of action criticised was one that no professional person would have taken if acting with ordinary care. On the pursuers’ approach the interpretation of the CTG trace and the action to be taken in response to that interpretation were matters of ordinary skill and care or common sense. For the pursuers it was enough for them to succeed if the Lord Ordinary preferred the evidence of their experts to that of the defender’s experts. The Lord Ordinary had (correctly) rejected that approach. In his view (and this is not challenged in this reclaiming motion) the interpretation of a CTG trace and therefore the action to be taken in response to the appearance of a particular trace, are matters of clinical

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 147 judgement and therefore if in the particular instance they are said to have been negligent that must be determined by the familiar test in Hunter v Hanley.

This had a bearing on the adequacy of the Lord Ordinary’s reasoning when determining the pursuers’ claim. In moving the reclaiming motion the pursuers’ approach had been to look at passages in the evidence demonstrating their case at its height. The pursuers accepted that there had been evidence to contrary effect, supporting the actions taken by the defender’s staff in their management of the delivery. This proper concession was critical. In a deviation from normal practice case, as the Lord Ordinary had correctly held this case to be, for the defender to succeed it is sufficient that that evidence be accepted by the Lord Ordinary as reflecting a body of responsible professional opinion which was not Bolitho irrational. Given that the defender’s experts had not been challenged on the basis that their views were irrational, there was a simple route for the Lord Ordinary to decide on cases of fault which all related to the exercise of clinical judgement. Moreover, there were a number of evidential steps to be taken before the Lord Ordinary could find that but for what was said to have been negligence the delivery would have been expedited. In the absence of the necessary pieces of evidence the pursuers’ case had to fail. It was accordingly unnecessary for the Lord Ordinary to subject every element of the case to same degree of scrutiny.

[89] The Lord Ordinary’s findings in relation to whether CTG monitoring equipment should have been taken to theatre are in para.103 of his opinion.

Evidence that, unless otherwise requested, discontinuation of the CTG was in accordance with normal practice had gone unchallenged. The appropriateness of the decision to discontinue monitoring in this particular case was the subject of expert evidence led by both parties. The ultimate position of the pursuers’ experts was that intermittent auscultation was sufficient but in any event, expert evidence supportive of intermittent auscultation had been led by the defender. The Lord Ordinary’s findings are clearly explicable with reference to this unchallenged evidence of normal practice and his finding that the approach in Bolitho and Honisz applied: opinion paras 159 and 161.

The Lord Ordinary’s findings in relation to the incidence of intermittent fetal monitoring and note taking after the cessation of the CTG trace at about 01.12 are contained in paras 103, 104 and 106. He accepted that intermittent monitoring was carried on by Midwife MacPherson in the anaesthetic room and in theatre until the Caesarean section occurred. These findings, read together with paras 4 and 172, demonstrate that the Lord Ordinary took into account all of the evidence and accepted Midwife MacPherson’s evidence on this point, as he was entitled to do. There was no real challenge by the pursuer to Midwife MacPherson’s evidence that she carried out intermittent monitoring, other than to question whether it was possible she had not done so (a possibility she conceded, although she maintained it was not a probability).

The evidence of the second pursuer was not inconsistent with Midwife MacPherson’s evidence. He did not observe monitoring but was not present in theatre at the relevant time. The first pursuer’s evidence, read as a whole, amounts to an inability to recollect intermittent monitoring, which is not of itself inconsistent with Midwife MacPherson’s evidence. To the extent there was any discrepancy between the pursuer’s evidence and that of Midwife MacPherson any difference is explicable by the Lord Ordinary’s finding that the witnesses to fact were as credible and reliable as might reasonably be expected given the passage of time: opinion para.155. In a number of respects the first pursuer had been unable to recall documented events, and was confused as regards timings or the sequence of events. That the Lord Ordinary did not

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expressly comment upon any possible inconsistency between the evidence of the pursuer and her husband and that of Midwife MacPherson does not provide a sufficient basis for the appellate court to interfere with his conclusions.

The Lord Ordinary enjoyed the advantage of hearing from the witnesses at first hand. The appellate court is bound, in the absence of compelling reason to the contrary, to assume that he has taken the whole of the evidence into his consideration. There is no basis upon which to interfere with his conclusions unless it is possible to conclude that he was so clearly wrong that an alternative judgment on the facts ought to be substituted: Thomas v Thomas at p.61. There is no material inconsistency between the Lord Ordinary’s findings in relation to the credibility of the pursuer and her husband on the one hand, and his findings in relation to the credibility and reliability of all of the witnesses to fact on the other. The only material factual dispute related to whether monitoring took place after the pursuer was transferred to theatre at about 01.15. The pursuers did not seek to challenge Midwife Macpherson’s evidence in respect of any alleged failure to monitor except to suggest to her the possibility that she had not carried out any monitoring. There was no other material inconsistency between the factual witnesses.

[90] In response to the point that the Lord Ordinary had failed to mention an important challenge to Dr Sharkey’s evidence, counsel argued that there was in fact no conflict for the Lord Ordinary to resolve in that both pursuers had been asked about speaking to Dr Sharkey. Neither remembered having done so but they did not go the distance of saying that it did not happen. It had not been put to Dr Sharkey in re-examination (she having been led for the pursuers) that the meeting did not happen.

Discussion

[91] As Lord President Rodger said in Dingley v The Chief Constable of Strathclyde Police at p.555D, “parties who come to court are entitled to the decision of a judicial tribunal . . . such a decision must be reasoned . . . an oracular pronouncement will not do”. In the present case that proposition was uncontroversial. The discussion related to what amounted to sufficient reasons and whether sufficient reasons were to be found in the Lord Ordinary’s opinion. In their respective submissions parties emphasised considerations which, on the one hand, pointed to the need for much fuller explanations than the Lord Ordinary had provided and, on the other, supported the view that the reasoning which was apparent from his opinion was adequate in the circumstances of the case.

[92] In the Court of Session where the court has made avizandum (in other words has reserved judgment) when it comes to pronounce its decree the interlocutor containing that decree will almost always be accompanied by an opinion of the court. Neither statute nor the Rules of Court impose any requirements as to the form such an opinion should take or what it should contain. There is therefore considerable scope for the judge drafting the opinion to adopt his or her preferred organisation and to express his or her personal style. However, the opinion is the opportunity, and the only opportunity, for the judge to explain his or her decision. Just what is required for an adequately reasoned decision will depend on the circumstances of the case and we do not intend anything we say to be prescriptive or in any way to limit the freedom of judges to adopt their own approach, but some observations are of general application.

[93] In contested litigation the decision of a judicial tribunal is required because parties are at issue on points of fact or points of law or on the

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 149 application of the law to the facts or on some or all of these matters. As the whole purpose of a judicial decision is to resolve issues of this sort, it is to be expected that an opinion will identify what were the issues the court had to resolve in the particular case. Then, because proceedings are adversarial and based on the assumption that it is for parties to put before the court the material by reference to which the issues are to be resolved, the opinion should record that material, whether it be in the form of evidence, citation of legal authority or argument based on that evidence and authority. This need not be done verbatim or necessarily at great length; the summarising and marshalling of points at an appropriate level of generality with a view to focusing what is relevant to a resolution of the issues and not getting lost in detail is an important judicial skill. However, with the recording of what was put before the court, as with other aspects of a legal decision, regard must be had to the various audiences which the court should be addressing. The primary audience is made up of the parties. By recording the material which they put before it the court is providing the parties with the reassurance that they have been heard. The court has a wider audience. Its decisions are public documents and published as such. They may be included in the law reports. By identifying the issues for decision and the materials that parties brought to bear with a view to determining these issues, the court’s opinion is explaining to any interested member of the public what the case is about and what, if any, is its general importance. Another audience or at least potential audience is any appellate court which may be required to consider the court’s decision. It will need to know what material was put before the lower court because almost inevitably it will be by reference to that material that the appellate court will require to judge the correctness of the decision under appeal.

[94] Where a decision requires the resolution of disputed issues of fact an opinion should make clear how these issues have been resolved. That means making findings of fact, whether findings of primary fact or findings of the nature of inferences based on primary facts. There is no requirement that they appear as an enumerated list as, for example, is the practice in the sheriff court, but if any matter of fact is relevant to the decision it should be apparent on the face of the opinion what the court has found that fact to be. Equally, if the court declines to resolve a particular matter of fact as to which parties were in dispute, on the view that it is unnecessary to do so or it has not proved possible to do so, that should be stated in terms.

[95] An opinion should make clear the basis upon which facts have been found. Some will never have been contentious in that they were the subject of admission in the pleadings or formal agreement by joint minute. Some will turn out not to be contentious as a consensus develops among the witnesses or between counsel in the course of a proof. Evidence may simply not be challenged. Where findings in fact are uncontentious for one or other of these reasons that should be explained. Where a finding is made in respect of facts that were disputed, the opinion should explain the basis upon which that has been done. That will include identifying evidence which is to contrary effect.

Where the explanation is the acceptance of a witness who was challenged or the preference of one witness or a number of witnesses over another or other witnesses that again must be explained. The explanation will usually be articulated in terms of credibility and reliability but mere certification of a witness or witnesses as credible and reliable and therefore worthy of acceptance is not good enough. If a judge has believed a witness and taken the witness’s account to be accurate, he or she must say why that was so, at least in cases where that witness or the witness’s account has been challenged in some way.

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Demeanour can be of importance but generally a judge should explain whether or not he found a witness’s testimony internally consistent and consistent with other evidence, particularly objective and documentary evidence. If motivation or overall probabilities have been relied on, that should be made clear.

[96] Finally, an opinion should explain how the law has been applied in evaluating the evidence (for example, in relation to onus of proof) and then applied to the facts.

[97] When viewed in the light of these considerations we conclude that the Lord Ordinary’s opinion in this case is deficient; it sets out how the Lord Ordinary has resolved the issues before him but it does not adequately explain why he resolved them in the way he has.

[98] Our first observation about the Lord Ordinary’s opinion is that it is written exclusively for the parties and not for its other potential audiences.

The Lord Ordinary assumes that his reader has access to the parties’ written submissions. He says that in terms at para.44 of his opinion when he explains that he does not propose to rehearse the detailed submissions of parties which have already been reduced to writing “and are known to parties” (emphasis added). Of the 62 pages of the Lord Ordinary’s opinion, no less than 15 are taken up with lists, either of authorities referred to by parties or the topics in the written submissions. It is not clear what value these lists were thought to have; they do nothing to advance the understanding of a reader who does not have access to the written submissions.

[99] Senior counsel for the pursuers said of the Lord Ordinary’s opinion that it had failed to exhibit learning. It may be by that counsel meant to suggest that the Lord Ordinary had not troubled to acquire the requisite understanding of the relevant physiology and medical practice. We have not drawn that inference but another way of putting the pursuers’ criticism that would seem incontrovertible is that the Lord Ordinary assumes that his reader is familiar with the relevant physiology and medical terminology. To those without that familiarity and who do not set themselves to acquire it, what appears in paras 51, 56, 58, 59, 70–72, 75, 79, 83, 84, 86–90, 92, 93, and 96 will remain obscure. Senior counsel instanced para.90: “From 23.40 contractions were 4:10 or 5:10” as one example of what he described as “jargon”. That is perhaps unfair. At para.51 of his opinion the Lord Ordinary explains that the annotation “4:10” indicate four uterine contractions every ten minutes. However at no point in the opinion is the reader told what is the significance of that or any other rate of contractions. One explanation for that may be that the Lord Ordinary takes the view that he is addressing a well-informed audience: the parties and their medical and legal advisers. That is however only partly true.

An appeal court, for example, may be expected to understand that regular contractions are synonymous with established labour but the rate of contractions is unlikely to mean very much to it without something by way of explanation. Another possible reason for the absence of any explanation in para.90 is that the rate at which the first pursuer was contracting from 23.40 on 1 June was of no particular relevance to the issues in the case. If that is so its presence in the opinion is a distraction and it should perhaps have been omitted, along with other correct but irrelevant details of the progress of the first pursuer’s labour. On the other hand, if this and similar details were relevant to informing the overall clinical picture and the decision-making of the clinicians involved then the opinion should have explained that. It is the absence of explanation of these small and perhaps immaterial details (even to the extent of saying that they are unimportant but are included in order to provide a complete narrative) as well as of more critical findings that allowed

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 151 counsel for the pursuers to suggest that there had been a failure of engagement with and analysis of the evidence by the Lord Ordinary.

[100] Our second observation follows from the first and it is that the very terse style in which the Lord Ordinary expresses his decision leaves his thought processes largely obscure. That the reasoning which underpins a judicial decision should be transparent is uncontroversial. The reasons for that are set out in Dingley and the English cases to which we were referred: English; Anya; and Flannery.

[101] Our third observation relates to the Lord Ordinary’s technique of supplying reasons by the adoption of a party’s submissions. It cannot be said that to do so will always be wrong. Where the argument is relatively simple or at least capable of being unambiguously articulated, and is articulated in the body of the opinion, then it may suffice simply to adopt it as a preferred contention and the reason for a decision. However, once submissions become at all complex, as they certainly did in the present case, they are intrinsically unsuitable for the purpose of providing a rational underpinning to a particular decision. They are likely to involve alternative combinations of elements offering the decision-maker different routes to a conclusion among which the decision-maker is invited to choose. In contrast a judicial decision must make clear what particular route was followed and which particular factors were taken into account. Moreover, there is the matter of register or tone. Submissions are by their nature advocacy documents which are rhetorical and partisan in nature, intended to have an emotional as well as a rational appeal. Judicial pronouncements on the other hand are, or should be, even-handed in their approach and sober in their expression.

[102] Our fourth observation is that the Lord Ordinary’s opinion is all to do with his decision and very little to do with the controversy which preceded it. We would see that as a deliberate choice of the Lord Ordinary rather than any intellectual failing on his part, but the result of that choice is a document which might serve well enough as an award in an arbitration but which fails to record, as a judicial determination should, the nature of the underlying dispute which the determination has resolved. It is part of the function of a judicial opinion to record how parties approached the issues and what material they put before the court with a view to their resolution. A reader requires that material if he is fully to understand why the case was decided as it was and a party is entitled to the assurance that the material he put forward was considered and, in the event that it is rejected, why that is so.

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Findings that were not made (but which the pursuers submit should have been made): the last section of the trace between 00.35 and 01.15 (ground of appeal 4) The pursuers’ submissions

[103] In addition to the criticism that the Lord Ordinary made findings of fact without explanation of why evidence to contrary effect had been rejected, it was submitted on behalf of the pursuers that the Lord Ordinary had failed to make any findings in relation to what had been an important area of controversy at proof. This is whether anyone looked at the trace between 00.35 and 01.15 on 2 June, what was shown on the trace at that time, and, if what was shown had been noted, what would have happened had those responsible been exercising reasonable care. There ought to have been a finding or findings about these issues (in the pursuers’ note of argument for this court this missing finding is identified as “finding 100A”).

[104] We understood these submissions to be directed to ground of appeal 4, albeit that that ground is couched in terms of the Lord Ordinary having

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erred in failing to explain why delivery would not have taken place sooner had the CTG trace between 00.35 and 01.15 been observed.

[105] It is the pursuers’ position that the evidence was that, had the section of trace between 00.35 and 0[1].15 been looked at, as it should have been

by Midwife MacPherson (a point confirmed by Midwife Sister Richmond, Dr Sharkey and Dr Sanders), it would have given rise to a sufficient degree of concern that, given the practice of the unit, as spoken to by Midwife Sister Richmond and Dr Hulse, the Caesarean should have been expedited as a “crash” section. The adverse nature of the trace had been spoken to by Jean McConville, Dr Sanders, Sister Richmond (who had been present on the ward but who did not turn her attention to the trace at the time), Professor Walker, Professor Draycott and Dr Hulse. Despite its importance, the Lord Ordinary does not deal with this evidence at all. Given the delay in producing his judgment, the Lord Ordinary may have forgotten about it. He may have been distracted by the technical aspects of the evidence about the CTG and the language used to describe the trace. He need not have been; as long as he found that those who were present ought to have considered the trace “suspicious” or “not normal” or “bad” or “not good” or any variant of these descriptions, the Caesarean should have been expedited. While, as the Lord Ordinary notes at para.149 of his opinion, he accepted the submission for the defender that no case had been pled against the midwifery staff in respect of the period between 00.35 and 01.12 hours, he nevertheless exonerates the midwives just to make sure. However he does so without looking at the evidence and without saying why they should be exonerated. It was submitted that the Lord Ordinary ought to have made adequate findings in relation to the midwives’ failures during this period because the evidence criticising them had been led without objection and this was a matter which fell under the general averments of fault on the part of the midwifery staff in the period after 23.00 (see pp.10B–D and 11B–D of the closed record, as it is reproduced in the reclaiming print).

[106] Assuming the decision to deliver by Caesarean section was made at 00.50, 25 minutes passed before the first pursuer was taken to theatre.

Contrary to what would be submitted on behalf of the defender, it was no answer to the pursuers’ contention that in this particular maternity unit the standard of what should have been done by way of hurrying up delivery was that set by Dr Hulse, to lead evidence that other clinicians would not have followed the same course.

The defender’s submissions

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[107] The Lord Ordinary neither found that the last section of the CTG was not observed nor that it was observed. He had been entitled to conclude that there was insufficient evidence in support of such a finding. Sister Richmond’s final position was that she would have been aware of the decelerations in the final section of CTG (i.e., that they would have been observed). There was no concession from Midwife MacPherson that the trace was not observed. At para.166 of his opinion the Lord Ordinary found that the pursuers had failed to establish that delivery could or should have been expedited. Even if Sister Richmond had reported that the appearance of the trace indicated an adverse clinical situation, there was no evidence that it would have been expedited.

This was an obstetric decision and when Dr Sharkey gave evidence she was not asked about this. Further, there was no evidence as to the practicality of expediting delivery in the circumstances of the case. What Dr Hulse would have done is irrelevant (and his evidence on the point was in any event expressed in general terms rather than under reference to the case of the first

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 153 pursuer) because Dr Sharkey would have required to contact him again in order to ask for his advice. There was no evidence as to whether Dr Sharkey, who was the obstetrician who was to carry out the procedure, would have taken the same approach as Dr Hulse. Moreover, there was rational and reasoned expert midwifery evidence led by the defender which was supportive of any alleged failure by the midwives to report the last section of CTG to medical staff (despite there being no case of fault on record directed against the midwives in respect of the period 00.35–01.15 and no motion to amend was made). Thus, the pursuers failed to establish that in the circumstances a report should have been made by the responsible midwives.

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Discussion

[108] The findings which the pursuers say should have been made in relation to the failure by the midwives to report on an adverse trace between 00.35 and 01.15 on 2 June would have supported a case of fault which, as the Lord Ordinary observes at para.149 of his opinion, was not made on record.

Evidence was however led and the Lord Ordinary considered the criticisms of the midwifery staff. He rejected them as not made out on the basis of that evidence (opinion para.166). The pursuers’ contention is that the Lord Ordinary was wrong to conclude as he did having regard to evidence to which they refer. We understand that in this matter as in others the pursuers’ object is to demonstrate in just how many respects the Lord Ordinary went wrong.

However, despite a number of references to the evidence the pursuers’ counsel did not enter into an evaluation of all the evidence relevant to the matter and did not invite the court to do so. At the best for the pursuers we can therefore do no more than note that it is their contention that there was evidence which, had it been evaluated as the pursuers submit it should have been evaluated, should have led to the conclusions that: between 00.35 and 01.15 the CTG was either not observed or not properly assessed by the responsible midwives; and had it been properly assessed it should have prompted a report to Dr Sharkey who then, had she been exercising reasonable care, would have expedited the timing of the Caesarean section.

Failure adequately to analyse and assess the expert evidence (ground of appeal 1(c), (d), (e), and 3)

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The pursuers’ submissions

[109] In the submission of the pursuers the Lord Ordinary had not provided any proper assessment of the expert evidence. In particular he had failed to analyse the expert evidence by reference to the strands relating to each of the four cases that were before the court. The pursuers’ criticisms of the way in which the Lord Ordinary had dealt with the expert evidence were in part an aspect of the contention that the Lord Ordinary had failed to give adequate reasons for concluding as he had, with the consequential inference that he failed to grasp the relevant scientific and medical issues (grounds 1(a), (c) and (d)) and in part a contention that the Lord Ordinary had failed to subject the expert evidence led by the defender in support of the management of the first pursuer to the level of scrutiny associated with Bolitho v City and Hackney Health Authority.

[110] The pursuers pointed to Professor Walker and Dr Sanders having been said by the Lord Ordinary to be “measured” whereas nothing was said about Dr MacPherson and Mrs McConville. Valuable evidence from Dr Hulse had been left out of account. The failures in relation to the analysis of the evidence of Dr MacPherson and Dr Hulse were particularly significant.

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Dr MacPherson was led specifically because she was an ordinary obstetrician in a district general hospital in 1999 and not, as were Professor Draycott and Professor Walker, a doctor at the cutting edge of innovation. Dr MacPherson had been able to give evidence as to what the practice would have been in a hospital like Raigmore at the relevant time. The Lord Ordinary’s opinion barely touches upon her evidence despite it having taken up 100 pages in the transcript in addition to her lodged report. It is no more than mentioned in passing in paras 148 and 151. Her evidence was by no means irrelevant and the Lord Ordinary does not say that it was. She was in the witness box for a day—most of it being cross-examined. Her criticism of those responsible for the first pursuer’s care was that they were too relaxed in the face of adverse indications. If the Lord Ordinary was to set that opinion aside he had to explain why he was able to do so. He had not done so. His approach was perfunctory. In para.148 of his opinion there is an apparent rejection of Professor Draycott: “I do not accept that this views represented the situation in 1999”, who was dismissed as “a bit of a perfectionist” notwithstanding him also being described as “an exceptionally diligent professional”. The Lord Ordinary also rejected Mrs McConville but did not explain upon what basis.

The defender’s experts did not get a much fuller treatment.

[111] In a case such as the present where there was a mass of conflicting expert evidence produced in the course of what was in the nature of an intellectual exchange, it was for the judge to enter into this exchange, not perhaps as an equal but with a degree of understanding of the material before him. A coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons: Eckersley v Binnie at p.77. It is by his reasoning that the judge demonstrates that he has engaged with the material put before him and thereby gives confidence to the losing litigant that the decision was based on the evidence. Here the expert evidence was detailed and complex. The Lord Ordinary had been entitled to use discretion in deciding how to present his decision but, as is illustrated by other opinions following proof on issues similar to the present, for example W v Greater Glasgow Health Board; Coyle v Lanarkshire Health Board; G v Greater Glasgow Health Board; Campbell v Borders Health Board; and Montgomery v Lothian Health Board, one would expect to find set out: the evidence of the various experts; the issues as between the experts; an identification and determination of all questions of credibility and reliability; and a conclusion on all material issues which the expert evidence raised.

[112] In the pursuers’ submission, the Lord Ordinary had similarly failed to deal adequately with their criticisms of the conduct of Midwife MacPherson.

The pursuers’ position was that just after 23.00 (when, according to the finding in para.91 of the Lord Ordinary’s opinion the CTG trace was showing early decelerations but was otherwise reactive) had Midwife MacPherson been exercising ordinary skill and care she would have drawn Dr Sharkey’s attention to what was a concerning trace. As emerged from her evidence it appeared that Midwife MacPherson did not in fact have the skills necessary to identify what was shown by the CTG. Her doing nothing therefore was not the result of the exercise of an informed professional judgement; rather it was the result of incompetence. That point was made on behalf of the pursuers.

However, as appears from paras 155 and 156 of his opinion, the Lord Ordinary simply rejected the criticism of Midwife MacPherson without saying why did so beyond referring to an unspecified opinion of Dr Sanders which he said supported Midwife MacPherson’s management.

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 155 A

The defender’s submissions

[113] The Lord Ordinary accepted the defender’s submission that the expert evidence in relation to liability fell to be tested by reference to the criteria in Bolitho as summarised in Honisz at paras 25 and 159: where there are two opposing schools of thought among medical practitioners as to the appropriateness of a particular practice it is not the function of the court to prefer one over the other; and only in exceptional cases may the court conclude that a practice of responsible medical practitioners does not stand up to rational analysis. The Lord Ordinary was correct to do so. Once it was accepted that this was (contrary to the pursuers’ submission) a departure from normal practice case, in order to establish negligence the pursuers required to demonstrate that the defender’s expert obstetric evidence fell to be rejected as unreasonable or illogical by reference to the Bolitho and Honisz criteria. It was not then a matter of preferring one body of expert evidence to another. The Lord Ordinary would not have been entitled to accept Dr MacPherson and find for the pursuers unless he first rejected the defender’s expert, Professor Walker. No attempt was made to discredit Professor Walker’s evidence on the basis that his approach was unreasonable or lacked a logical basis. The Lord Ordinary accepted the defender’s submission in that regard (opinion paras 142–143, 152 and 161–175). The Lord Ordinary observed that he found the defender’s expert witnesses to be “impressive and measured” (opinion para.155). In the absence of any Bolitho attack it was accordingly not open to the Lord Ordinary to prefer Dr MacPherson and he therefore did not require to explain in further detail why he rejected her evidence (if he did). The Lord Ordinary expressly took into account all of the evidence (opinion para.42). An appellate court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration: Thomas v Thomas at p.61; Henderson v Foxworth Investments Ltd, Lord Reed at paras 48 and 57; and Montgomery v Lanarkshire Health Board, Lord Kerr and Lord Reed at para.102. There is no such compelling reason in this case. The Lord Ordinary’s observations about Professor Draycott were legitimate and must be read in context: the Lord Ordinary was considering whether his views expressed the range of acceptable professional practice in 1999 in the face of contrary evidence and an acceptance by the witness that he had applied a 2001 standard (the [2001] guidelines) to practice in 1999.

[114] For essentially the same reasons, the Lord Ordinary did not require to explain in further detail why he rejected the evidence of Mrs McConville.

The defender led expert midwifery evidence from Dr Sanders which was exculpatory of the responsible midwives. Having concluded, correctly, that what Dr Sanders said could not be rejected as unreasonable, irrational or illogical, the Lord Ordinary did not require to explain in further detail why he rejected the evidence of Mrs McConville. It was not a matter of preferring either side’s expert evidence but of determining whether the defender’s experts could be rejected. In any event the Lord Ordinary explained why he considered that the standards relied on by Mrs McConville did not reflect the situation in June 1999 (opinion para.151). This is a finding he was reasonably entitled to make.

[115] There is no basis upon which to infer that the Lord Ordinary’s opinion demonstrates an inadequate grasp of the relevant medical science to make the findings in fact. He had heard extensive and detailed evidence and had been addressed on it at length. The Lord Ordinary sought to avoid unnecessary repetition by incorporating the parties’ submissions in his opinion (opinion paras 43–45). He is an experienced judge and the appellate court

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should be slow to infer a lack of understanding or learning. The principal point of difference between the experts came down to their interpretation of the CTG and the range of appropriate responses thereto in connection with the management of the pursuer’s labour. The Lord Ordinary correctly recognised that this involved the exercise of clinical judgment (opinion para.171). The pursuers’ midwifery and obstetric experts accepted that, at the relevant time, there could be a difference of professional interpretation in respect of a given CTG trace. The Lord Ordinary identified that the approach taken by the pursuers’ experts was too strict for 1999, a conclusion that he was reasonably entitled to reach (opinion paras 151–152).

[116] Underlying each of the pursuers’ cases of fault, and implicit in them, is the contention that in June 1999 the CTG would, should and must have been interpreted and acted upon in the manner the pursuers’ experts claim. In order for the pursuers to succeed it was crucial to place the acts and omissions complained of in the correct context of contemporary midwifery and obstetric practice. No serious attempt was made by the pursuers to do so. The Lord Ordinary did not base his decision on the nomenclature applied to the trace, rather he considered whether, having regard to the proper context, the views expressed by the defender’s experts were irrational, illogical or unreasonable (opinion paras 151, 152, 167–171). This approach was correct. It is clear from the Lord Ordinary’s opinion that he understood that in assessing whether the actions taken by the defender’s staff were negligent, consequent on their interpretation of the CTG, it was the appearance of the trace that mattered and not the terminology used to describe it (opinion para.165). This is evident in his finding that if Dr Hulse had seen the trace, regardless of the terms used to describe it, he would not have instructed that there be a “crash” Caesarean section: this is supported by the evidence. Thus there was no evidence that delivery would have been expedited at that stage. Further, he concluded that it would have been in accordance with a reasonable body of obstetric opinion not to proceed to a “crash” Caesarean section, as has had been spoken to by Professor Walker.

Discussion

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[117] The Lord Ordinary’s approach to the recording and assessment of the midwifery and obstetrical expert evidence is consistent with his approach to the recording and assessment of the factual evidence; he quite deliberately concentrates on giving his decision while relying on parties’ submissions to identify the issues, the evidence led with a view to resolving the issues and the parties’ respective contentions in relation to that evidence. The pursuers argue, for reasons that are very similar to those upon which they rely in their criticisms of the Lord Ordinary’s approach to his findings of primary fact, that that is simply inadequate. We agree. We repeat that the function of an opinion in Court of Session procedure is to identify, at an appropriate level of detail: what are the issues to be resolved, what is the material that was put before the court with a view to the resolution of the issues, how the issues were resolved and why the issues were resolved in the way they were. An opinion which does not do this is not, properly speaking, a judicial decision.

[118] Insofar as the Lord Ordinary discusses the expert midwifery and obstetrical evidence he does so in that part of his opinion where he addresses the issue of negligence (paras 118–175). What the expert evidence was required to focus upon was the interpretation to be given to the CTG trace, and the contention of the pursuers that over the last four hours of the first pursuer’s labour it was abnormal and that there was a consequential need to expedite

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 157 delivery in the case of an IDDM mother. That the Lord Ordinary was fully aware that this is what the case was about appears to us to be clearly demonstrated in paras 118–139 of his opinion. He then announces his conclusion that he was not satisfied that there was negligence at para.140 (a conclusion that is simply reiterated at paras 141, 142, 143, 174, 175 and 176 and slightly elaborated upon at paras 162 (in relation to the first case of negligence), 164 (in relation to the second case), 166 (in relation to the third case) and 163 (in relation to the fourth case)). In what is very briefly stated reasoning the Lord Ordinary touches on, but no more than touches on, the evidence he had heard. He observes that the interpretation of a CTG trace is a matter of clinical judgement (paras 152 and 171). He rejects the suggestion that Midwife MacPherson lacked core skills (para.155). He assesses Dr Sanders and Professor Walker as impressive and measured witnesses (paras 155 and 156). He accepts that Professor Draycott’s view was that the trace was pathological from 22.00 on 1 June (para.148) but contrasts that with the views of Dr Sanders and Professor Walker, and also Dr Sharkey and Dr Hulse (para.154). He thus concludes that the management of the first pursuer’s labour and delivery by Midwife MacPherson and Dr Sharkey was supported by appropriately qualified experts who could not be rejected as being unreasonable, irrational or illogical (paras 156 and 157, 171). The difference in view as between Professor Draycott (and presumably Mrs McConville and Dr MacPherson), on the one hand, and Dr Sanders, Professor Walker, Dr Sharkey and Dr Hulse, on the other, was to be explained by different assessments of the stage of development of medical knowledge in 1999 (paras 148, 150, 151, 169 and 170).

[119] Looking at the paragraphs to which we have referred, we would see the Lord Ordinary to have supplied, in broad outline, sufficient reasoning for his conclusion on the effect of the expert evidence. As is very familiar, it is not for the court to prefer one respectable body of professional opinion over another: Maynard v West Midlands Regional Health Authority at p.639, it only being where the court is satisfied that a body of expert opinion cannot be logically supported at all that it will not be available as a benchmark by reference to which allegedly negligent conduct may be assessed: Bolitho v City and Hackney Health Authority at p.243D and Honisz v Lothian Health Board at para.39. However, it is not the Lord Ordinary’s line of reasoning that the pursuers complain about or even, necessarily, his conclusion that the defender’s responsible staff members were not negligent; it is accepted that there was evidence which could be construed as exculpating them. The pursuers’ complaint is that the Lord Ordinary has failed to demonstrate in his opinion that he has engaged with, considered and understood the substantial body of expert evidence led by the parties. He has not explained how he resolved the various subordinate issues underlying his reasoning. He has not even explained what these issues were. There is no proper evaluation of what the expert witnesses had to say. The complaint relates to the evidence led on behalf of the defender as well as the evidence led on behalf of pursuers. Again, we did not understand that the pursuers argued that the Lord Ordinary should necessarily have found the defender’s experts’ approach to be Bolitho irrational, but insofar as the defender’s witnesses made no criticism of the lack of urgency in proceeding to delivery after the decision to go to Caesarean section had been made, the pursuers had argued that that evidence had failed the Bolitho test.

Where the pursuers’ case was that even had delivery been a few minutes earlier Rowan would not have sustained injury, it was incumbent on the Lord Ordinary to subject the defender’s evidence to critical scrutiny and demonstrate that he had done so. There was no indication of that whatsoever.

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[120] We would accept the pursuers’ complaints to be well made. The Lord Ordinary has nothing in his opinion about the evidence as to the appearance of the CTG trace, or the evidence given by the experts as to how it should be interpreted, or the parties’ respective contentions as to what should be made of that evidence. He contents himself with a reference at para.29 of his opinion to the parties’ written submissions and the observation that because parties are familiar with their written submissions he will take them as read.

We have some sympathy for the Lord Ordinary. He had been provided with written submissions which were very detailed indeed and then been addressed on them at length. This was the parties’ distillation of some six weeks of evidence. It would be understandable if the Lord Ordinary felt that setting out a summary and then analysis of that evidence would not only be very laborious but also repetitious and therefore redundant. Nevertheless, for much the same reasons as have informed our conclusion that the Lord Ordinary has not provided adequate reasons for his findings of primary fact, we can only regard this approach as an abrogation of the Lord Ordinary’s responsibility to provide a coherent judicial decision. It would hardly be an exaggeration to say that as far as the opinion is concerned many days of conflicting evidence about the appearance of the CTG trace are compressed into the observation at para.148 of the opinion that it was Professor Draycott’s view that from 22.00 on 1 June the trace was pathological and it had been negligent not to recognise that, whereas, as is noted at para.154, neither Dr Sharkey, Dr Hulse, Dr Sanders nor Professor Walker considered Rowan’s trace to be pathological.

[121] The result of the Lord Ordinary’s approach to the writing of his opinion is that the interested but previously uninformed reader is left in ignorance as to what the expert evidence was. That in turn means that such a reader has not been apprised of the nature of the controversy between the parties beyond what is revealed by the Lord Ordinary’s quotation from the pursuers’ averments at para.129. And if the nature of the controversy is not made clear, it follows that the reader cannot fully understand precisely what has been decided. That is to view the opinion as addressed to the wider public.

Unlike the wider public the parties are aware of what the evidence was and what, in the light of the evidence, came to be the precise controversy. However, when it comes to the expert evidence we would see this opinion as failing the parties (and particularly the pursuers as losing parties) as well as the wider public. The opinion provides them with no assurance that they have been heard in the sense of what they put forward having been listened to, understood and weighed in the balance.

[122] While we would not wish to push this consideration too far, we saw force in the submission by senior counsel for the pursuers that among the various audiences which would be entitled to feel disappointed by the Lord Ordinary’s opinion was that composed of the witnesses who gave expert midwifery and obstetrical evidence, particularly those who were led on behalf of the pursuers, Professor Draycott, Mrs McConville and Dr MacPherson.

They had been critical of the management of the first pursuer’s labour. There is no suggestion that they were other than well-qualified and responsible clinicians who had been conscious of their duties to the court. That did not mean that the Lord Ordinary had to accept their evidence as determinative of the issues before him. The Lord Ordinary was entitled to conclude, as he indicates that he did conclude, that their evidence was reflective of practice as it came to be developed after 1999 rather than at the relevant time. Moreover, that evidence was contradicted by another and equally responsible body of

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 159 expert opinion. However, where a case of clinical negligence is supported by responsible professional evidence we would see it as incumbent upon a judge sufficiently to summarise that evidence and in the event of it being rejected as determinative explain why that is so. It is not simply a matter of courtesy, although there is an element of that. Just as parties are entitled to the assurance that their case has been heard and to an explanation in the event of it being rejected, so witnesses are entitled to the assurance that their evidence has been heard, understood and evaluated and, where rejected, rejected for reasons that are explained. In this case the Lord Ordinary does not provide that assurance.

As counsel for the pursuers pointed out, Professor Draycott is described as being exceptionally diligent but his evidence is then put aside on the basis that he is “perhaps something of a perfectionist” (opinion para.148). As with Professor Draycott, Mrs McConville’s evidence is associated with post–1999 practice but otherwise assessed only by a brief (and frankly incomprehensible) reference to her reliance on Ch.4 of the first edition of Gibb and Alkuraman (para.151). Dr MacPherson’s contribution is relegated to the similarly obscure observation that she had agreed that “the more complicated Gibb approach may not have been the only view of these things” (para.151).

[123] Counsel for both parties referred to the speech of Lord BrowneWilkinson in Bolitho for their respective purposes. The critical statement of principle (found at p.243C–E) is as follows: “[I]t will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. . . .

It is only where a judge cannot be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide a benchmark by reference to which the defendant’s conduct falls to be assessed.”

As we have already indicated, we accept that in the event of the Lord Ordinary finding the defender’s witnesses to represent a responsible body of professional opinion, and these witnesses supporting the management of the first pursuer’s labour, that was sufficient to determine the issue of negligence against the pursuers. It follows that it was properly open to the Lord Ordinary to come to his decision without a full analysis of the evidence of the pursuers’ experts.

Nevertheless, we do not see that as relieving the Lord Ordinary of the obligation to set out that evidence in sufficient detail that the reader can understand what were the criticisms he considered to have been rejected in the evidence led on behalf of the defender.

[124] Notwithstanding that criticism of the Lord Ordinary’s opinion, we should record that his conclusion on this matter appears to us to be inevitable in view of the terms of Professor Walker’s opinion. As we have already noted, the Lord Ordinary clearly regarded Professor Walker as an impressive witness.

We have considered the terms of Professor Walker’s reports and the whole of his evidence, and we cannot discover any basis on which we could disagree with that assessment. The conclusions in the reports were clear. In his second report, Professor Walker states that at no time could the trace be called pathological, nor did it indicate an immediate “crash” or category 1 delivery. In the same report it was also stated that the decision as to the timing of delivery was correct, and that in 1999 in the UK it was common for a delay of over 60 minutes from decision to delivery to occur in a Caesarean section of this type. He further stated that there was no evidence that an earlier delivery would have resulted in a baby in a better condition. As to Professor Walker’s evidence, the general tone of the evidence, so far as that can be discovered from a transcript, appears to be

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measured and reasonable throughout. We cannot discover any point at which it could be said that the witness appeared unreasonable or unconvincing.

Throughout his evidence Professor Walker maintained that the treatment of the pursuer was in accordance with proper professional standards. This applies to his discussion of the actual delivery (pp.2685–2687, the trace (pp.2698–2722) and the nature of the decelerations (pp.2724 and following). We can discover no inconsistency or hesitation in those answers. The same applies to Professor Walker’s treatment of Professor Draycott’s report (pp.2773 onwards). Once again Professor Walker took the consistent position that the reaction to the trace was in accordance with proper clinical practice. The pursuers’ case on record was considered (pp.2787 onwards), and was rejected. Nothing in Professor Walker’s cross-examination appears to us to detract seriously from his evidence.

Counsel for the pursuers referred us to a particular passage (at pp.3461–3472), but we could find nothing in that passage to cause us to doubt the view that at least one body of medical opinion would have considered the course followed by the defender to be in accordance with proper professional practice in 1999.

On that basis, we do not think that the pursuers could realistically avoid the Bolitho principle. We accordingly consider that the defender would almost inevitably have succeeded on a proper consideration of the evidence. We should add that we have also considered Dr Sanders’ evidence. There is one significant difference between her evidence and that of Professor Walker: Dr Sanders considered the final section of the trace to be “concerning”, which Professor Walker did not; in this respect Dr Sanders agreed with the pursuers’ experts.

Dr Sanders did not, however, criticise the time taken to proceed to a Caesarean section, which we think takes away most of the force that this point might otherwise have had for the pursuers.

D Making findings on causation which were superficial and confusing (ground of appeal 1(f)) The pursuers’ submissions

E

F

G

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[125] In the pursuers’ submission, the approach of the Lord Ordinary to the explanation of the factual issues in relation to causation, by simply laying out the contentions of the pursuers (opinion paras 178–189), then those of the defender (paras 190–204) and then, without much more other than a series of concluding statements, deciding for the defender, “essentially for the reasons outlined by the (defender)” in their concluding submission (para.216), was inadequate. The averments of the parties called for a response from the Lord Ordinary that demonstrated his understanding of the relevant science and a rational basis for his decision either to draw or not to draw the inferences which parties invited him to draw. In this the Lord Ordinary failed.

[126] The pursuers’ case was that Rowan drew meconium into her airway during a period of agonal gasping. The defender explained obstruction of the airway by the presence of a bronchogenic cyst. The relevant experts, Professor Stenson and Dr Coutts, explained why one or the other mechanism might be inferred but there was direct evidence supporting the pursuers’ theory.

Dr Alberts, a paediatric senior house officer who was the first paediatrician to come to theatre but who later could not be traced and therefore did not give evidence made a note in relation to gasping as did Dr Alit. Dr Sharkey gave evidence that she did not see Rowan gasping but that might be explained by her attention being concentrated on what was a difficult Caesarean delivery.

Midwife MacPherson had no recollection of meconium but Dr Sharkey described Rowan as smeared in meconium.

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 161 [127] The pursuers had listed the particular matters which they submitted required to be addressed in relation to their case as to how Rowan came to be acutely asphyxiated but which the Lord Ordinary failed to address in his opinion. The Lord Ordinary does not analyse the evidence with a view to explaining why he was not satisfied that Rowan had entered an agonal gasping phase shortly before birth, whether by reference to the pursuers’ points or otherwise. He does not make any findings about timings but nevertheless says, without further explanation, that the “inference of chronic partial hypoxia prior to birth is not supported by the duration of time that (Rowan) survived without any effective airway”. He fails to deal with the pursuers’ submissions about how chronic partial hypoxia would account for the reading on the continuous CTG before it was stopped; how it would account for Rowan’s poor condition at birth; and how it would account for agonal gasping. He does not address the particular argument that Rowan would be expected to live longer than the monkeys in the asphyxiation experiments which were referred to in evidence, because urgent steps were being taken to resuscitate her. The Lord Ordinary noted that Professor Stenson, who supported the pursuers’ theory regarding causation, including agonal gasping, was an impressive witness, and although not unequivocal, “felt that meconium was the most likely explanation.

Meconium need not be of uniform consistency or shape” (para.211). It was critical to Professor Stenson’s theory on causation that Rowan had entered a phase of agonal gasping. At para.216 of his opinion the Lord Ordinary records that he was not satisfied that Rowan had entered a gasping or agonal gasping phase shortly before birth but he does not explain why.

[128] According to the pursuers, not only was the Lord Ordinary’s reasoning in relation to causation inadequate, but it was confused. The Lord Ordinary appears to accept that the obstruction in Rowan’s airway was more likely to have been caused by meconium than by the existence of a bronchogenic cyst as suggested by the defender. He fails, however, to explain when and how such meconium entered Rowan’s airway, and to what extent that would have been consistent with Rowan’s condition during labour, it being borne in mind that it is commonplace for babies to have meconium in their mouths and upper airways at about the time of birth without suffering the sort of obstruction experienced by Rowan. The evidence at proof presented two possible mechanisms for Rowan’s airway being obstructed. While appearing to have rejected the presence of a bronchogenic cyst and despite finding the meconium mechanism the more likely of the parties’ two alternatives he chose a “third way”, in other words an unknown mechanism, as hinted at in paras 69 and 71 of the defender’s written submission. Junior counsel for the pursuers explained that while he did not go the distance of maintaining that a finding that meconium had been inhaled must necessary[il]y involve acceptance of the agonal gasping explanation of this, the hypothesis of meconium inhalation was connected to the hypothesis of agonal gasping and given the circumstantial support for the pursuers’ case there was an onus on the Lord Ordinary to provide cogent reasons to explain why he had decided as he did. The reference by the Lord Ordinary to the defender’s written submission did not provide that; para.69 makes 16 points in arguing for rejection of the pursuer’s theory.

His opinion begs the question: did the Lord Ordinary accept all of them or only some of them and, if only some, which?

A

B

C

D

E

F

The defender’s submissions

[129] The Lord Ordinary’s findings in relation to causation were neither superficial nor confused. Having rejected the bronchogenic cyst theory

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proffered by the defender, the Lord Ordinary was not bound to accept the alternative (and implausible) theory proffered by the pursuers: McGlinchey v General Motors UK Ltd. The Lord Ordinary correctly observed that both competing theories were rare and both had contra-indications in the evidence (para.207).

[130] The causal theory posited by the pursuer depended on proof of three distinct elements: (i) that the airway was blocked by a plug of meconium sufficiently thick and viscous so as to resist dislodgement during resuscitation procedures; (ii) that the plug was aspirated at or shortly before delivery as a result of agonal gasping (the foetus does not breath in utero, and in any event normal respiration is insufficient to achieve the necessary degree of blockage); and (iii) that agonal gasping occurred prior to birth as a result of chronic partial hypoxia in utero. The Lord Ordinary observes that it was more likely, as between meconium and bronchogenic cyst, that Rowan’s airway was obstructed by meconium, probably inspissated hardened or thickened meconium rather than fresh meconium (opinion para.211). The Lord Ordinary correctly observes that the presence of meconium is not sufficient by itself to establish the necessary causal link between alleged negligence and injury (para.212). The necessary causal link as averred by the pursuers is agonal gasping, occurring at or shortly before birth, as a result of chronic partial hypoxia (para.218). The Lord Ordinary was not satisfied on the basis of the whole evidence that this had occurred (para.218). This conclusion is one that he was reasonably entitled to reach. The evidence of the factual witnesses was inconsistent with Rowan being in the stage of agonal gasping. There was no evidence from a factual witness that supported her having reached that stage.

[131] The Lord Ordinary does not go so far as to find, on a balance of probabilities, that the blockage was meconium (and did not need to, standing his findings in relation to agonal gasping). Even if he had, it was not then incumbent on the Lord Ordinary to accept the inference postulated by the pursuers that the mechanism of aspiration was agonal gasping. The Lord Ordinary did not accept the inference.

[132] The pursuers’ case, to the extent it is based on agonal gasping and chronic partial hypoxia, is purely inferential. There was no evidence of brain damage caused by chronic partial hypoxia. Professor Stenson’s reasoning was circular: he postulated a thick plug of meconium as the explanation for the failure of resuscitation and then further postulated agonal gasping in order to explain how this could have occurred in utero. The inference that agonal gasping occurred in utero was contrary to the evidence. It is certainly neither obvious nor necessary having regard to the whole evidence, all of which the Lord Ordinary explains he took into account (para.218). There is no basis upon which to infer from his failure to discuss the details of the evidence in his judgment that the Lord Ordinary failed to take them into account: Henderson v Foxworth Investments Ltd at para.57.

[133] The Lord Ordinary found that the inference of chronic partial hypoxia at birth was not supported by the duration of time that Rowan survived without an effective airway (para.217). The Lord Ordinary was entitled to reach this conclusion, notwithstanding the evidence of Professor Stenson. Professor Stenson’s contrary view was based on an underestimate of Rowan’s actual survival time as spoken to by Dr Farmer. His view was not vouched with reference to any literature and amounted to no more than assertion. The weight which the Lord Ordinary accorded to Professor Stenson’s evidence on this point was a matter for him having had the benefit

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 163 of hearing the evidence first-hand. Professor Stenson’s evidence about the likely effect of resuscitative measures on survival time was scant and imprecise.

A

Discussion

[134] The Lord Ordinary discusses questions of causation at paras 176–225 of his opinion. At para.178 he quotes the pursuers’ critical averments on causation: “During labour (Rowan) suffered chronic partial asphyxia. At or shortly before delivery she was no longer able to compensate for the prolonged chronic partial asphyxia. As a result she began to gasp while in utero. By gasping she inhaled a plug of fresh meconium deep into her airway. The meconium plug caused acute asphyxia which in turn caused the brain damage which has led to the disabilities from which she suffered and continues to suffer.”

There follows the pursuers’ contentions as to how the evidence supported these averments at paras 179–189, and the defender’s contrary contentions at paras 190–204. The Lord Ordinary then sets out his conclusions on these contentions in the form of findings. Again, the style is terse but we do not see that the reasoning is confused. The pursuers’ case depended on inferences being drawn from primary facts. At para.209 in his opinion the Lord Ordinary accepts that it is likely that Rowan suffered cerebral palsy due to a failure of resuscitation following birth in consequence of an obstruction in her trachea.

That was a necessary part of the pursuers’ case but they also had to establish that it was a plug of meconium that had obstructed Rowan’s trachea and that the plug had been inhaled by reason of agonal gasping. As the Lord Ordinary identifies at para.207 the defender had proposed a competing candidate for the mechanism which had obstructed the trachea and that was the presence of a bronchogenic cyst. Compelling expert evidence had been put forward in support of each of the candidate conditions but both were rare and both had contra-indications in the evidence (para.207). While unable to exclude the possibility of a cyst and recognising that obstruction by a meconium plug is not recorded in the literature (para.213), the Lord Ordinary expresses the view at para.211 that meconium was the more likely of the two candidates. As a matter of logic, identifying the more likely of two unlikely but possible causes for a given phenomenon does not necessarily lead to the conclusion that more likely of the two is the likely cause of the phenomenon. That is so even where the two possibilities are the only possibilities which have occurred to the observers of the phenomenon. It is different where it can be concluded that the two possibilities are the only possibilities; then, in what can be described as a closed system, the elimination of one must lead inevitably to acceptance of the other. In the context of legal fact finding these considerations are most often associated with the decision of the House of Lords in The Popi M and Lord Brandon’s acceptance there of what had been said by Scrutton LJ in La Compania Martiartu v Royal Exchange Assurance Corporation at p.657. They have been recently considered by this court in McGlinchey v General Motors UK Ltd. In the present case the Lord Ordinary did not discard the possibility of obstruction by reason of the presence of a meconium plug but neither, despite regarding it as the less likely of the two suggested candidates, did he exclude the possibility of obstruction by reason of a bronchogenic cyst (para.210). Critically, his view that obstruction by reason of the presence of a meconium plug was more likely than obstruction by reason of the presence of a cyst did not lead him to make a determination of what had caused the

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obstruction (paras 219, 222 and 223). He was entitled to adopt that position.

This was not a closed system case, as the Lord Ordinary explains (para.220).

There were other possibilities, albeit that no compelling evidence had been led regarding them. What Scrutton LJ said in La Compania Martiartu is apposite: “[I]t is always open to a court, even after . . . prolonged inquiry with a mass of expert evidence . . . to conclude . . . that the proximate cause . . . even on a balance of probabilities, remains in doubt, with the consequence that the [pursuer has] failed to discharge the burden of proof. . . .”

B

[135] The Lord Ordinary did not leave off his consideration of causation with his conclusion that a meconium plug had not been shown to have been the likely source of the obstruction. He appreciated that a necessary component of the pursuers’ case was that hypoxia had brought Rowan to a state of agonal gasping in an attempt to ventilate herself and it was such a gasp which had drawn in a meconium plug (paras 136 and 215). Without proof of this very specific mechanism the pursuers must fail. At para.216 the Lord Ordinary records that he did not accept the pursuers’ submissions on that and accordingly had not been satisfied that Rowan had entered a gasping or agonal gasping stage shortly before birth. Thus, even if Rowan’s airway had been blocked by meconium (which the Lord Ordinary had not found to have been proved), the pursuers had failed to prove that agonal gasping had occurred at or shortly before birth and therefore that meconium had been aspirated by reason of agonal gasping (para.218). In addition, the Lord Ordinary did not find established that there had been chronic partial hypoxia prior to birth, that not being supported by the duration of the time that Rowan survived without an effective airway (paras 217 and 218). Antenatal chronic partial hypoxia was of course part of the mechanism which the pursuers had to prove.

[136] There is, in our opinion, nothing wrong with the process of reasoning outlined above that led the Lord Ordinary to conclude that the pursuers had failed to prove that what they alleged to have been negligence for which the defender was liable caused Rowan’s injury. We therefore reject the criticism that the Lord Ordinary’s reasoning was confused.

[137] There remains the criticism that the Lord Ordinary failed to narrate and then analyse important features of the evidence and the pursuers’ argument which supported their critical averments on causation. The pursuers draw particular attention to their contention that chronic partial hypoxia would explain separate matters of fact which they submit were demonstrated by the evidence: an abnormal CTG trace, Rowan’s poor condition at birth, and agonal gasping; and to their contention that Rowan’s survival beyond the period predicted by animal experimentation could be explained by the urgent steps taken to resuscitate her.

[138] We do not regard the Lord Ordinary’s findings on causation to be “superficial” which is the word used together with “confusing” in the first sentence of ground of appeal 1(f). Nor do we see it as necessarily an error for a first-instance judge to omit to mention every item of evidence founded on and every argument advanced by a party. However, and this is to return to the central theme of this opinion, by choosing to express himself in what is a very terse and compressed style, the Lord Ordinary has laid himself open to the charge of failing properly to grapple with what he acknowledges to have been the extremely difficult issue of whether the pursuers had proved the necessary elements of their case insofar as relating to causation of injury (para.207). Our impression, based on his summaries of the parties’ respective positions and his reasoning referred to above, is that he did grapple with the issue. Nevertheless,

C

D

E

F

G

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 165 for reasons that we have already discussed, it would have been better had the Lord Ordinary provided a fuller explanation of the process of analysis which he had gone through. Parties should not be required to take on trust that their case has been rigorously evaluated; they are entitled to see that demonstrated in the court’s opinion. Whether the pursuers had proved their proposed explanation of how Rowan’s airway came to be obstructed was a critical issue in the case. It had been fully discussed in both parties’ written submissions.

Notwithstanding the repetition that that would have involved, we would see that the issue called for a fuller treatment than the Lord Ordinary provides in his opinion; if not in his summaries of the parties’ positions then in his findings.

We appreciate that by saying that the Lord Ordinary should have provided a “fuller” treatment we beg the question “how much fuller?” Length, per se, is not virtue and brevity is not a vice. Speaking generally, the opposite is so.

Writing an effective opinion involves judicious summarising and indeed omission of material that has been put before the court. With a view to illustrating what we have in mind by saying that a fuller treatment was required we would draw attention to paragraphs 207 and 208 of the opinion. These are in the following terms: “[207] The two competing scenarios (relating to meconium and bronchogenic cyst) make it extremely difficult to reach a clear conclusion in relation to what exactly caused the obstruction or when. There was compelling expert evidence in support of both those possible causes. Both scenarios were rare and both had contra-indications in the evidence.

[208] On a balance of probabilities, I am unable to hold that the obstruction of [Rowan’s] airways was caused, or materially contributed to, by the negligence alleged by the pursuer to have occurred during the latter stages of the management of labour.”

Within these two paragraphs the Lord Ordinary sets out a sufficient basis for rejecting the pursuers’ claim. We have no reason to believe that everything that appears in this para.207 is other than an accurate account of the evidence that the Lord Ordinary had heard but it calls out for elaboration and explanation.

What was the compelling evidence? What were the contra-indications? The opinion does not provide an answer.

[139] The Lord Ordinary turns to agonal gasping and indicates that he had not accepted the pursuers’ submission that it should be concluded that Rowan had entered into that phase shortly before birth. Again, by concluding that he could not make such a finding the Lord Ordinary provides a sufficient reason to reject the pursuers’ claim. However, he does not set out in his opinion why he has arrived at the conclusion he has. Rather, he refers to paras 7.40–7.45 of the defender’s written submission, stating that it is “essentially” for the reasons “outlined” in that passage that he has decided as he has. We have considered the passage in the written submission. It contains what look to us to be cogent reasons for finding agonal gasping not to have been established. An acceptance of these reasons means that the pursuers’ claim must fail. It was open to the Lord Ordinary to accept these reasons; having also considered what had been put forward by the pursuers. However, by his use of “essentially” and “outlined” the Lord Ordinary leaves a question over whether or not he has accepted the reasons in full and by his reference to an unpublished document he leaves the interested but previously uninformed reader none the wiser as to what these reasons may be. That is not satisfactory.

[140] Despite the foregoing criticisms of the Lord Ordinary’s reasoning, we are of opinion that he has said enough to justify the view that he could not decide what the cause of the injury was. That appears in particular from paras

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207 and 208 of his opinion and in his reference to paras 7.42–7.45 of the defender’s written submission. In summary, he followed the ratio of cases such as The Popi M; La Compania Martiartu v Royal Exchange Assurance Corporation; and McGlinchey v General Motors UK Ltd, as explained at para.134 above.

That conclusion seems reasonably clear from the terms of the Lord Ordinary’s opinion. If he was justified in taking such a view, the pursuers’ case must fail on the ground that causation has not been proved. We have considered the evidence of Professor Stenson, who was the pursuers’ principal witness on causation, and we can find nothing in his evidence that would persuade us to reach any different conclusion on this matter. Competing causal hypotheses were put forward by the parties, in a situation where the facts were not entirely clear and neither of the hypotheses was free from difficulty. In summary, therefore, we must conclude that the Lord Ordinary was justified in concluding that a causal mechanism had not been established.

Failure to give adequate reasons for rejecting the pursuers’ cases of negligence (grounds of appeal 2, 4, 5 and 6)

C

D

E

F

G

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The pursuers’ submissions

[141] Grounds of appeal 2, 4, and 6 each put forward the proposition, albeit in slightly different terms, that the Lord Ordinary failed to explain why he had rejected the pursuers’ four cases of fault. Ground 5 complains of a failure to explain to which aspects of these cases the Lord Ordinary has applied the Hunter v Hanley standard appropriate to assessment of an exercise of clinical judgement as opposed to the standard of reasonable care appropriate to activities which do not involve an exercise of such judgement. In their written note of argument the pursuers summarise the four cases (see para.46 in this opinion) and then highlight particular points in relation to each which the Lord Ordinary should have discussed and made a decision about, as follows: 1. Case (1) is a Hunter v Hanley case against Midwife MacPherson. The pursuers say that she failed to pick anything up on the trace because she was not a midwife of ordinary skill exercising ordinary care. She did not do what she ought to have done because she lacked the necessary skills. She did not exercise appropriate clinical judgement and make a decision. This is a case where there should be an assumption in favour of the pursuers that a competent midwife (a midwife of ordinary skill) would have picked up the problems with the trace from 2300 on 1 June.

2. In relation to case (2) the Lord Ordinary ought to have addressed the evidence of Dr Hulse and the submission that the first pursuer was entitled to consultant level care even although Dr Hulse was not present. The Lord Ordinary was referred to the evidence of Dr Sharkey, and the evidence that she had failed to see what Dr Hulse had seen when presented with the trace in court, namely a suspicious situation.

3. In relation to case (3) negligence had been established in that there had been a collective failure to observe a monitoring system that was mandatory under the hospital’s own protocol. If the defender’s position is that there is credible and reliable evidence representative of a responsible body of professional opinion that supports the practice of completely failing to look at the CTG trace then the pursuers submit that the Bolitho exception applies.

Those who were present, namely Dr Sharkey, Sister Richmond and Midwife MacPherson each thought that the trace should have been looked at, and Dr Sharkey and Sister Richmond thought it should have been reported and acted on. Dr Sanders and Dr Hulse thought it should have been acted on.

Professor Draycott thought it should have been acted on. Professor Walker agreed that Sister Richmond’s reaction was not inappropriate.

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 167 4. In relation to case (4) it was submitted that acting in contravention of the defender’s own system for mandatory continuous CTG for IDDM mothers such as the first pursuer was, at least in the circumstances of this case, negligent. It may have been routinely ignored. It may not have been the usual practice. However, the evidence was that there was no good reason not to follow the protocol. The CTG could readily have been taken to theatre. If the Lord Ordinary was satisfied that, in the circumstances of the transfer of the first pursuer to theatre, a good reason existed for a departure from the defender’s own system, he failed expressly or by necessary inference to find what it was.

A

B

[142] The pursuers’ counsel developed this line of criticism in submission.

The Lord Ordinary had failed to set out what he understood to be the competing contentions of parties. He had not, as he should have done, taken each of the four cases in turn and dealt with it within in the framework provided by Hunter v Hanley. In respect of cases (3) and (4) he required to address the argument that the Bolitho exception applied. Again the Lord Ordinary had failed to do that.

C

The defender’s submissions

[143] It was the defender’s position that the Lord Ordinary had given sufficient reasons for rejecting the four cases advanced by the pursuers. The Lord Ordinary had applied the correct approach to expert evidence as set out in Bolitho and Honisz. He had correctly found that interpretation of a CTG trace and its application to the management of labour is a matter involving skill and the exercise of clinical judgement (para.152). The Lord Ordinary had been entitled to find for the pursuers only if satisfied that exculpatory evidence led by the defender was irrational, illogical or unreasonable. In a clinical negligence action the burden rests on the pursuer to discredit the defender’s expert evidence in the present case. No such attempt was made in cross-examination of the defender’s experts or in submissions in the present case. Rather, the contrary submission was advanced and relied upon that this was not a deviation from practice case. The Lord Ordinary did not accept that submission. He then concluded that the evidence of the defender’s experts could not be rejected as being unreasonable, irrational or illogical (opinion paras 152 and 161–175). The Lord Ordinary did not err in law. He correctly analysed whether he required to reject the defender’s evidence by applying the wellrecognised criteria in Bolitho and Honisz and concluded that he did not. The expert evidence and the rationality/logic/reasonableness of the approach propounded by the defender’s experts was set out in detail in the defender’s written submission which was incorporated within the Lord Ordinary’s opinion at para.37.

[144] Contrary to the pursuers’ submission, the Lord Ordinary did not make any finding that the last section of the CTG was not observed (nor did he make any finding that it was observed). He was entitled, on the basis of the evidence to conclude there was insufficient evidence in support of such a finding.

[145] The Lord Ordinary gave sufficient reasons why, having regard to the last section of CTG, the pursuer had failed to establish that delivery would have been expedited (para.166). It was implicit in the Lord Ordinary’s finding in para.166 that he, correctly, focused on whether there was evidence directly bearing on whether those present in a decision-making capacity would have taken any decision to expedite delivery. He was correct to observe that there was no evidence about that. The Lord Ordinary’s finding was supported by

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the evidence: there was rational and reasoned expert midwifery evidence led by the defender which was supportive of any alleged failure by the midwives to report the last section of CTG to medical staff and there was rational and reasoned expert evidence led by the defender that delivery did not require to be expedited.

[146] With reference to ground of appeal 5, it was clear from the Lord Ordinary’s opinion that he had applied the Hunter v Hanley standards to the four cases of fault advanced by the pursuers. He was correct to do so. The approach advocated by the pursuers was incorrect and unvouched by authority.

It would involve a two-tier approach: requiring the court first to identify whether the actions desiderated on the part of clinical staff were “commonsense steps” (however that is to be defined) or not. A court has no way of assessing whether actions in a professional context are “common-sense steps” or not without reference to the well-recognised test for professional negligence.

For example, the pursuers contended that “midwives telling the doctor about concerns” is a “common-sense step”. That is an over-simplification. Expert evidence will inevitably be required to evaluate whether the concern was such that it ought, in the exercise of reasonable skill and care, to have given rise to any action and, if so, whether the concern was sufficiently serious that it mandated a report to medical staff or whether it was appropriate for the midwife to continue monitoring. These are matters of professional judgement and practice, informed by medical or midwifery knowledge, experience and skills. Similar issues arise in relation to a midwife’s duty to write “adequate” notes. Without expert evidence of practice at the relevant time the court is ill placed to determine whether the notes were “adequate”. The extent to which a midwife should watch and act upon a CTG is similarly a matter for expert evidence, to be assessed with reference to the principles in Hunter v Hanley, Bolitho and Honisz, as the Lord Ordinary correctly accepted.

Discussion

E

F

[147] The pursuers’ complaint that the Lord Ordinary has failed adequately to explain his rejection of the four cases of fault substantially overlaps with their complaints that he has failed adequately to explain his findings of fact and that he has failed adequately to discuss the expert evidence. This was perhaps inevitable in an appeal which is about the way the Lord Ordinary has chosen to express himself in relation to what are interdependent components in his decision-making. Given that overlap and given what we have already said about we consider to have been an unduly tersely expressed opinion, there is no purpose in elaborating that by reference to the Lord Ordinary’s discussion of the cases of fault. The defender has set out the basis upon which it would seem that the Lord Ordinary rejected the allegations of negligence.

The pursuers do not say that he was not entitled to do so. However, for reasons which have already been canvassed, where a case is rejected a clear explanation should be given. That did not happen here.

Grounds of appeal: summary of outcome

G

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[148] We accept that the time taken for the issue of the Lord Ordinary’s opinion was excessive. The pursuers seek no specific remedy in respect of that but we consider that they, and the defender, should have an apology from the court for what was its failure to ensure that an opinion was issued within a reasonable time.

[149] As appears from our foregoing discussion of the other points raised in the grounds of appeal, we further accept that the Lord Ordinary’s opinion

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 169 does not provide adequate reasons for his decision. The Lord Ordinary, quite deliberately as it would appear, adopted what we have described as a terse style of expression. Generally speaking, a succinct judgment is to be commended but in this case that was achieved at the expense of sufficient explanation of the various conclusions that the Lord Ordinary reached. That is clearly so in relation to matters of primary fact and opinion bearing on negligence. It is more debateable in relation to causation but there also, as we have already indicated, more was required by way of exposition of the competing arguments and their respective evidential bases in order to explain why the Lord Ordinary arrived at a non probandum. As Henry LJ observed in Flannery v Halifax Estate Agencies Ltd, it should not be assumed that a court, for whatever reason, has failed to give reasons or at least adequate reasons in fact had no reasons for coming to its decision. However, as Henry LJ also observed, if the reasons are not set out then neither the parties nor an appellate court can know whether they were good or bad because the judgment is not transparent. The pursuers are therefore entitled to say, as they do say, that, up to this point, they have not had a fair trial of the issues and that the defender has not had a fair trial either is not an answer to that.

[150] The pursuers are accordingly entitled to a remedy. It will be recalled that when we were setting out the pursuers’ position in brief we identified the first proposition that the pursuers had to establish was that the Lord Ordinary’s opinion is so flawed that his interlocutor might properly be recalled. We accept that the pursuers have established that proposition. However, that only takes them so far. As was explained by junior counsel for the defender, a reclaiming motion against an interlocutor of the Lord Ordinary pronounced after proof, as usually conducted, involves a two-stage decision-making process. The first stage is to scrutinise the Lord Ordinary’s decision. Where, as a result of that scrutiny, the Inner House comes to the view for example that the reasons given by the trial judge are not satisfactory (which is the case here), that leads to a second stage, at which the matter will then become at large for the appellate court in the sense that it becomes open to the Inner House to reconsider and determine the issues, including the issues of fact, which were originally before the Lord Ordinary (cf Thomas v Thomas Lord Thankerton at p.54).

[151] That at least, as both parties agreed, is the usual course but, as we have foreshadowed, it was not the course that the pursuers wished to follow in the present case. Their approach was to focus on the inadequacy of the Lord Ordinary’s opinion as a properly reasoned judicial decision. Beyond that, as junior counsel for the pursuers put it, “all [we] need to do is to show that there was a good going dispute between the parties”. On the pursuers’ approach because the Lord Ordinary had failed to provide a properly reasoned judicial determination of that dispute, his interlocutor of 23 January 2014 assoilzing the defender should be recalled and the whole matter remitted to a single judge to determine it anew. In other words rather than going through a two-stage decision-making process this court was invited to stop at stage one. There would be no stage two in the sense of a reconsideration of the issues. The process of determining the issues would start again before a different Lord Ordinary who would conduct a fresh proof. Although in their note of argument this disposal is put forward as an alternative to the Inner House determining all issues between the parties, when it came to the hearing of the reclaiming motion counsel explained that this was the only option for which the pursuers argued.

[152] The pursuers’ proposal is nothing if not radical. The defender argued that it was incompetent but, if competent, wholly inappropriate. We turn to consider these arguments.

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170 MacLeod’s Representatives v Highland Health Board (IH) 2017 S.C.L.R. A

Disposal Submissions for the pursuers

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[153] According to the pursuers, because the Lord Ordinary’s opinion was so deficient as a statement of judicial reasoning, it could not stand and therefore the Lord Ordinary’s interlocutor must be recalled but that did not mean that this court must then proceed to decide the merits of the case on the basis of the transcript. Such a course would not be possible as the Lord Ordinary had not given the Inner House the necessary tools with which to resolve the issues.

Because evaluation of the evidence and its effect was dependent on the resolution of questions of fact which had not been properly addressed by the Lord Ordinary and because of his failure to make any proper analysis of issues of credibility and reliability, or any proper assessment of the expert witnesses, the case could not be determined on the basis of a purely paper exercise. It was not a matter of just looking at discrete issues; the Inner House would have to look at the whole evidence and in doing so reappraise each of the witnesses.

The very scale of the exercise was a reason not to go down that road. The Inner House could not take on the role of a court of first instance. In order to do justice therefore there was no alternative but to allow the reclaiming motion and then remit to the Outer House to hear proof over again. Senior counsel for the pursuers accepted that the rehearing of the whole of a Court of Session proof was something without precedent. However, the court had an inherent jurisdiction to regulate its procedure in order to do justice: Hall v Associated Newspapers Ltd at p.9; Tonner v Reiach & Hall; Taylor Clark Leisure v HM Commissioners for Revenue and Customs. It should exercise that jurisdiction and remit the case to the Outer House for proof on all issues.

D Submissions for the defender

E

F

G

5467.indd 170

[154] On behalf of the defender it was submitted that the disposal sought by the pursuers was incompetent. As the pursuers had conceded it was entirely without precedent notwithstanding the fact that the requirement for a reasoned judgment was a matter of common law and must have been raised as a criticism of the Lord Ordinary’s opinion in previous cases. In contrast to the provisions which allowed for a new jury trial or the taking of additional proof (Court of Session Act 1988, ss.29 and 37; see also Rankin v Jack), there was no basis in statute for ordering a new proof. Reference to the practice of the Court of Appeal in England was of no assistance as Civil Procedure Rule 52.10(2)(c) specifically conferred power to order a new trial. As appeared from Tonner at para.92, a court cannot confer on itself a power which does not exist. Nothing in the reports of either the Lord Penrose or Lord Gill reviews suggested that the Inner House could dispose of a case in the way suggested by the pursuers, whereas what was said in Thomas v Thomas at pp.54, 56 and 59, and Thomson v Glasgow Corporation at pp.61 and 70 would suggest that it could not. In Longworth vYelverton at p.649 Lord President McNeill, contrasting the position of a proof and a jury trial, had said, “It would not be competent in this case to obliterate the whole proof and begin anew”. There was authority in relation to appeals in the sheriff court (prior to the establishment of the Sheriff Appeal Court by s.46 of the Courts Reform (Scotland) Act 2014) that whereas the sheriff principal might allow further proof, his powers did not extend to the allowance of proof anew on the whole case: Whitehouse v Strathclyde Regional Council, referred to in Macphail at para.18.81.

[155] Junior counsel for the defender argued, under reference to Thomas v Thomas, that the pursuers’ justification for what they conceded was a highly

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 171 unusual course of action was illogical. As appeared from Thomas, for the reclaimer to succeed in a reclaiming motion the court must be persuaded to look at the material presented to it in two stages. The first stage is consideration of the Lord Ordinary’s opinion. Only if the appellate court is satisfied that the Lord Ordinary has not taken advantage of his having seen and heard the witnesses or because his reasons are not satisfactory or because it unmistakably so appears from the evidence, will, at what is a second stage, the case be at large for the appellate court. At the second stage it is for the appellate court to carry out its own analysis of the case. Here the pursuers say that the Inner House is unable to carry out its own analysis, the reason being the fundamental nature of the flaws in the Lord Ordinary’s opinion which should persuade this appellate court that the first-stage test had been met. It simply made no sense to say, as the pursuers were saying in this case, that in order to carry out its reanalysis at stage two the Inner House had to be able to rely on certain aspects of the opinion which ex hypothesi had been found to be flawed at stage one.

As was observed in the course of discussion, the pursuers’ position seemed to be that the greater the error on the part of the Lord Ordinary the less able will be the Inner House to deal with it. That, counsel submitted, could not be so.

The short and correct position was that if for any reason a case could not be reassessed on the papers then the Lord Ordinary’s decision stands.

[156] If, contrary to his principal submission, there was power to order a rehearing counsel submitted that it was inappropriate to exercise it here. To do so would result in prejudice to the defender. The consideration that it was an important and high-value case cut both ways. Litigation should be final. What was proposed was a further consideration of events which had occurred in 1999. There had been difficulties with the proof in 2013. These will not have disappeared. Key witnesses, including Dr Alberts, could not be found.

The anaesthetist, Dr Mathur, had relocated abroad. Those witnesses who did attend had to recollect or reconstruct their then usual practice at a remove of more than 13 years. Dr Atal had become a general practitioner. Midwife Macpherson was 73 years of age at the time of the 2013 proof, having retired eight years before. She was at times confused and had difficulties in recalling events and usual practice. She had found the process stressful and indeed at one point during the proof she had collapsed. Recent investigation indicated that she was currently extremely ill. She was frail. It would unfair to her and to the defender to expect her to give evidence afresh at future date. Dr Hulse had been 68 years old at the proof in 2013, having retired in 2001. Were a new proof to be ordered, in addition to the problems associated with asking witnesses about matters now many years in the past there would be the additional problems associated with the witnesses’ earlier experience of giving evidence. While there was the possibility of evidence being agreed, where issues about credibility and reliability were live that might be problematic. A new proof would inevitably be encumbered by reference to the existing transcript as a source of previous inconsistent statements. At the same time, it could not be assumed that the case at any further proof would be exactly the same as it had been at the first proof. It was likely that the pursuers would renew their attempt to amend to introduce new cases in respect of consent to antenatal care and the management of the labour by Dr Sharkey between 21.40 and [01].15 hours on 1 June 1999. What was in prospect therefore was not simply a rehearing.This went to the prejudice which would be suffered by the defender.

[157] There were then the financial consequences of any new proof. Up until March 2013 the defender had spent more than £335,000 on the case in a situation where the National Health Service Central Legal Office does not

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charge the full commercial rate. To throw that away would involve the “hideous waste of costs” referred to in English v Emery Reimbold & Strick at para.25.

Discussion

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D

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5467.indd 172

[158] The pursuers’ proposal collides head-on with what was said, very recently, by Lord Justice Clerk Carloway delivering the opinion of the court in Scottish Ministers v Stirton at para.87: “One interesting feature of the reclaimers’ grounds of appeal was the concentration upon points which, the reclaimers maintained, would demonstrate apparent bias on the part of the Lord Ordinary.The contention, which they had apparently intended to make in framing the grounds of appeal, was that, if apparent bias were to be demonstrated, that would be the end of the case and the prayer of the petition would be refused. However, as was accepted by all parties at the summar roll hearing, in civil proceedings that result is unlikely to follow. In a reclaiming motion, if it is demonstrated that a Lord Ordinary hearing a proof has erred in some fundamental manner, which vitiates the findings in fact, the case does not come to an end with the victor in the Outer House becoming the automatic vanquished in the Inner House. Rather, in that situation, it will normally be necessary for the Inner House to carry out its own review of the evidence (and if necessary to hear additional evidence) and to reach its own decisions of fact based upon that evidence. That may be a lengthy process, but it is one that would require to be embarked upon. In that regard, it is not normally competent, as it may be in certain statutory appeals, for the court in a reclaiming motion to avoid this exercise by remitting the cause to the Outer House for a rehearing of the proof by a different Lord Ordinary (c.f., T v T 2001 S.C. 337, LP (Rodger) at para.68). The reclaiming motion, for review of the Lord Ordinary’s interlocutor, encompasses a rehearing, where appropriate, of the evidence which was, or ought to have been, adduced.”

What the Lord Justice Clerk describes as normally necessary where a reclaimer succeeds in demonstrating that the Lord Ordinary who heard a proof has erred in some fundamental manner which vitiates his findings in fact, conforms with what has happened in every such reclaiming motion of which members of the bench and counsel have knowledge. There is no authority for what the pursuers propose whether in statute, the Rules of Court or judicial precedent.

As the Lord Justice Clerk observed, additional evidence may be heard (by a member of the Inner House) in order to determine an issue raised in a reclaiming motion where evidence had not been led on the matter in the Outer House: e.g. Reid v Haldane’s Trustees; Vitruvia Steamship Co Ltd v Ropner Shipping Co Ltd (No.2); Hewat v Edinburgh Corporation; Rieley v Kinslaw Riding School. Power to that effect was formerly conferred by s.62 of the Court of Session Act 1868 and is now conferred by s.37 of the Court of Session Act 1988. Mackay v Mackay was an undefended action for divorce where the pursuer reclaimed against dismissal on the basis of a failure to corroborate adultery. In what has the look of a pragmatic solution to a technical problem, the Inner House recalled the interlocutor of the Lord Ordinary and remitted to him to take such further evidence as might be tendered but the decision did not in any way disturb the evidence previously led. Where a Lord Ordinary has died, retired or become incapacitated during the period of adjournment of a partly heard proof, Rule of Court 36.13 allows the Inner House to give directions which may be for the continuation of the proof before another Lord Ordinary: e.g. AMN Group Ltd v Gilcomston North Ltd. However, counsel for the pursuers were unable to point to any reported example of a previous proof before the Lord Ordinary being, as it were, erased and the procedure set back

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 173 to the point of allowance of proof in order that another Lord Ordinary might hear evidence anew: c.f., Longworth v Yelverton at p.649.

[159] Pursuers’ counsel made reference to the practice of the English Court of Appeal. That does not assist. As counsel for the defender pointed out, there is specific provision for the allowance of an appeal and remit to the lower court to conduct a new trial in Civil Procedure Rule 52.10(2)(c).

[160] In moving for recall of the Lord Ordinary’s interlocutor and a remit to the Outer House for proof of new, the pursuers accordingly wish us to depart from what they acknowledge to be the invariable practice of the court.

We have not been persuaded that it is open to us to do so. The pursuers rely on what was said and done in Tonner v Reiach & Hall under reference to what Lord Justice General Emslie, giving the opinion of a court of five judges in Hall v Associated Newspapers Ltd described as “the indispensable power which is inherent in every court to do whatever is necessary to discharge the whole of its responsibilities”. Tonner was considered in Hepburn v Royal Alexandra Hospital NHS Trust where, in a partially dissenting opinion, Lord Carloway questioned the legitimacy of what had been done in the earlier case. That is not a debate which we require to enter into but we recognise the force of Lord Carloway’s observation, at para.54 of his opinion, that such inherent power as the court may have does not allow a single judge or division of the court to adopt an ad hoc measure simply on the basis that it is in accordance with the judge’s or division’s notion of justice in the circumstances of a case. That said, we would take a certain amount to be uncontroversial. The Court of Session has power, which is not dependent on statute or the Rules of Court but, rather, emanates from its constitutional function and therefore can be described as inherent, to regulate its own procedure. As Erskine has it, “every power is understood to be conferred without which the jurisdiction cannot be explicated”: Institutes I.ii.8. Thus, in part, procedural law is based on practice (Lord President Hamilton gives some examples of that at para.31 of his opinion in Tonner) and, as in other areas of the law, may be developed as a result of judicial decisions: Tonner para.31. However, that is rather different from abandoning well-established procedure simply to deal with what are said to be the exigencies of a particular case. But the question of innovating on established procedure only arises where the particular case does present exigencies for which the established procedure makes no provision. The very bare minimum for an exercise of the court’s inherent power in matters of procedure must be that the proposed novel step should be “necessary to discharge the whole of [the court’s] responsibilities”, as Lord President Emslie put it in Hall. In the present case we see there to be no question of it being necessary to remit to the Outer House for a new proof.

[161] For all that senior counsel for the pursuers sought to emphasise what were said to be the many failures on the part of the Lord Ordinary, this case is not so unusual. The same counsel went out of his way to acknowledge how well the proof had been conducted. Although there had earlier had been some doubt about this, all the evidence is available to this court in the form of a transcript together with the documentary productions. We were accordingly able to reconsider the case on the papers. We were willing to do so and, indeed, would have considered it our duty to do so if we had been so required; where the Lord Ordinary has been shown to have erred, it is for the Inner House to decide the case: Clippens Oil Co Ltd v Edinburgh and District Water Trustees at p.750; Duncan vWilson at p.224; Scottish Ministers v Stirton at para.87; Maxwell, The Practice of the Court of Session at p.545. It would have been a lengthy and perhaps difficult task but, with the assistance of counsel, by no means

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174 MacLeod’s Representatives v Highland Health Board (IH) 2017 S.C.L.R. A

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impossible. We simply do not accept the argument on behalf of the pursuers that the Lord Ordinary’s failures fully to address the credibility and reliability of witnesses, evaluate the competing expert evidence and make certain proposed findings in fact would in any way have precluded our carrying it out.

A judge who hears witnesses giving evidence undoubtedly has advantages which an appellate bench reading the transcript does not have when it comes to determining what to make of the evidence but that simply means that a court which is deciding a case on the papers must do the best it can. Appellate courts are capable of addressing the credibility and reliability of witnesses: see e.g. Duncan v Wilson; Yuill v Yuill and (a case cited and applied in Yuill) Hvalfangerselskapet Polaris A/S v Unilever. Having done so, they are also capable of making findings in fact de novo on the basis of the transcript. Dingley v The Chief Constable of Strathclyde Police is a notable example of the Inner House doing just that in a complex case where the Lord Ordinary had provided no analysis of the evidence whatsoever.

[162] Accordingly, not only is the pursuers’ proposed disposal entirely unprecedented, it is unnecessary. In our opinion, it follows that whatever view one takes of the extent of the inherent power of the court, the only course that the pursuers invite us to take in this case is incompetent.

Conclusion

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[163] Having accepted the pursuers’ argument that the Lord Ordinary’s explanation of why he made what he did of the evidence is inadequate, this court was prepared to enter into a reconsideration of that evidence but counsel for the pursuers did not invite us to do that and indeed expressly declined to present the reclaiming motion in such a way as would have made that possible.

What counsel did invite us to do is not something which, in our opinion, is competent. We are therefore left with only one option which is to refuse the reclaiming motion.

[164] However, we do not wish to leave our consideration of the case on what may seem to be a purely technical note. We are even less willing to leave it implying some failure on the part of the pursuers’ counsel to present their case in the best possible way. As for the latter point, it appears to us that everything that could be achieved by skill, diligence and passion has been brought to bear in support of the pursuers’ case. In preparing for the hearing of the reclaiming motion once the transcript became available, the pursuers’ counsel left open the option of arguing that when regard was had to all of the evidence the Lord Ordinary had been “plainly wrong” in finding that it had not been established that Rowan had sustained her undoubted brain damage by reason of negligence for which the defender is liable. However, it would appear that as counsel further considered that evidence they appreciated that while some parts of it supported the pursuers’ case, other parts did not. As the pursuers’ counsel fairly and properly acknowledged, the Lord Ordinary was entitled to accept these other parts and, insofar as they represented a respectable body of professional opinion which could not be shown to be irrational, he was bound to accept them. A reconsideration of the evidence by this court might therefore have led to the conclusion that for all the criticisms that could be made of the Lord Ordinary’s opinion, his decision was nevertheless the correct one on the basis of the evidence that had been led.

This would appear to have led counsel to modify their approach; rather than saying that the Lord Ordinary’s conclusions were necessarily wrong they focused their criticisms on the quality of his reasoning or, rather, the extent to which his reasoning was set out in his opinion. The argument came to be:

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2017 S.C.L.R. MacLeod’s Representatives v Highland Health Board (IH) 175 because the Lord Ordinary did not properly explain himself his conclusions must be set aside and the proof must be heard over again. However that brought them face to face with what proved to be the insurmountable hurdle that that is simply not how our appellate process is conducted. Thus, while the reason why the pursuers’ case fails can be described as a procedural difficulty, in truth the difficulty appears to us to have been more substantive. Although we have not heard full argument on the correctness or otherwise of the Lord Ordinary’s opinion, as indicated at para.124 of this opinion, we have considered the evidence of Professor Walker and concluded that the Bolitho principle must almost inevitably apply, with the result that the pursuers’ case must fail.

We have further considered the evidence on causation, as summarised at para.140 and concluded that the Lord Ordinary was entitled to conclude that the causal mechanism had not been proved, notwithstanding Professor Stenson’s evidence. That conclusion too means that the pursuers’ case cannot succeed.

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

A

For the pursuers: Gail QC, Heaney, instructed by Drummond Miller LLP, Solicitors, Edinburgh.

For the defender: Stephenson QC, Dawson, instructed by Central Legal Office, Edinburgh.

C

B

D

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5467.indd 175

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A COURT OF SESSION Outer House

21 April 2016

Temporary Judge J Beckett QC B

NEIL CUMMING

Pursuer

against TAYSIDE HEALTH BOARD

Defender

Process—Recovery of documents—Report prepared on behalf of defender—Whether recoverable

C

D

E

F

G

The pursuer raised an action for reparation in unusual circumstances. He was detained in the State Hospital, having been acquitted of the charge on murder by reason of insanity. He had killed his wife and after doing so attempted to commit suicide by driving his car into another vehicle causing injury to other road users and to himself as a result of which both he and the defender had been sued by those other road users in Perth Sheriff Court.

In the action he raised, his claim was that a psychiatrist employed by the defender had been negligent in failing to advise the pursuer of the availability of a bed at Murray Royal Hospital Perth and in failing to arrange his admission there when he attended with her on 14 July 2011 at Ninewells Hospital, Dundee. He claimed that but for the negligence alleged he would not have killed his wife nor attempted to commit suicide. The defender pled “ex turpi causa non oritor actio” but the pursuer averred that the principle was not applicable where the pursuer was insane when he killed his wife. The pursuer applied for commission and diligence to recover, among other things, documents prepared for the defender at the time of the events including documents upon which the conclusion contained in a report headed “Significant clinical event analysis (SCEA) review” had been based. Part of the document had been produced but the defender opposed the motion in relation to the remainder of the documents.

A sharp dispute arose between the position of the pursuer and the defender in relation to what happened at the medical consultation between the pursuer and Dr McLaren. The pursuer averred that Dr McLaren did not tell him or his wife of the availability of a bed in Murray Royal Hospital in Perth and if he had been told he would have accepted the place and travelled to Perth to be admitted. The defender averred that Dr McLaren had agreed with the pursuer that he should be re-admitted to hospital for review and for a planned medication change under inpatient supervision. The doctor ascertained that there was no bed available at the Carseview Centre but learned that a bed was available at Murray Royal Hospital and offered it to the pursuer who declined as he preferred to wait for a bed to become available at the Carseview Centre.

Counsel for the pursuer explained that the crucial issue for the pursuer was to be able to prove that he was not offered a bed by Dr McLaren. In opposing the motion the defender was arguing that the real issue related to whether the report and the documents on which it was based were within the post litem rule such that it was not susceptible to recovery by the pursuer. The defender had indicated that the director of the NHS Tayside would be called as a witness to speak to the contents of the report it was only fair that the pursuers should have the material on which his conclusions were based and he ought to have the material available when he called Dr McLaren as a hostile witness in order that her evidence might be tested by reference to contemporaneous material.

176

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Cumming v Tayside Health Board (OH)

177

Counsel for the defender explained that it was the advent of freedom of information and data protection legislation which led to the development of policies such that the review report would be released as a matter of course to certain persons and it should not be understood as a waiver of privilege in respect of the underlying information used to compile the report. In any event the report contained inadmissible opinion evidence of the issue before the court and he did not intend to call the medical director to speak to the report.

Held that the terms of reference for the SCEA review did not take the underlying material outwith the post litem motem rule and there was a strong policy consideration underlying the general rule namely that an organisation should not be inhibited from carrying out legitimate investigations and that it was undesirable to paralyse the taking of remedial measures which might thereby be identified and commission and diligence for those parts of the specification relating to the documents should not be granted (paras 30, 31 and 33); and motion for commission and diligence in respect of the disputed call refused.

A

B

Cases referred to: Komori v Tayside Health Board [2010] CSOH 30; 2010 S.L.T. 387 More v Brown and Root Wimpey Highland Fabricators Ltd, 1983 S.L.T. 669 Young v National Coal Board, 1957 S.C. 99; 1957 S.L.T. 266.

C

The full circumstances of the case and the arguments of counsel are to be found in the opinion of the temporary judge which was issued on 21 April 2016.

TEMPORARY JUDGE BECKETT QC D

Introduction

[1] In this action the pursuer sues the defender for reparation in unusual circumstances. He is detained in the State Hospital having been acquitted, by reason of insanity, of the murder of his wife. After killing his wife on 15 July 2011, the pursuer attempted to commit suicide by driving his car into another vehicle causing injury to other road users and to himself as a result of which both he and the defender have been sued by those other road users in Perth Sheriff Court.

[2] The pursuer’s claim is that a psychiatrist employed by the defender, Dr Lyn McLaren, was negligent in failing to advise the pursuer of the availability of a bed at Murray Royal Hospital, Perth and in failing to arrange his admission there when he attended with her on 14 July 2011 at Ninewells Hospital, Dundee. He claims that, but for the negligence alleged, he would not have killed his wife the next day and would not have attempted to commit suicide. Accordingly he seeks solatium in respect of the loss of his wife and claims under various other heads of damages. Whilst the defender pleads “ex turpi causa non oritur actio” Mr Davidson explained that the pursuer will seek to persuade the court that the principle is not applicable where the pursuer was insane when he killed his wife.

[3] The case called before me on the pursuer’s partly opposed motion, first, to amend by the inclusion of a further head of damages and, secondly, to grant commission and diligence. In the course of the hearing on 3 March 2016, I allowed the amendment of consent and permitted time for the defender to answer. I granted commission and diligence in respect of calls 1, 2 and 3 of the specification of documents to which there was no objection. However the defender continued to resist call 4 of the specification and I heard parties in that regard before making avizandum.

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2017 S.C.L.R.

[4] In the course of the hearing, in light of submissions made, Mr Davidson proposed various amendments to his specification, but consensus was never reached between the parties as to the extent of the material which could legitimately be recovered.

Call 4 of the specification

B

C

D

E

[5] I set out below the terms of call 4 and 5. The italicised, bold text represents amendments made by Mr Davidson in the course of the hearing.

“4. All documents prepared by Dr McLaren at or about the time of events on 14 and 15 July 2011 available to and relied upon by the defender’s significant clinical event analysis review (as described in article IV.4 of condescendence) and in the hands of the defender or anyone onits behalf (except insofar as compiled in contemplation of litigation) relative to: (i) the care and treatment provided to the pursuer in the period prior to and including 15 July 2011; (ii) the circumstances surrounding the pursuer’s road traffic accident of 15 July 2011; and (iii) the circumstances surrounding the death of the late Mrs Barbara Jane Cumming on 15 July 2011. so that excerpts can be taken therefrom at the sight of the commissioner of all entries therein showing or tending to show the contents of the following documents described in s.2.3 of the said review’s final report dated 24 August 2012: (a) the incident report form raised on 15 July 2011 relative to the care and treatment of the pursuer; (b) the medical/nursing case notes of the pursuer; and (c) the documentation/statements from the defenders staff, with regard to the care and treatment provided to the pursuer on 14 July 2011.

5. Failing principals, copies, duplicates or drafts of any or all of the above.”

In the course of the hearing it became apparent that the pursuer has all of his medical records and, as I go on to explain in para.15 below, a document which was produced by the defender and given to the pursuer in the hearing appears to me to be the incident report form referred to in 4(a).

Background

F

G

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[6] It is not disputed between the parties that the pursuer has a lengthy history of serious mental disorder and that following a worsening of his symptoms whilst on holiday with his wife (the deceased) in July 2011 he was examined on 14 July 2011 at Ninewells Hospital, Dundee by Dr Lyn McLaren who concluded that the pursuer should be re-admitted to a psychiatric hospital for in-patient care. Dr McLaren advised the pursuer and the deceased that no bed was available for him at the Carseview Centre within Ninewells Hospital on 14 July. A bed was available in another hospital run by the defender, the Murray Royal Hospital in Perth.

[7] A sharp dispute then arises between the position of the pursuer and the defender. The pursuer avers that Dr McLaren did not tell him or the deceased of the availability of a bed in the Murray Royal in Perth. He avers that had he been told, he would have accepted the place and travelled to Perth to be admitted.

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Cumming v Tayside Health Board (OH)

179

[8] The defender avers that Dr McLaren agreed with the pursuer that he should be re-admitted to hospital for review and for planned medication change under inpatient supervision. Having ascertained that there was no bed available at the Carseview Centre, Dr McLaren learned that a bed was available at the Murray Royal and offered it to the pursuer who declined as he preferred to wait for a bed to become available at the Carseview Centre.

Dr McLaren had known the pursuer for years and was familiar with his history, which did not include violence or aggression. Having carried out a full clinical risk assessment, Dr McLaren concluded that the pursuer did not meet the criteria for compulsory admission to hospital.

[9] The pursuer maintains that on his averments, Dr McLaren acted in a manner in which no ordinarily competent doctor in her position could have done.

[10] It is not in dispute that the pursuer repeatedly struck his wife with a knife in the family home on 15 July causing her death and that he then attempted to commit suicide by driving.

[11] It is not in dispute that the defender carried out a “Significant clinical event analysis [SCEA] review” into the events of 14 July 2011. The conclusion of the final report dated 24 August 2012 was that Dr McLaren had on 14 July 2011 offered the pursuer a bed at Murray Royal Hospital and that he had been offered appropriate care in July 2011.

[12] Pursuant to health board policies, a copy of that report has been disclosed to the pursuer who maintains that he is entitled to recover the documents on which the conclusions in the report were based. A copy of the report is lodged for the pursuer as No 6/1 of Process which is entitled “Significant clinical event analysis review – final report” which is marked “highly confidential”.

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The report, No 6/1 of Process

[13] It is stated that the significant clinical event analysis was held on 14 May 2012. At s.2.1, under the heading “Terms of reference” it is stated: “The aims of a significant clinical event review are: • To establish the background and sequence of events that led up to the incident.

• To identify underlying contributing factors in management and organisational systems.

• To identify lessons learned and develop a list of recommendations that would prevent similar incidents occurring in the future.

• To communicate any findings and recommendations across the organisation to those individuals directly affected or involved.

It is important to note that whilst acknowledging the professional responsibility and accountability of all staff and departments involved in this incident, it is NOT the purpose of this report to apportion blame.

The report has been prepared based on information obtained during the SCEA review and extracts from the clinical record.

This report remains confidential and is not retained as part of the medical notes of the person involved.

Whilst family members are involved in the SCEA process, the panel will address and explore the issues on the family’s behalf, finding the answers to their questions and informing them of the outcome of the review. In addition the family will be advised of actions that will be taken as a result of the review. ...

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2017 S.C.L.R.

The medical director informed the attendees that outcomes of SCEAs are often requested by the procurator fiscal and whilst no request has been received as yet, a full report is given to the procurator fiscal if requested.”

[14] At s.2.3, under the heading “Methodology” it is stated: “The incident report form raised on 15 July 2011 and pertinent medical/ nursing case notes, documentation and statements from staff in relation to NC’s care were circulated to the review group members prior to the SCEA review being held.”

[15] In the course of the hearing, counsel for the defender produced to the court and to the pursuer a copy of a document which appears to me to be the incident report form raised on 15 July 2011. It narrates that the pursuer was referred by Dr McLaren on 14 July 2011 to the acute mental health response team (AMHRT) via the community mental health team and that AMHRT was to offer additional support to the pursuer which included a nurse speaking to the pursuer on 15 July and making an appointment to visit him at home at 3 pm. In the event, the staff member was unable to access the pursuer’s home because of police activity which he came to understand related to the pursuer.

It narrates that police officers came to take statements from staff at the Carseview Centre later that day.

[16] Counsel for the defender also produced a copy of the NHS Tayside risk management significant event management policy (SEM) dated January 2012 which had been in force when the review was conducted. At para.6.1 under the heading “Significant clinical event analysis” there is a list of 14 situations in which such an analysis must be held, none of which would have prompted the review which was held following the events of 14 and 15 July 2011. It goes on to state: “Local teams can also request a SCEA in the following circumstances: Where the incident is likely to result in highly damaging adverse publicity/ defamation.

• Where the incident is likely to result in a claim being pursued against the organisation.

• Where the incident could result in any of our hospitals being incapable of operating normally and whereby ‘shut down’ is imminent.”

[17] The version of NHS Tayside’s SEM updated in August 2012 was also produced. At para.7.3, it states: “Release of incident report forms/significant event analysis reports

F

Individuals who are the subject of incident “Copies of incident report forms and significant event analysis reports will be provided as part of a data protection subject access request. However, the data subject will be provided with personal information relating to them only. All other personal information relating to other individuals (i.e. verifiers, witnesses, etc) within the documentation must and will be removed.”

Submissions for the pursuer

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[18] For the pursuer, Mr Davidson explained that the crucial issue for the pursuer was to be able to prove that he was not offered a bed by Dr McLaren.

The detailed medical notes of her examination of the pursuer on 14 July did not contain any record that a bed was free in the Murray Royal or that it was

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offered by Dr McLaren to the pursuer. The whole case would turn on what happened at that meeting.

[19] Counsel submitted that whilst there was reference to a fishing diligence in the opposition to the pursuer’s motion, he apprehended that the real issue related to whether the report and the documents on which it was based fell within the post litem motem rule such that it was not susceptible to recovery by the pursuer. The court should find an analogy with the circumstances encountered by Lord Uist at first instance in Komori v Tayside Health Board, a decision to which both sides made extensive reference.

[20] Whilst what was recorded at para.11 in Komori was counsel’s submission which was not dealt with by Lord Uist, the proposition that disclosure of the report necessarily waived any confidentiality under the post litem motam rule which might otherwise be attached to the underlying documents was a sound one. Since the defender’s statement of proposals for further procedure under RCS 42A.3.(3), indicated that the medical director of NHS Tayside would be called as a witness to speak to the contents of the SCEA review, it was only fair that the pursuer should have the material on which his conclusions were based.

That material ought to be available to the pursuer when he called Dr McLaren as a hostile witness in order that her evidence might be tested by reference to contemporaneous material. The decision in Komori was entirely in point and the specification ought to be granted in full.

[21] In response to the defender’s submissions, counsel made the amendments to his specification shown at para.5 above.

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Submissions for the defender

[22] For the defender, Mr Pugh explained that it was the advent of freedom of information and data protection legislation which led to the development of policies such that the review report would be released as a matter of course to certain persons and it should not be understood as a waiver of privilege in respect of the underlying information used to compile the report.

[23] Counsel then challenged the relevance of the conclusion reached in the report to the issues in the case. It was inadmissible opinion evidence of the issue before the court and he would not be calling the medical director to speak to the report. That possibility had only been adverted to in the defender’s proposals because the pursuer’s averments had suggested that the case may rest on several bases. Counsel for the pursuer, in his note of proposals for further procedure, had now confirmed that the allegation of clinical negligence turned on the answer to a single question: “At any time during her consultation with the pursuer and the deceased of 14 July 2011, did Dr Lyn McLaren . . . mention that there was an available bed at the Murray Royal Hospital, Perth and offer it to the pursuer?”

Mr Davidson having again confirmed that position in his submissions, Mr Pugh stated that he will not call the medical director to speak to the conclusions of the review report.

So far as call (b) was concerned, since the pursuer already has all of these medical records, the only purpose of the call could be to ascertain what medical records were before the review.

[24] Counsel commended Lord Uist’s opinion in Komori as a sound and accurate review of the law, but submitted that the case was plainly different on the facts and did not support the pursuer’s application.

[25] Counsel drew attention to the passage from Young v National Coal Board, quoted in Komori at para.14 and submitted that what he termed the

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“accident book exception” was well described there. This passage gave rise to the standard call in a specification where material within the accident book exception was sought.

“The principle that after an accident, and even before any claim has been made, each party having a possible interest should be entitled to pursue his own investigations into the cause of the accident free from the risk of having to reveal his information to the other side suffers at least one exception . . .

That exception . . . relates to reports by employees present at the time of the accident and made to their employers at or about that time. It appears to be an arbitrary exception, incapable of being extended to cover other reports.”

C

[26] If the pursuer chose to reframe his specification in that way, then the defender would welcome the opportunity to take instructions on making voluntary disclosure of any such material. However, as framed the calls were far too wide and did not fall within the recognised exception and had the flavour of a fishing expedition for material to use in the examination of Dr McLaren. A litigant seeking to recover statements of witnesses who were not parties to the cause for the purposes of cross-examination would not ordinarily succeed. The defender’s policy in carrying out review investigations is that witness statements will not be produced and it is concerned that being forced to depart from that policy would hinder the kind of investigations which the defender has to undertake. The contents of those documents referred to at paras 16 and 17 above, tended to confirm that the report and underlying information was subject to the post litem motam rule.

D

Decision

E

F

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[27] I was not addressed on any of the cases which examine the question of waiver in the context of a claim for confidentiality. Whilst Mr Davidson referred to waiver, he did so in the context of a contention that natural justice and fairness required that if the author of the report was to be called by the defender to speak to its conclusions, then the validity of those conclusions ought to be capable of being tested by reference to the material on which he relied in reaching them. Once Mr Pugh had made the concession that the medical director would not be called, the issue was not revisited by the pursuer.

[28] Mr Davidson’s principal argument was that, by analogy with Komori, the material in the specification ought to be viewed as falling outwith the post litem motam rule.

[29] I consider that Komori is a case which very much turns on its own facts and that Lord Uist did not conceive himself to be innovating on the principles established in case law. He carefully explained the particular context in para.31 of his opinion, identifying the precise circumstances and the purpose for which the documents in question were created. Those circumstances involved a patient complaint which could only be investigated if it was not something about which the complainant was taking legal action. Accordingly, since when the complaint was made an investigation was carried out, it followed that legal action was not under contemplation. In para.32, Lord Uist observed that the documents were created at the instigation of the pursuer for her benefit and there would have been no investigation in the absence of her complaint. The pursuer could be viewed as trying to find out if there had been some form of accident and it could not be said that the defenders were pursuing their own investigations of the accident.

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[30] I am not persuaded that the situation in the present case is comparable.

It appears to me that the purpose of the review was very much wider. I do not agree with the submission that its terms of reference take the underlying material outwith the post litem motam rule.

[31] Contemporary Scottish society is no less litigious than it was in 1983 when the Lord President refused to order recovery of photographs of the locus taken shortly after an accident at work by the employer’s safety officer in More v Brown and Root Wimpey Highland Fabricators Ltd, referred to in Komori at para.23.

“The general rule has always been understood to apply to reports and records prepared by or on behalf of one side or the other after a real likelihood of a claim and a disputed question of liability has emerged. The particular formulation of the rule which has existed since 1957 has simply reflected recognition by the courts that in modern conditions there are few, if any, accidents, and especially industrial accidents, which do not give rise to a real likelihood of a dispute about liability, and that in the interests of certainty it must now be recognised that confidentiality ought to attach to all records and reports of investigations made after an accident has occurred.”

The reference to 1957 is a reference to Young v National Coal Board, quoted in Komori at paras 14–17. In Young, whilst the decision of the Lord Walker at first instance was overturned on appeal, part of his opinion (at p.101) was approved on appeal as it has been in subsequent cases. He explained that subject to the exception of spontaneous reports made by employees at the time of an accident: “The principle (is) that after an accident, and even before any claim has been made, each party having a possible interest should be entitled to pursue his own investigations into the cause of the accident, free from the risk of having to reveal his information to the other side. . . .”

On appeal, the Lord Justice Clerk stated, at p.105: “The court has inherent power to compel the parties to a cause to produce documents which may have a bearing on the issues between them.

The court will not, however, in the ordinary run of things, order production of documents which have been prepared in anticipation or in development of a party’s case. Once the parties are at arm’s length, or are obviously going to be at arm’s length, the details of their preparation of weapons and ammunition are protected as confidential. Just when the parties come to be at arm’s length may often be a difficult question, especially as some potential defenders prepare well in advance against the contingency of accidents, and indeed, under modern conditions, few accidents, and particularly few industrial accidents, can happen without its occurring to one or other party at an early stage that questions of disputed liability may arise.

“However that may be, there is a long series of cases where reports made immediately after the occurrence of an accident by a responsible person to his employers, to inform them of what has happened, have been allowed to be recovered. The underlying theory is that, if such a report is made as part of routine duty, and as a record of the reporter’s immediate reaction before he has had the time, opportunity or temptation to indulge in too much reflection, it may well contain an unvarnished account of what happened and consequently be of value in the subsequent proceedings as a touchstone of truth. The same theory underlies the reception in our criminal law of de recenti statements in support of credibility, and the preliminary act in Admiralty causes.

“This doctrine is of limited scope, both as to the authorship and character of the reports sought to be recovered and as to the time at which they are

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made. If the scope of the doctrine were extended, it would be apt to handicap the legitimate investigations of defenders, paralyse their remedial measures, and indeed rob the reports of that spontaneity which may be their virtue.�

[32] These dicta suggest that a strong policy consideration underlies the general rule, namely that an organisation should not be inhibited from carrying out legitimate investigations and it would be undesirable to paralyse the taking of remedial measures which might thereby be identified. Those considerations would seem to apply in a hospital setting where a psychiatric patient was not admitted to hospital on seeing a psychiatrist before killing his wife the next day.

[33] Accordingly, I have not been persuaded that commission and diligence should be granted for those parts of the specification which remain in contention. I might well have reached a different conclusion if counsel for the pursuer had amended his specification so as to include only the kind of spontaneous reporting by employees to the defenders which falls within the recognised exception. Since he did not do so, and since it would only be fair in the absence of that amendment that the defender should have an opportunity to consider whether voluntary disclosure should be made, the pursuer’s motion for commission and diligence in respect of call 4, and call 5 insofar as it relates to call 4, is refused.

Expenses

[34] I reserve in the meantime all questions of expenses.

D

For the pursuer: Davidson, instructed by Thorntons Law LLP, Solicitors, Edinburgh.

For the respondent: Pugh, instructed by NHS Scotland, Central Legal Office, Edinburgh.

E

F

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A COURT OF SESSION

19 May 2016

Inner House (Extra Division) Lord Bracadale, Lord Malcolm and Lord Doherty PROFESSIONAL STANDARDS AUTHORITY FOR HEALTH AND SOCIAL CARE

Appellant

B

against GENERAL DENTAL COUNCIL

First Respondent

ST

Second Respondent

Dentist—Professional misconduct—Fitness to practise impaired by misconduct including conduct of a sexual nature—Whether underprosecuted—Whether sanction too lenient—Whether conditions imposed adequate—Whether reasons adequate—National Health Service Reform and Health Care Professions Act 2002 (c.17), s.29 At the relevant date s.29 of the National Health Service Reform and Health Care Professions Act 2002 provided, inter alia: “(1) This section applies to— ... (e) a direction by . . . the Health Committee of the General Dental Council under any of sections 27B, 27C, 36P or 36Q of the Dentists Act 1984 following a determination that a person’s fitness to practice as a dentist . . . is impaired, ...

(2) This section also applies to— (a) a final decision of the relevant committee not to take any disciplinary measure under the provision referred to in whichever of paragraphs (a) to (h) of subsection (1) applies, ...

(3) The things to which this section applies are referred to below as ‘relevant decisions’.

(4) If the Authority considers that— (a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such finding), or as to any penalty imposed, or both, or (b) a relevant decision falling within subsection (2) should not have been made, and that it would be desirable for the protection of members of the public for the Authority to take action under this section, the Authority may refer the case to the relevant court.

(5) In subsection (4) (subject to subsection (5A)), the ‘relevant court’— (a) in the case of a person who (in accordance with the rules applying to the body, making the relevant decision) was, or was required to be, notified of the relevant decision at an address in Scotland, means the Court of Session,

C

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...

(7) if the Authority does so refer the case— (a) the case is to be treated by the court to which it has been referred as an appeal by the Authority against the relevant decision (even though the Authority was not a party to the proceedings, resulting in the relevant decision), and (b) the body which made the relevant decision is to be a respondent.

(8) The court may— (a) dismiss the appeal, (b) allow the appeal and quash the relevant decision, (c) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or (d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court, and may make such order as to costs (or, in Scotland, expenses) as it thinks fit.”

The second respondent was a registered dentist who qualified in 2005. Because of misconduct he was found unfit to practise and the committee directed that for a period of 12 months his registration should be conditional on compliance with certain conditions. The Professional Standards Authority for Health and Social Care (PSA) referred the decision of the committee to the court on the basis that the decision was unduly lenient and that it would be desirable for the protection of members of the public for the authority to take action. It argued that the case had been under-prosecuted; the sanction imposed was unduly lenient; the conditions of the conditions of practise order were not appropriate to the level of misconduct; and the reasons given by the committee were not adequate. The charges which were brought against the second respondent included charges of sexual harassment of colleagues and the consumption of codeine linctus during working hours. These charges were admitted.

The committee found that the second respondent’s fitness to practise was impaired by reason of his misconduct. It suggested that the issues identified were more difficult to remedy than clinical deficiencies. There was concern about the level of insight which the second respondent demonstrated with regard to the impact of his behaviour on his colleagues, as well as any potential detrimental effect on patients. However, they identified a number of mitigating factors as well as a number of aggravating factors. Having balanced these factors, the committee came to the conclusion that it would be disproportionate to impose a period of suspension and considered that the public would be suitably protected and the public interest upheld through the imposition of conditions of practise. In addition, it considered that suspension would not enable the second respondent to address the issues which the committee had identified.

Counsel for the appellant first considered whether the PSA had power to refer the case of under-prosecution. He argued that it did have such a power on the basis that the charges did not reflect the gravity of the allegations. The charges should have contained the further particulars in relation to the conduct complained of and an allegation of sexual motivation. He argued that s.29(4) was not confined to sanction; it was directed at a decision. It referred to findings of professional misconduct or fitness to practice or lack of such findings.

In relation to the sanction counsel argued that the result was manifestly inappropriate and the committee had placed insufficient weight on the aggravating factors.

Counsel for the first respondent argued that it was not open to the PSA to refer a case of under-prosecution. Its power to refer was limited to sanction.

Section 29(4) required a consideration of a “relevant decision”. There required

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to be a decision in circumstances in which there had been a finding of impairment and the committee had made a direction or had declined to make a direction but it was not open to the PSA to refer to the court a case in which no finding of misconduct had been made. The power to refer was restricted to sanction. The PSA could not refer a case of under-prosecution.

Counsel for the second respondent submitted that various matters, including all the more serious allegations had been canvassed in the opening submissions of the GDC. The charges had been admitted. The second respondent had been cross-examined without objection in relation to the details and the charges expressly included sexual motivation.

In relation to sanction, counsel submitted that, as all the relevant material was before the committee the court should give due respect to the decision of the committee. It had taken a discriminating approach to the question of insight and its reasons for rejecting suspension and imposing the conditions of practice order was not open to criticism.

Held (1) that a case for allowing an appeal on the ground of underprosecution had not been established and each of the three cases of underprosecution referred to by counsel was readily distinguishable from the case of the second respondent (para.30); and (2) that the sanction imposed by the committee could not be said to be unduly lenient (para.47); and appeal dismissed.

Opinion reserved as to whether s.29 empowered the PSA to refer a case to the court on the ground of under-prosecution.

Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo [2005] 1 WLR 717; R (Council for the Regulation of Health Care Professionals v General Medical Council and Dr Mahesh Rajeshwar [2005] EWHC 2973 (Admin); and R (Council for the Regulation of Health Care Professionals v Nursing and Midwifery Council [2007] EWHC 1806 (Admin) 98 BMLR 60 distinguished.

A

B

C

D

Cases referred to: Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo [2005] 1 W.L.R. 717 R (Council for the Regulation of Health Care Professionals v General Medical Council and Dr Mahesh Rajeshwar [2005] EWHC 2973 (Admin) R (Council for the Regulation of Health Care Professionals v Nursing and Midwifery Council [2007] EWHC 1806 (Admin) 98 B.M.L.R. 60 South Buckinghamshire District Council v Porter (No.2) [2004] UKHL 33; [2004] 1 W.L.R. 1953; [2004] 4 All E.R. 775 Uprichard v Scottish Ministers [2011] CSIH 59; 2012 S.C. 172 Wordie Property Co Ltd v Secretary of State for Scotland, 1984 S.L.T. 345.

E

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 Bracadale on 19 May 2016.

F

LORD BRACADALE Introduction

[1] On 19 May 2016 we dismissed this appeal, stating that we would give reasons in writing later, which we now do.

[2] The second respondent (the registrant) is a registered dentist who qualified in 2005. In early 2014 he took up a position in a practice in a Scottish town. As a result of certain events which occurred shortly thereafter, disciplinary proceedings were brought against him by the first respondent, the

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General Dental Council (the GDC). Issues of health and/or misconduct were raised. On 16 September 2015, after a hearing, the Health Committee of the GDC (the committee) found that while the registrant’s fitness to practise was not impaired by reason of health, his fitness to practise was impaired by reason of misconduct. The committee directed in terms of s.27B of the Dentists Act 1984 that for a period of 12 months his registration should [be] conditional on compliance with certain conditions (a conditions of practice order).

[3] The appellant is the Professional Standards Authority for Health and Social Care (the PSA). It derives its functions and powers from the provisions of the National Health Service Reform and Health Care Professions Act 2002 (the 2002 Act). The PSA has a number of functions in relation to the performance by the professional regulatory bodies, including the GDC, of their functions. In exercising its functions the PSA is to promote the health, safety and wellbeing of members of the public (s.25(2A) of the 2002 Act).

Among the powers of the PSA is the power provided in s.29 of the 2002 Act to refer disciplinary cases to the court. In the exercise of that power the PSA referred the decision of the committee to this court on the basis that the decision was unduly lenient and that it would be desirable for the protection of members of the public for the authority to take action.

[4] There are four grounds of appeal: the case had been under-prosecuted; the sanction imposed was unduly lenient; the conditions of the conditions of practice order were not appropriate to the level of misconduct; and the reasons given by the committee were not adequate.

[5] On behalf of the PSA, Mr Johnston QC moved the court in terms of s.29(8) of the 2002 Act to allow the appeal, quash the relevant decision and remit the case to a differently constituted committee with appropriate directions.

D Section 29 of the 2002 Act

E

F

[6] At the date the PSA referred this appeal to the court, s.29 of the 2002 Act provided: [His Lordship quoted the section as set out above and continued:] [7] There is a tension between subs.(4) and subs.(1)(e) read with subsection (3). Subs.(1) applies to “a direction” by the committee “following a determination that a person’s fitness to practise as a dentist is impaired”. In terms of subs.(3) such a direction is a “relevant decision”. Subs.(4) contemplates the situation in which the PSA considers that a relevant decision falling within subs.(1) was unduly lenient. The reference in subs.(1)(e) to “a direction following a determination that a person’s fitness to practise as a dentist is impaired” does not sit easily with the full terms of subs.(4), namely, that the authority considers that the relevant decision has been unduly lenient, “whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both”. It was with the difficulty of construction arising from that tension that the Court of Appeal wrestled in Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo, which featured in the discussion before us.

Proceedings before the committee

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[8] The committee considered the case in terms of s.27B of the Dentists Act 1984. The charges which brought the registrant before the committee were in the following terms: “That being a registered dentist— 1. You suffer from the health condition as set out in the addendum schedule 1.

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2. Whilst working at the . . . Dental Practice (‘the practice’) between February and April 2014 you behaved inappropriately towards colleague A in that you— a. told her you would like to try hard drugs; b. indicated you would send material of a sexual nature to her mobile phone; c. engaged her in conversation of a sexual nature; d. suggested that you wanted to look down her top; e. told her you were going to touch her.

3. In the same period and whilst working at the practice you behaved inappropriately towards colleague B in that you remarked that if you saw her getting changed you would take photographs of her and put them on the internet.

4. In the same period you— a. ordered deliveries of codeine linctus to the practice for your personal consumption; b. consumed codeine linctus at the practice during working hours and whilst you were at work.

A

B

C

AND in relation to the matter set out at paragraph 1 your fitness to practise is impaired by reason of your adverse physical or mental health; AND/OR in relation to the matters set out at paragraph 2, 3 and 4 your fitness to practise is impaired by reason of your misconduct.”

[9] At the outset of the hearing counsel for the registrant advised the committee that all of the heads of charge were admitted.

[10] In his opening statement counsel for the GDC provided the committee with the following narrative of the facts in the case: “Charge (2) concern (the registrant’s) dealings with a 19-year-old (as she then was) dental nurse who was assigned to him. That person is colleague A. Charge (3) concerns his dealings with a fellow dentist, Colleague B, and by way of summary his behaviour towards both of those colleagues was, the GDC submit, wholly inappropriate and in large part sexually motivated.

“Colleague A, a female dental nurse who, as I say, at the time of these allegations was a young lady who had only been qualified for two months, was assigned to work in the registrant’s surgery. When the registrant began behaving inappropriately towards her she in fact turned to her father for some advice who told her to keep a diary of the registrant’s behaviour and so it happens that there is a contemporaneous record of the sorts of things that he did and said to her. For the committee’s reference, that record is reproduced in the hard copy bundle at pp.47 through to 62. They are also set out in colleague A’s statement and that appears in the bundle at p.41.

“Charges (2)(a)–(e) are illustrative of the catalogue of his misconduct and they include the following: (the registrant) told her that he would like to try hard drugs but did not know where to find them; he told her that she was the only exception to the fact that there were no good-looking people in (the town); and he asked for her mobile phone number so that he could send her dirty pictures. It is perhaps significant to know that colleague A later said that she simply did not know how to respond because of her inexperience and also because she was aware that (the registrant) was buying the practice and would therefore subsequently be her direct employer. He told her the same day that the two of them should go on a night out together because he was ‘anyone’s’ after two glasses of wine.

“He told her on an occasion that he could look down her top. He asked her if she knew any prostitutes in (the town) as his business partner liked to sample them. On another occasion he reached behind colleague A, touched

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her back and asked her what colour bra she was wearing. He told her he was ‘a dirty fucker’ and on that same day caused her to back into a corner of his surgery and told her he was going to ‘shove a can of alginate adhesive up her backside’.

“He told her he was going to touch her and he made a lewd reference to a 14-year-old female patient and when colleague A pulled him up on it he said, ‘If the grass is grown it’s time to play ball.’

“After about six weeks colleague A it seems plucked up enough courage to discuss his behaviour with him but when she told him about her concerns, that he made her feel uncomfortable, he said that she should have said something and that in his last practice there was a 19-year-old girl who felt uncomfortable and there were repercussions, which colleague A took to be vaguely threatening. Meanwhile, the registrant was also sending colleague A a number of text messages outside . . . working hours and it follows, I hope, that the matters I have just recited all occurred within working hours at the time that he was working in the surgery with colleague A. Those text messages appear in the committee’s bundle between pp.62 and 84 and I do not go through them in any detail. They simply illustrate the sort of contact which was wholly unwanted and unwarranted between the registrant and colleague A. “Towards the end of March the practice manager, whose statement appears at p.9 (and if I may in fact add to the identification key, the author of that statement at p.9, please, can be colleague C) became aware of what had been going on. She spoke with colleague A and it transpired from that conversation that the registrant had also been behaving inappropriately to other members of staff, notably colleague B. Colleague B’s statement appears at p.83 of the bundle.

“By way of background, at the . . . practice it was well established that the office was used by some of the staff members to get changed and it was understood by all that one knocked on the door before entering in case someone was getting changed.

“Colleague B was able to recall that on one occasion whilst the registrant was working at the practice she went to the office to get changed. She understood that one of the other dentists was in the office and she asked him, presumably through the closed door, if he was decent and the registrant, who was plainly nearby, told her that the other dentist was not and that she should wait. Whilst colleague B was waiting the registrant told her that he grew up with lots of women and that he would not bat an eyelid if he walked in on her changing. She replied in terms that she would mind a great deal and he then told her that he would take photographs of her and put them on the internet; he also suggested that he would sell them. That gives rise to charge (3).”

[11] The evidence in support of the charges included two expert medical reports, written statements from four witnesses and associated exhibits. The committee recorded that the evidence before it was agreed by both parties and accepted by the committee. The committee noted the opening made by counsel on behalf of the GDC and the admission made to all heads of charge by counsel for the registrant. The committee found each of the charges admitted and proved.

[12] In making a finding of misconduct the committee made the following statement: “The committee considered that acting in the manner that it has already found proved, you placed colleague A in a compromising position and breached her trust. You were in a position of trust and authority and your actions breached the boundaries of professionalism. The committee further considered that the comments made to colleague B were unacceptable and

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inappropriate. The nature of the comments made to both colleague A and colleague B were of a sexual nature and the comments made to colleague A were particularly explicit in their nature. You accepted that your behaviour towards both colleagues was ‘abhorrent’. This was a significant departure from the standards expected of a registered dental practitioner.”

[13] The committee went on to find that the registrant’s fitness to practise was currently impaired by reason of his misconduct. While recognising that the misconduct was remediable, the committee noted that the issues identified were more difficult to remedy than clinical deficiencies. The committee had concerns about the level of insight which the registrant demonstrated with regard to the impact of his behaviour on his colleagues as well as any potential detrimental effect on patients. While appreciating that by the time of the hearing the registrant might have gained an awareness of these issues, the committee considered that he did not have full insight.

[14] The committee considered that the steps which the registrant had taken to address his misconduct were still in the early stages and had not at that stage remedied the behaviour to a sufficient extent that the risk of repetition was removed. The committee noted that the misconduct was not a single isolated incident but rather a course of conduct. The committee considered that the misconduct by violating colleague A’s personal boundaries and her trust and by the comments made to colleague B the registrant had breached fundamental tenets of the profession and had brought the profession into disrepute.

[15] In coming to its decision on sanction the committee recognised that the purpose of a sanction was not to be punitive, although it might have that effect, but rather to protect patients and the wider public interest. The committee took into account the GDC’s Guidance for the Professional Conduct Committee. The committee applied the principle of proportionality, balancing the public interest with the interests of the registrant. Using the lists set out in paras 5.17 and 5.18 of the guidance the committee identified the mitigating and aggravating factors which they considered to be present in the case of the registrant. They identified the mitigating factors as: • evidence of the circumstances leading up to the incident in question; • evidence of the good conduct following the incident in question, particularly any remedial action; • evidence of some remorse shown; • evidence of steps taken to avoid a repetition; • time elapsed since the incident.

A

B

C

D

E

They identified the aggravating factors as: • • • • • • •

actual harm or risk of harm to a patient or another; premeditated misconduct; breach of trust; the involvement of a vulnerable individual; misconduct sustained repeated over a period of time; attempts to cover up the wrongdoing; lack of insight.

F

In addition, the committee considered that the consumption of benzodiazepine by the registrant was an aggravating factor.

5467.indd 191

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192 A

B

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2017 S.C.L.R.

[16] The committee then considered the range of sanctions available to it and came to focus in particular on a choice between the imposition of a period of conditional registration and a suspension order. The committee had regard to the seriousness of imposing a period of suspension and the steps that the registrant had taken so far to remediate the misconduct. It came to the conclusion that in all the circumstances of the case and taking into account all the evidence adduced, it would be disproportionate to impose a period of suspension. The committee considered that the public would be suitably protected and the public interest upheld through the imposition of conditions of practice. In addition it considered that suspension would not enable the registrant to address the issues which the committee had identified.

Ground of appeal 1: under-prosecution

C

[17] In support of this ground of appeal Mr Johnston first explored the question whether within the scheme of s.29 of the 2002 Act the PSA had power to refer a case of under-prosecution. He submitted that the PSA did have power to refer a case on the basis that the charges did not reflect the gravity of the allegations. Secondly, in the registrant’s case that power had been properly exercised and the court should find that the charges should have contained: (a) further particulars in relation to the conduct complained of; and (b) an allegation of sexual motivation.

The extent of the power to refer to the court PSA

D

E

F

G

5467.indd 192

[18] Mr Johnston relied on the judgment of the Court of Appeal in Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo as highly persuasive authority that it was open to the PSA to refer to the court a case of under-prosecution. In addition, he relied on two subsequent cases (R (Council for the Regulation of Health Care Professionals) v General Medical Council and Dr Mahesh Rajeshwar and R (Council for the Regulation of Health Care Professionals) v Nursing and Midwifery Council) in which the decision in Ruscillo was followed in the administrative court.

[19] At paras 80–82 of the judgment in Ruscillo the court stated: “80. . . . The disciplinary tribunal should play a more proactive role than a judge presiding over a criminal trial in making sure that the case is properly presented and that the relevant evidence is placed before it.

81. If, as in the case of Dr Ruscillo, the council is led to believe that a case has been ‘under-prosecuted’ or that relevant evidence has not been put before the tribunal with the consequence that the tribunal’s decision is flawed, the council should, in the first instance, make inquiries of the relevant healthcare regulatory body as to what occurred. The GMC accepts that where such inquiries are made in such circumstances it is right that the body in question should cooperate with the council and make available any material that was not before the disciplinary tribunal. The GMC expresses concern, however, that such material should not be placed in the public domain without careful consideration being given to all the consequences of this course. We share this concern. Complainants are often reluctant to undergo the publicity attendant on providing evidence in disciplinary proceedings. In such circumstances, careful arrangements are often reached between those acting for the parties designed to avoid witnesses being exposed to publicity or having to undergo the stress of giving evidence. Such arrangements should not be disturbed without good reason.

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82. At the same time there will be cases where it is in the public interest that additional evidence should be placed before the court on a reference under s.29. This may be necessary to ensure that a practitioner does not escape the sanctions that his conduct has made essential if patients are not to be exposed to risk.”

[20] Subs.29(4) was not confined to sanction; it was directed at a decision. It referred to findings of professional misconduct or fitness to practise, or lack of such findings. These fell within the scope of what the PSA might consider in deciding whether to refer a case to the court. This court should adopt the construction of s.29(4)(a) set out in para.67 of Ruscillo: “If the council considers that— (a) a relevant decision falling within subsection (1) has been unduly lenient, whether because the findings of professional misconduct are inadequate, or because the penalty does not adequately reflect the findings of professional misconduct that have been made, or both. . . .”

The court held that that reading of the subsection accorded with the scheme of s.29 and was not in conflict with its language.

[21] Mr Johnston submitted that the width of that approach was consistent with the overriding purpose of Pt.2 of the Act which dealt with the duty of the PSA to promote the interests of users of healthcare and other members of the public.

[22] The second aspect of the s.29(4) test was whether the PSA considered it was desirable to make the reference for the protection of the public.

B

C

D

GDC

[23] Mr Dunlop QC on behalf of the GDC submitted that it was not open to the PSA to refer a case of under-prosecution. Its power to refer was limited to sanction. Section 29(4) required consideration of a “relevant decision”. In terms of subs.(3) the things to which s.29 applied were referred to “below” as “relevant decisions”. “Below” included subs.(4). In terms of subs.(1)(e) s.29 applied to a “direction of the health committee of the GDC under any of ss.27B, 27C, 36P or 36Q of the Dentists Act 1984 following a determination that a person’s fitness to practise as a dentist . . . is impaired”. It was therefore an essential requirement of the power to refer the case in terms of subs.(4) that there had been a finding of impairment. There required to be a decision in circumstances in which there had been a finding of impairment and the committee had made a direction or had declined to make a direction (subss.(1)(e) and (2)(a)). It was not open to the PSA to refer to the court a case in which no finding of misconduct had been made. The power to refer was restricted to sanction. The PSA could not refer a case of under-prosecution.

[24] Mr Dunlop further submitted that there was no reference in s.29(1)(e) to ss.27 or 27A of the Dentists Act 1984; the reference was to a direction made under ss.27B or 27C. Subsection 27 and 27A provided for action in response to an allegation by the registrar who was required to refer the allegation to the investigating committee which was then to investigate the allegation and determine whether it ought to be considered by a practice committee. It was the registrar and the investigating committee which decided to prosecute. Because the duties of these bodies under s.27 and s.27A did not come within the purview of the PSA, it was not open to the PSA to complain

5467.indd 193

A

E

F

G

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194 A

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2017 S.C.L.R.

about what the registrar or the investigating committee did. Section 27B made provision for the duties of the practice committees; only the duties of the practice committees were open to consideration by the PSA. Reply by PSA

B

C

D

[25] In reply Mr Johnston submitted that the contention that there was a requirement for a finding of impairment in order to operate subs.(4)(a) was not consistent with the wording of that subsection which in terms contemplated the making of no such finding. If there required to be a finding of impairment the PSA would be unable to refer to the court a case in which there was no such finding, that would create a serious gap in the protection which the statute afforded to the public. The argument had been rejected in Ruscillo at paras 44–46. There the Court of Appeal had observed that the submission that the scheme of s.29 was one of which permitted an appeal only against the sentencing exercise involved in disciplinary proceedings but not against a finding of whether professional misconduct had been established created a problem in respect that the mischief against which s.29 was aimed occurred just as much where a disciplinary tribunal wrongly concluded that conduct did not amount to professional misconduct as where the tribunal imposed too lenient a penalty. In addition, s.29(4)(a) made express provision for the PSA to have regard to the lack of a finding of professional misconduct when considering whether a decision which fell within subs.(1) had been unduly lenient. Recognising that s.29(4)(a) raised problems of construction, the court noted that it was quite clear that in some circumstances a failure to find professional misconduct where professional misconduct should have been found was a relevant consideration in deciding whether a reference should be made to the High Court. It would be anomalous if, under s.29(4), no regard could be had to an erroneous failure to find professional misconduct.

Was there under-prosecution in this case?

PSA

E

F

[26] In submitting that in the present case there had been under-prosecution, Mr Johnston advanced two propositions. First, the charges had failed to specify matters which ought to have been included. The details of the registrant’s conduct towards each of colleagues A and B had not been fully specified. Conduct towards a third female colleague had formed no part of the charges and no evidence in relation to it had been before the committee. Had these matters been the subject of specific charges before the committee and they had been found to have been proved the committee would have been obliged to have specific regard to the terms of the charges when considering sanction. Secondly, sexual motivation ought to have been specifically alleged.

Motivation should have been specifically included in the charge if it was to be relied on against the registrant. Sexual misconduct was to be viewed seriously and should have been included in the charge.

GDC

G

5467.indd 194

[27] Mr Dunlop submitted that the committee had said in terms that it considered all of the evidence agreed by both parties. This was not a case where an allegation had not been put before the committee. All the evidence that was available had been put before the committee; it had been agreed and had been taken into account by the committee.

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Professional Standards Authority v General Dental (IH) 195 A

The registrant

[28] Mr Duncan QC on behalf of the registrant submitted that various matters, including all of the more serious allegations, had been canvassed in the opening submissions of the GDC. The charges had been admitted.

The registrant was cross-examined without objection in relation to the details.

The charges expressly included sexual motivation. Submissions made by counsel before the committee, but not accepted by the committee, should not be relied on.

B

Discussion and decision on under-prosecution

[29] The charges, which we have set out above, were clear and succinct. They were supported by the statements lodged. At the outset of the hearing counsel for the registrant advised the committee that all the heads of charge were admitted. Counsel for the GDC then in the course of his opening submission gave the committee a full narrative of the facts supporting the charges. At a later stage the registrant himself gave evidence in which he accepted that his conduct had been wholly inappropriate and that his comments were of a sexual nature. The committee stated that it fully considered all the evidence before it. Having done so the committee made the statement quoted above in which it found the following proved: the registrant had placed colleague A in a compromising position and breached her trust; the comments made to colleague B were unacceptable and inappropriate; the nature of the comments made to both colleagues were of a sexual nature and the comments made to colleague A were particularly explicit in their nature; the registrant had accepted that his behaviour towards both colleagues had been “abhorrent”.

There is no indication in the determination that the committee accepted the submission of counsel for the registrant that sexual attraction motivation had not been squarely placed in the charges. On the contrary, it is perfectly clear from the findings that it accepted that there was sexual motivation.

[30] We are also satisfied that the committee: (i) had before it, and took account of, all the material evidence concerning the registrant’s conduct towards colleagues A and B; and (ii) proceeded on the basis that the registrant’s conduct towards those colleagues was sexually motivated in respect of charges (2)(b)–(e) and 3. We accept that the committee did not have before it any allegation or evidence relating to alleged conduct of the registrant towards a third female colleague. However, having seen the terms of that allegation we are content that even if that conduct had been charged and proved it is very unlikely to have made any material difference to the committee’s approach towards the registrant or to its disposal of the case. It follows that, on the facts, the case for allowing an appeal on the ground of under-prosecution has not been established. We are satisfied that each of the three cases of underprosecution to which Mr Johnston referred us is readily distinguishable from the registrant’s case.

[31] Since there has not been under-prosecution it is not necessary to decide whether s.29 empowers the PSA to refer a case to the court on that ground. None the less, we have considered carefully whether we should express a view on the point. For the following reasons we have decided that it is not appropriate to do so. First, we are very conscious that the construction of s.29 is not free from difficulty: that much is evident to us from the language of the section; from the judgment of the Court of Appeal in Ruscillo; and from the submissions which we heard. Since any opinion we expressed would be obiter, we are hesitant to venture a view upon the construction of a provision of a UK statute which has recently been construed by the Court of Appeal of

5467.indd 195

C

D

E

F

G

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196 A

B

Professional Standards Authority v General Dental (IH)

2017 S.C.L.R.

England and Wales with the benefit of extensive argument. Second, we are not persuaded that there is any pressing need for us to provide such guidance.

S.29 has been the subject of amendment: with effect from 31 December 2015, subject to transitional provisions, the version of subs.(4) in force in respect of this appeal has been replaced by new subsections 29(4) and (4A) (substituted

by General Medical Council (Fitness to Practise and Over-arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order SI 2015/794, Part 2, art.18(3)). Any future cases are likely to be brought under the new provisions. In the whole circumstances we prefer to reserve our opinion on the construction issue until an occasion arises where its resolution is required for the disposal of an appeal.

Ground of appeal 2: sanction Submissions PSA

C

D

[32] Mr Johnston submitted that the conditions imposed by the committee did not address the risk to public protection presented by the registrant’s conduct: the committee had had reservations as to the level of the registrant’s insight; there was continuing concern as to the possibility of repetition; there had been risk to patients; there had been a breach of trust; and the registrant had brought the profession into disrepute.

[33] In the light of these considerations suspension was the appropriate sanction and the reasons given by the committee for rejecting it were unsound.

An impartial observer could not be confident that the committee had properly taken into account the public interest and the reputation of the profession.

The committee had placed insufficient weight on the aggravating factors. The result was a manifestly inappropriate outcome.

GDC

[34] Mr Dunlop supported the submission that the sanction was unduly lenient.

E

The registrant

[35] Mr Duncan submitted that as all the relevant material was before the committee the court should give due respect to the decision of the committee.

The committee had been thorough in its analysis. It had taken a discriminating approach to the question of insight. It had carefully considered the question of suspension. Its reasons for rejecting suspension and imposing the conditions of practice order were not open to criticism.

Discussion and decision on sanction

F

G

5467.indd 196

[36] The task of the committee was to impose a penalty which was appropriate having regard to the safety of the public and the reputation of the profession (Ruscillo, para.73). Parties were agreed that in coming to a conclusion as to whether the sanction was unduly lenient the test to be applied was whether the committee had reached a decision as to penalty that was manifestly inappropriate having regard to the practitioner’s conduct and the interests of the public (Ruscillo, para.77).

[37] In making a finding of impairment of fitness to practise the committee bore in mind that its primary function was not only to protect patients but also to take account of the wider public interest, which included maintaining

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confidence in the dental profession and the GDC as a regulator, and upholding proper standards and behaviour. In its analysis of the various factors pointing towards impairment of fitness to practise it is clear that the committee considered remediation to be an important consideration. It concluded that in the case of the registrant remediation was an ongoing process. While the misconduct was remediable, the nature of the issues involved made them more difficult to remedy than clinical deficiencies. While insight was developing, the committee considered that at the time of the hearing the registrant did not have full insight. The steps which he had taken to address his misconduct were still in the early stages. As at the date of the hearing, there had not been sufficient remediation to remove the risk of repetition. This reflects a cautious approach on the part of the committee. When it came to consider sanction the committee revisited the ongoing process of remediation.

It is in this context that the statement of the committee that suspension would not enable the registrant to address the issues identified by the committee should be understood.

[38] In setting the period of the order at 12 months the committee again stressed the importance of continuing remediation: “The committee is of the view that 12 months would allow you time to address the areas identified as being deficient and provide the required information to the GDC. . . . The committee recognised the steps that you have taken to address your health and misconduct. The committee was encouraged by the foundation for your remediation of the misconduct and considered that any future reviewing committee would be a assisted by evidence of your continuing with all these steps.”

A

The committee went on to indicate that it would hold a review before the end of the period of the order to see how well the registrant had complied with it and at that stage would consider what further steps the registrant had taken to remediate his conduct. At that stage various disposals, including the making of a new order, would be available to the reviewing committee. As Lord Malcolm commented in the course of the hearing, the committee was effectively placing the registrant on probation.

[39] The committee considered the question of suspension, as it would have been bound to do, given the nature of the misconduct and its finding that the registrant had brought profession into disrepute. The committee made a judgment that it would be disproportionate to impose a period of suspension and that the public would be suitably protected and the public interest upheld through the imposition of conditions of practice.

[40] We reject the assertion that that judgment resulted in a manifestly inappropriate outcome. We consider that it is appropriate to show respect to the expertise of the committee as a professional decision-making body. In our opinion all relevant material was before the committee and that it gave due consideration to the relevant factors. We agree with the observation at para.78 of Ruscillo: “Where all material evidence has been placed before the disciplinary tribunal and it has given due consideration to the relevant factors, the council and the court should place weight on the expertise brought to bear in evaluating how best the needs of the public and the profession should be protected.”

D

We were advised that the lay chair was highly experienced and that both the dentist member and the dental nurse member were very experienced members of standing in their professions.

5467.indd 197

B

C

E

F

G

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198 A

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2017 S.C.L.R.

[47] In our view the sanction imposed by the committee cannot be said to be unduly lenient.

Ground of appeal 3: the conditions were not appropriate to the level of misconduct

B

C

[41] We can deal briefly with the question as to whether the conditions were adequate; there was little discussion of the matter before us. Mr Johnston submitted that the conditions of practice imposed on the registrant, most of which related to the provision of information, were not adequate to address the failures on the part of the registrant and the issues of public protection.

[42] Mr Duncan submitted that the conditions were adequate to monitor the progress of the registrant. They provided a list of requirements which the registrant would require to meet if he was employed as a dentist.The committee would have the opportunity of reviewing progress and could modify the conditions as it thought appropriate.

[43] In our opinion the conditions were appropriate to provide monitoring of the registrant by the GDC; they included a requirement to continue his remediation through a personal development plan; the progress of the personal development plan would be monitored; when working the registrant required to be under supervision. The conditions were subject to review. In our view this ground of appeal is not well founded.

Ground of appeal 4: inadequacy of reasons

D

E

[44] Again, we can deal with this ground of appeal briefly. Mr Johnston submitted that the reasons given by the committee were inadequate. It failed to explain how the imposition of conditions of practice would satisfy the needs to ameliorate risks to patients and colleagues and to preserve the public interest were inadequate.

[45] Mr Duncan submitted that the decision of the committee was set out in considerable detail and with conspicuous care. There had been no requirement for the committee to go any farther than it did in explaining its reasoning.

[46] In our view the committee carried out a careful analysis at each stage of the process. We are satisfied that when the decision of the committee is read as a whole the informed reader would be in no real or substantial doubt as to the reasons for the committee’s decision (South Bucks District Council v Porter; Uprichard v Scottish Ministers, LJC (Gill) at para.26; Wordie Property Co Ltd v Secretary of State for Scotland, LP (Emslie) at p.348). We are also satisfied that the committee’s reasons were adequate. This ground of appeal is not well founded.

Disposal

F

[47] For all these reasons, in terms of s.29(8)(a) of the 2002 Act we dismissed the appeal. We reserved the question of expenses.

For the appellant: Johnson QC, O’Neill, Solicitor advocate instructed by Brodies LLP, Solicitors, Edinburgh.

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

For the second respondent: Duncan QC, instructed by Clyde & Co LLP, Solicitors, Edinburgh.

G

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A COURT OF SESSION

13 July 2016

Inner House (Second Division) Lord Justice Clerk (Dorrian), Lord Malcolm and Lord McGhie DOONEEN LTD (trading as McGinnes Associates)

B

DOUGLAS DAVIDSON

Pursuers (Reclaimers)

against DAVID EMANUEL MERTON MOND

Defender (Respondent)

Bankruptcy—Trust deed for creditors—Trustee making final distribution—Thereafter pursuer settling PPI compensation claim— Trustee unaware of claim—Whether final distribution ended trust The trustee in a trust deed for creditors made a final distribution of 22.41p in the pound on 5 November 2010. In January 2015 the second pursuer appointed the first pursuer as his agent to pursue a claim for mis-selling of PPI. Compensation was paid in April 2015. When he made the distribution, the trustee was unaware of the claim, but it was agreed by parties that it formed part of the estate which vested in the trustee under the deed. The sole question was whether the Lord Ordinary was correct to find that, in terms of the trust deed, the making by the trustee of a distribution to creditors brought the trust to an end, with the result that neither the trustee nor the creditors had any claim on the compensation.

The trust deed, in cl.11, provided that it should terminate on “(ii) The final distribution of my estate (which for the avoidance of doubt shall include a nil distribution) by my trustee in accordance with this trust deed.”

Counsel for the reclaimers argued that the Lord Ordinary was wrong. A distribution could only be ‘final’ for the purposes of the trust deed if all the estate vested in the trustee had been applied to payment of the debts. A distribution could not be final where, unknown to the trustee, part of the estate had not been taken into account. What was a “final distribution of my estate in accordance with this trust deed” required to be determined as a matter of fact rather than according to how the trustee might as in the instant case, mistakenly, characterise it.

Counsel for the respondent submitted that the clear purpose of cl.11 was to escape the effect of the common law and the imposition of a potentially indeterminate duration of the trust until creditors had received a full dividend.

A construction giving effect to that purpose should be adopted. The construction suggested by the respondent had the advantage of making it clear that the trust had terminated.

Held that on a proper construction of the deed a “final dividend” meant a dividend declared to be such by the trustee—not one carried out when all the available assets had been distributed to the trustees and the “final distribution” of the estate referred to in cl.11(ii) was at the hands of and for the decision of the trustee and the discharge in the instant case had the same effect, terminating the trust and reinvesting the truster in any unrealised estate, which included the PPI payment (paras 17, 18); and reclaiming motion refused.

C

D

E

F

G 199

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200 A

Dooneen Ltd t/a McGinnes Associates v Mond (IH)

2017 S.C.L.R.

Cases referred to: Flett v Mustard, 1936 S.C. 269; 1936 S.L.T. 345 Kinmond, Luke & Co v James Finlay & Co (1904) 6 F. 564 Whyte v Knox (1858) 20 D. 970 Whyte v Northern Heritable Securities (1891) 18 R. (H.L.) 37.

B

C

D

E

F

G

5467.indd 200

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 extempore by the Lord Justice Clerk on 13 July 2016.

LORD JUSTICE CLERK [1] On 29 September 2006, the second pursuer granted a trust deed for creditors. The defender is the trustee thereunder. The trustee made what he referred to as a “final distribution” of 22.41p in the pound, on 5 November 2010. In January 2015 the second pursuer appointed the first pursuer as his agent to pursue a claim for mis-selling of PPI. A claim was made, and compensation was paid in April 2015.

[2] When he made the distribution, the trustee was unaware of the claim, but it was agreed by parties that it formed part of the estate which vested in the trustee under the deed. The sole question in this reclaiming motion relates to whether the Lord Ordinary was correct to find that, in terms of the trust deed, the making by the trustee of a distribution to creditors brought the trust to an end, with the result that neither the trustee nor the creditors have any claim on the compensation.

[3] The reclaimers argued that the Lord Ordinary was wrong to do so. A distribution can only be “final” for the purposes of the trust deed if all the estate vested in the trustee has been applied to payment of the debts. This was understood to be the position under statute, and the same should follow under the trust deed. Reference was made to Whyte v Northern Heritable Securities. A distribution cannot be a final one where, unknown to the trustee, part of the estate had not been taken into account.

[4] It was submitted that cl.7 sets out a compulsory order of distribution of the estate, namely expenses of the trustee, payment of creditors, and finally, but only after making payment to the trustee and creditors, reconveyance to the debtor of such estate as the trustee may not have realised and payment of any surplus to the debtor. Allowing the debtor the benefit of the compensation payment effectively amounts to payment of a surplus. It was submitted that this was contrary to cl.7 where a surplus could only be created after payment of the creditors, and the distribution made in ignorance of the claim could not be a “final” one for the purpose of cl.11. What is a “final distribution of my estate . . . in accordance with this trust deed” requires to be determined as a matter of fact, rather than according to how the trustee may, as in this case, mistakenly, characterise it. The deed should be construed in such a way as to avoid permitting the debtor to enjoy such a windfall when the creditors remained only partly paid. It was unlikely that creditors would have been willing to accede to a deed importing such a construction. If the trust deed were to be interpreted as enabling the trustee to terminate the trust by declaring a final dividend, the effect would be a unilateral abandonment by the trustee, without consulting the creditors, of any unknown assets. The Lord Ordinary was wrong to say that it was a consequence of the reclaimer’s argument that unknown acquirenda might always be capable of realisation and that on this basis the trust might never end. The effect of the reference to

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s.32 as a means to identifying acquirenda, meant that acquirenda forming part of the estate were limited to those obtained between the date of the sequestration and the date of the discharge, if one assumed that the matter had proceeded as a sequestration. On that basis acquirenda would cease to form part of the estate at a date three years from the granting of the deed.

[5] The arguments were developed in a detailed written note of argument, and under reference to the further cases of Flett v Mustard; Kinmond, Luke & Co v James Finlay & Co; and Whyte v Knox.

[6] Mr Howlin stressed the need to pay close regard to the facts in each case. The Kinmond Luke case should be understood in the context of a situation where the asset in question had never vested in the trust, and Whyte v Knox should be understood in the context of an insurance policy which had no value at the time of the discharge. He founded on Whyte v Northern Heritable Securities where the critical question, admittedly in the context of a statutory sequestration under the Bankruptcy Act 1856, was the same as in the present case: namely what was meant by a “final distribution”. The answer, per Lord Watson at p.39, supported his argument. Whatever the actual language used, the respondent’s argument turned on the proposition that the creditors had to be seen to have agreed to abandon a chance to recover £55,000.

[7] For the respondent, counsel submitted that the clear purpose of cl.11 was to escape the effect of the common law and the imposition of a potentially indeterminate duration of the trust until creditors had received a full dividend.

A construction giving effect to this purpose should be adopted. Clause 10 tied the debtor’s discharge to the termination of the trust. Termination is contemporaneous with the complete discharge of the debtor. In terms of the deed, the intention was that assets would continue to vest in the trustee as acquirenda only until termination. An argument that “final distribution” only occurs on the distribution of all assets transferred to the trustee under cl.1, whether or not the debtor or trustee are aware of their existence, leads to a circularity: assets will continue to accrue until termination which can only occur when sufficient acquirenda have followed to allow a full dividend, or until the death of the debtor. It leads to uncertainty, since it can never be known whether a trust has in fact been terminated. It would mean that all dividends declared by the trustee would be interim, and that the terms of cl.7 which grants the trustee power to declare a dividend to be interim or final would be defeated. It was submitted that the respondent’s construction avoids both this circularity and uncertainty, is consistent with the wide powers accorded to the trustee not only in cl.7 but in cls.10 and 12, accords with the purpose of modifying the common law, and is consistent with creditors taking the risk of not obtaining a full dividend. It has the advantage of making it clear that the trust has terminated.

A

B

C

D

E

Analysis

[8] A trust deed for the benefit of creditors sets out the terms on which a debtor proposes that his indebtedness to his creditors be resolved. By acceding to the trust deed the creditors must be taken as agreeing to the terms proposed.

The construction of the deed requires to be premised upon what a reasonable person would have understood the terms of the deed to mean, taking account of the background knowledge which such individuals would have had, and against all the relevant surrounding circumstances, including the ordinary meaning of the words, the purpose of the deed in question and the whole terms thereof. Amongst the specific provisions made in the trust deed with which the court is concerned are provisions relating to the termination of

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the trust. These are the provisions of clauses 10 and 11, from which it may be seem that the termination of the trust is linked to the discharge of the debtor: “Discharge of debts (10) This trust deed is granted by me on condition that the creditors acceding to the trust deed shall discharge me of all my debts due to them on the termination of this trust deed unless: (i) my trustee reports that in his opinion I have not made full and fair surrender of my estate or; (ii) the trust deed terminates on an award of sequestration of my estate being made.

Termination of trust deed (11) This trust deed shall terminate on the earliest of the following events: (i) An award of sequestration of my estate . . . (ii) The final distribution of my estate (which for the avoidance of doubt shall include a nil distribution) by my trustee in accordance with this trust deed. (iii) The acceptance by my creditors of any composition by me.”

At common law a discharge of the debtor does not affect the estate, which continues to be subject to the trust until claims have been settled in full, unless there is composition, abandonment (or presumably a judicial sequestration).

The debtor is thus not discharged, from his obligation to meet the outstanding debts from the trust estate, even if knowledge of the existence of part of the estate comes later, or the estate comes in the form of acquirenda.

[9] The effect of composition however is to grant an absolute discharge to the debtor in return for payment of a proportion of the debts, and thus does have the effect of terminating the trust and removing any remaining estate therefrom as at the date of discharge.

[10] In our opinion the operation of clauses 10 and 11 together are designed to achieve the latter effect, as can be seen for several reasons. First, the wording of cl.10 ex facie clearly contemplates an absolute discharge on termination; second, cl.11 contemplates that full recovery may not have been achieved before termination of the trust deed; and, third, cl.11 places final distribution of the estate, even at nil value, on a par with composition.

[11] The distribution which brings the trust to an end, bringing about the discharge of the debtor is the distribution determined by the trustee under cl.7 to be the final dividend. Clause 7 specifies that: “. . . My trustee shall determine as he thinks fit the time(s) when payment should be made, what notice of payment should be given and whether payment should be made by way of interim or final dividend(s).”

The Lord Ordinary determined that the phrase “final dividend” and the phrase “final distribution” should be read as interchangeable. We agree. The clause itself is introduced with the words, “Distribution of my estate”. In determining whether a dividend should be declared to be a final dividend under the deed, as opposed to an interim one, the trustee may be taken to be aware of the effect of doing so as expressed in other terms of the deed. In particular he must be taken to be aware that in doing so he would be bringing about the termination of the trust, and the discharge of the debtor, unless there has been a surrender report suggesting that there has not been full or fair surrender, or sequestration has intervened. Equally, the creditors would have

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been aware that the effect of such a declaration, even if the dividend was a nil-dividend, would have the effect of terminating the trust.

[12] In the present case we are concerned with the meaning of the language used in the trust deed entered by the debtor. That language must take its meaning from its context. The context is quite different from that of a statutory process which applied in the case of Whyte v Northern Heritable Securities, and which expressly provided that dividends were to be made from time to time “until the whole funds of the bankrupt shall be divided”. The bankrupt was to be discharged “after a final division of the funds”. The dictum of Lord Watson relied on by Mr Howlin was in the following terms:

A

B

“I think the final close of the sequestration contemplated by the statute was the discharge of the trustee after the final distribution—after the whole of the funds vested in him by force of the statute had been applied to their proper purpose, namely, payment of the debts ranked in the sequestration.

When I speak of final distribution, I mean distribution of what were in fact the last funds available for the purpose.”

There can be no doubt that his comments were intended to be a comment on the statutory provisions. He was not attempting to define “final distribution” for all purposes, least of all attempting to construe a modern agreement between debtor and creditors. We cannot accept the proposition that the case was on all fours with the present. A specific difference was that s.132 of the relevant statute expressed matters in impersonal terms. Division was to continue “until the whole funds of the bankrupt shall be divided”. In the deed before us the termination provision was based on a decision by the trustee as to when to pay a final dividend. But it is unnecessary found on specific differences. We are satisfied that the general context of construction of the elaborate provisions of the Bankruptcy Act 1856 was quite different from construction of a trust deed such as this.

[13] The trustee’s discretion to determine whether a dividend should be final is not entirely unfettered, since the trustee acts in a fiduciary capacity in respect of the creditors whose interests he represents, which guards against capricious behaviour on the part of the trustee.

[14] The discharge also sets the date beyond which assets accruing to the debtor can no longer be classified as acquirenda, since the acquirenda which form part of the estate are to be identified by reference to acquirenda which would vest in a permanent trustee under s.32. These are (s.32(10)) assets acquired by the debtor after the date of sequestration (for which read “execution of trust deed”) and up to the effective date of discharge. In our opinion this means the date of discharge under the trust deed, which coincides with termination of the trust. It remains the case therefore that there is uncertainty and circularity inherent in the reclaimer’s argument. We do not accept Mr Howlin’s contention that to determine the date of discharge for this purpose it would be necessary to ask the hypothetical question “what would have been the effective date of discharge had this been a sequestration under the Act”.

[15] Cl.1 simply provides for a means of identifying the estate which is covered by the trust deed. The nature of the property covered by the trust deed includes rights of the kind referred to in s.31(8)(b) (right to take proceedings, etc) and s.32(6)(a) (acquirenda), but it does not follow that the temporal restrictions in relation to such property which apply under the 1985 Act apply equally under the deed. Cl.1 does not specify that the trustee holds the property on the same terms as a trustee under the Act. It does not

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incorporate the provisions of ss.31–33 of the 1985 Act; and it certainly does not incorporate the terms of s.54. Sections 31(8) and 32(10) provide that for the purpose of these sections a “relevant date” is a date between the sequestration and the date upon which discharge becomes effective. Since s.54 is not incorporated, nor is the general scheme of the Act, this cannot mean the period of three years which the reclaimer now suggests. Accordingly, the argument that the reclaimer’s submission might result in a never-ending trust remains valid.

[16] A repeated feature of Mr Howlin’s submission was the proposition that, whatever precise term was used, the respondents’ argument amounted to the proposition that the creditors had agreed to abandon an asset worth £55,000. If the trustee’s decision to make a final payment terminated the trust, this was abandonment by the trustee without authority of the creditors.

In our view it is entirely misleading to view matters in this way. We are concerned with the effect of the agreement at the time it was made or acceded to. Mr Howlin himself made the point that in the normal case there was no problem. In most cases there was no additional asset. What the creditors were agreeing to at the outset was a simplified procedure which would allow them to obtain some payment from the debtor with the minimum of fuss. Properly advised they might have had to weigh up the advantages of simply agreeing to procedure by way of trust deed against the greater protection of formal bankruptcy. They might have been advised of the possibility that by doing so they would lose the chance to claim if any worthwhile asset unknown to the debtor unexpectedly came to light after the trustee had terminated the operation of the trust.

[17] On a proper construction of the deed, therefore, “a final dividend” means a dividend declared to be such by the trustee—not one carried out when all the available assets have been distributed to the trustees. The “final distribution” of the estate referred to in cl.11(ii) is at the hands of and for the decision of the trustee.

[18] This interpretation is necessary because the termination of the trust deed, as we have noted, is tied to, amongst other things, final distribution. The final distribution acts not only as the trigger for a discharge of the debtor by creditors, but, in effect, a composition, whereby the trust deed (the voluntary equivalent of a sequestration) is ended and the debtor is entitled to be re-invested in any remaining trust estate. As was explained in Flett v Mustard (Lord President Normand, p.275): “If abandonment is out of the way, the only other mode by which retrocession can be established, short of full payment of the creditors, is by showing that there was a discharge on composition—Northern Heritable Securities Investment Co., Lord Watson at p.39. There may be a discharge of a debtor under a trust-deed for creditors which does not expressly bear to be a discharge on composition but which is intended to have that effect, and that intention may be found in the terms of the trust-deed and of the discharge. That was the view taken by Lord Trayner (at p.570) in Kinmond, Luke & Co v James Finlay & Co.” In Kinmond, where there was a provision in similar terms to cl.11(ii), Lord Trayner had said (p.570): “Under the trust-deed, to which the pursuers’ creditors acceded, it was made matter of contract that on receiving a final dividend (as declared by the trustee) the pursuers should, ipso facto, stand discharged of all claims ranked on their estate. Such a dividend has been paid and the discharge given. In my opinion, that operated practically as a discharge on a

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composition would have done, and had the effect of reinvesting the pursuers.�

A

The discharge in the present case has the same effect, terminating the trust and reinvesting the truster in any unrealised estate, which includes the PPI payment.

[19] For the reasons which we have given, we will refuse the reclaiming motion and adhere to the opinion of the Lord Ordinary.

For the pursuers and reclaimers: Howlin QC, instructed by Balfour + Manson LLP, Solicitors, Edinburgh.

For the defender and respondent: Bartos, instructed by BTO, Solicitors, Edinburgh.

B

C

D

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A COURT OF SESSION

19 July 2016

Inner House (Extra Division) Lord Menzies, Lord Brodie and Lady Clark of Calton B

JOHN FRASER TAIT

Pursuer (Respondent)

against RGM SOLICITORS (a partnership constituted under the laws of Scotland) ROBERT GORDON MARSHALL SAMUEL HARVEY WADDELL Defenders (Appellants) (two partners of said firm, as such partners and as individuals) C

D

E

F

Contract—Construction of contract—Solicitor’s firm—Share of profits—Net loss—Whether pursuer entitled to fixed sum The pursuer resigned from a partnership as a result of a disagreement about payments due to him in terms of the agreement. He raised an action in the sheriff court in which he sought an account and payment of certain sums from the defenders. They counterclaimed for sums due as a result of an action said to have been conducted negligently by the pursuer and for sums said to be in deficit in his capital account. The sheriff found in favour of the pursuer and assoilzied the pursuer from the craves of the counterclaim after a proof before answer and the defenders appealed to the sheriff principal on the restricted basis of the construction of the partnership agreement. The sheriff principal approved the analysis and approach of the sheriff and the defenders appealed to the Court of Session on the basis that both the sheriff and the sheriff principal had erred in their construction of cl.7.1 of the agreement.

Clause 7.1 set out the shares of the profits and losses of the firm. The share to be received by the pursuer was expressed thus: “£36,000 per annum reviewable annually and 20 per cent of the net profit of the court department. . . .” The “net profits” were defined as: “The profits of the firm (other than profits of a capital nature) in respect of any accounting period before charging taxation but after charging all expenses and outgoings of the firm and the expression ‘net losses’ shall be construed accordingly.”

Counsel for the defenders argued that the detailed provisions about the shares of the partners were reliant on there being net profits to share. If there were no net profits the pursuer was not entitled to the specified share set out in the clause. Further as the pursuer had been credited with payments in a situation where there were no profits to share the defenders were entitled to repayment.

The words “the net profits and losses . . . shall belong to and be borne by the partners in the following shares” were crucial to the meaning of the clause. The clause was clearly designed to specify the shares of net profits and losses.

The solicitor advocate for the pursuer invited the court to refuse the appeal.

He argued that the agreement was ambiguous and the clause could be read in two different ways. The correct construction was that the fixed sum of £36,000 and 20 per cent of the court department profits were to be paid to the pursuer regardless of whether there were net profits or losses of the firm. The construction suggested by the pursuer was consistent with business common sense.

G 206

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Held that the meaning was clear about the critical issue and there was no ambiguity and no need to explore commercial common sense and the surrounding circumstances (para.23) and the pursuer could prove an entitlement to payment of his share only if there had been net profits of the firm (para.24); and appeal allowed.

A

Cases referred to: Arnold v Britton [2015] UKSC 36; [2015] A.C. 1619; [2015] 2 W.L.R. 1593; [2016] 1 All E.R. 1 Grove Investments Ltd v Cape Building Products Ltd [2014] CSIH 43 Global Port Services (Scotland) Ltd Global v Energy (Holdings) Ltd [2015] CSIH 42 Hill, re [1934] Ch. 623 Marsh v Stacey (1963) 107 S.J. 512 Rainy Sky SA v Kookmin Bank [2011] UKSC 50; [2011] 1 W.L.R. 2900; [2012] 1 All E.R. 1137.

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 Lady Clark of Calton on 19 July 2016.

B

C

LADY CLARK OF CALTON Summary

[1] John Fraser Tait, a solicitor, entered into a partnership agreement to carry on the profession of solicitors under the name of RGM Solicitors with effect from 1 July 2007. He tendered his resignation from said partnership on 12 January 2009 following dispute, inter alia, about payments due to him in terms of said agreement. Thereafter, as pursuer, he raised an action in the sheriff court against the partnership RGM Solicitors and two of the partners, Robert Gordon Marshall and Samuel Harvey Waddell as defenders. The pursuer sought an account and payment of certain sums from the defenders.

The defenders counterclaimed for sums due as a result of the abandonment of a litigation negligently conducted by the pursuer and for payment by the pursuer of the deficit in his capital account.

[2] The terms of [cl.]7.1 of the partnership agreement and the construction thereof were crucial to the litigation but the issues in dispute by the parties were not confined to that.

[3] The sheriff heard evidence in a proof before answer about all the disputed issues. He decided the issues in favour of the pursuer and assoilzied the pursuer from the craves of the counterclaim as set out in the interlocutor of the sheriff dated 28 November 2014. By interlocutor dated 17 December 2014, expenses were awarded in favour of the pursuer.

[4] The defenders appealed to the sheriff principal but on a restricted basis.

The main issue raised in the appeal by the defenders before the sheriff principal was the construction of [cl.]7.1 of the partnership agreement. The sheriff principal approved the analysis and approach of the sheriff in his interlocutor of 30 June 2015 and adhered to the interlocutors of the sheriff dated 28 November and 17 December 2014.

[5] The defenders appealed to this court. The appeal focused on the interpretation of cl.7.1 of the partnership agreement and the defenders submitted that both the sheriff and sheriff principal had erred in their

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construction and conclusions about the interpretation and effect of cl.7.1. The proper construction of cl.7.1 was said to be capable of resolving the only outstanding issues between the parties.

Cl.7 of the partnership agreement

B

C

D

[6] Clause 7.1 states: “Profits and losses “Net profits or net losses (other than profits and losses of a capital nature) shall belong to and be borne by the partners in the following shares: “Partner shares “Robert Gordon Marshall 50 per cent in respect of all premises except 131 Church Walk, Denny, 40 per cent in respect of the premises at 131 Church Walk, Denny “Samuel Harvey Waddell 50 per cent in respect of all premises except 131 Church Walk, Denny, 40 per cent in respect of the premises at 131 Church Walk, Denny “Thomas Edward Docherty, £38,000 per annum reviewable annually and 20 per cent of the net profit of 131 Church Walk, Denny “John Fraser Tait, £36,000 per annum reviewable annually and 20 per cent of the net profit of the court department operated by John Fraser Tait which shall include such works as are deemed by the other partners to be included in the said court department. . . .”

[7] In cl.1 of the partnership agreement in the definitions and interpretation section, the definition of “net profits” states: “The profits of the firm (other than profits of a capital nature) in respect of any accounting period before charging taxation but after charging all expenses and outgoings of the firm and the expression ‘net losses’ shall be construed accordingly. . . .”

In cl.5 the definition of “outgoings” states: “The rent of the premises, the cost of all repairs, alterations, improvements and insurances thereof, the remuneration of all employees of and agents for the firm, all expenses and outgoings incidental to the practice and all losses or damages incurred in carrying on the same shall be paid out of the firm’s money and in case of deficiency by the partners as hereinafter provided.”

E Submissions on behalf of the defenders

F

G

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[8] Senior counsel invited the court to allow the appeal and to recall the sheriff’s interlocutors dated 28 November and 17 December 2014 to the extent that the interlocutors required to be altered in the event that the grounds of appeal were successful. He invited the court to put the case out by order to allow parties to address the court about the form of the interlocutor and expenses taking into account the opinion of the court.

[9] Senior counsel adopted his detailed written submissions. His main point was both short and simple. He submitted that cl.7.1 was not ambiguous; there was only one ordinary and natural meaning to be given to the words agreed by the parties and that meaning favoured the construction relied on by the defenders. The defenders submitted that the detailed provisions about the shares of the partners set out in the latter part of cl.7.1 were reliant on there being net profits to share. Where there were no net profits of the firm, as in the present case, the pursuer was not entitled to the specified share detailed in cl.7.1. Thus the pursuer was not entitled to decree in terms of the first and third pleas-in-law in the principal action. Further, as the pursuer had been

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credited with payments, in a situation where there were no net profits to share, the defenders were entitled to repayment in terms of the second crave of the counterclaim as said payments were only due if there were net profits to share.

[10] Counsel invited the court to look in detail at the wording of cl.7 and to recognise that the first three lines which state “net profits or net losses . . . shall belong to and be borne by the partners in the following shares:” are crucial to the meaning of the clause. The detailed provision about the partner shares have effect when there are net profits of the firm as defined in the agreement.

In the absence of net profits of the firm there is nothing to share between the partners. He submitted that this was the beginning and end of the defenders’ position and the matter was as simple as that. If that is correct the sheriff reached the wrong conclusion about the interpretation of cl.7.1. The sheriff adopted a mistaken starting-point trying to work out how to interpret and apply the various percentages specified under partner shares taking into account the fixed sums which are also specified. Counsel accepted that the interpretation and application of the part of the cl.7.1 which specifies individual partner shares is not without difficulty but that missed the point. The issue in this case is not how to distribute the net profits under reference to the provisions about partner shares. The issue to be determined is whether or not the pursuer is entitled to the sums specified as his share, that is a fixed sum of £36,000 per annum plus 20 per cent of the net profit of the court department.

That share is premised on the provision that there are net profits of the firm to be shared out among the parties. It is clear from cl.7.1 that this clause is designed to agree and specify shares of net profits or net losses. Once that is recognised, the pursuer’s interpretation of cl.7(1) which the sheriff accepted is plainly wrong. On the pursuer’s interpretation, he is entitled to £36,000 per annum and 20 per cent of the net profit of the court department even in a situation where there are no net profits of the firm as defined in the agreement.

[11] Turning to the legal framework, counsel submitted that the principles of construction were well established and not in dispute in this case. Reference was made to Rainy Sky SA v Kookmin Bank; Global Port Services (Scotland) Ltd v Global Energy (Holdings) Ltd; and Arnold v Britton.

[12] If, contrary to the submissions made on behalf of the defenders, the court concluded that the words used by the parties were capable of having more than one potential meaning and that the construction put forward by the pursuer was an alternative meaning, counsel accepted that the construction which should be preferred is that which is the more commercially sensible.

Reference was made to Rainy Sky SA. Counsel criticised the sheriff’s reasoning about commercial sense. The sheriff undervalued the importance and status of becoming a partner in this small solicitors’ partnership. The pursuer’s income was potentially enhanced, he acquired further powers, status and prospects.

[13] Counsel also made reference to some authorities about the nature of partnership. It was not disputed that partnership could take many different forms and that payment might be made in the form of a fixed salary only.

Reference was made to Linley & Banks on Partnership (19th edn), paras 5–59 and 10–86. The parties in the present case could have agreed, for example, that the pursuer be a salaried partner paid without reference to any sharing in profits or liability for losses. Examples of such arrangements were given under reference to In Re Hill, Greer LJ at p.630 and Maugham LJ at p.634, and Marsh v Stacey. The latter case was described as the most similar to the present case albeit it was accepted that in every case the partnership arrangements must depend upon the precise terms of the partnership agreement. Counsel

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submitted that it is instructive to note that a problem, similar to the problem in the present case, arose in Marsh as to whether the fixed salary was to be paid regardless of profits or was the fixed salary to be paid only out of profits but given a priority over another partner’s share of profits. The wording in the Marsh partnership agreement made reference to payment “as a first charge on the profits”. The dispute was determined by the court on the basis that the salary was to be paid out of the profits with priority given to payment of the fixed salary.

B

Submissions on behalf of the pursuer

C

D

E

F

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[14] The solicitor advocate for the pursuer invited the court to refuse the appeal and adhere to the interlocutors of the sheriff and sheriff principal on the basis that the sheriff and sheriff principal correctly applied the law. The primary submission was that cl.7.1 of the agreement was ambiguous and that the clause could be read in the two different ways put forward on behalf of the pursuer and the defenders. Put shortly, the pursuer contended that the correct construction was that the fixed sum payment of £36,000 and 20 per cent of the court department profits were due to be paid by the defenders regardless of whether there were net profits or net losses of the firm in the relevant period.

The solicitor advocate accepted that in presenting the case to the sheriff and sheriff principal, his submission was that cl.7.1 was capable of only one potential meaning and the sheriff accepted that submission in finding for the pursuer.

[15] The sheriff principal in para.34 of his judgment stated: “[A]pplying the natural and ordinary meaning of the language of cl.7.1 and reading it as a whole, the placing of £36,000 against the pursuer’s name cannot be understood as the allocation of a share in either the profits or losses of the firm. . . .”

The reasoning relied on related to the provisions of the clause which made it clear all of the available shares were allocated before the provision made for the share of the pursuer.

[16] There was no dispute between the parties about the legal framework within which the court should interpret the partnership agreement. Reference was made to the development of the law in Rainy Sky SA v Kookmin Bank; Grove Investments Ltd v Cape Building Products Ltd; and Arnold v Britton.

[17] On behalf of the pursuer it was accepted in the appeal that there were two possible constructions of cl.7(1) of the agreement. In these circumstances taking into account the legal principles which applied, the court was invited to prefer the construction relied on by the pursuer which is consistent with business common sense and to reject the defenders’ construction. When the opinion of the sheriff is properly analysed, it is apparent that he considered the natural and ordinary meaning of the words in the agreement; construed the agreement objectively according to the standards of a reasonable man who is aware of the commercial context; had regard to all the relevant surrounding circumstances; and the objective contextual background; took account of the perspective of both parties; and having considered the evidence was entitled to prefer the construction put forward by the pursuer which is consistent with business common sense and to reject the defenders’ construction. This approach was correctly upheld by the sheriff principal. The sheriff, having heard the evidence was in the best position to properly determine the “commercial context” and the “contextual background” against which the agreement required to be construed.

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Decision and reasons

[18] We did not understand that there was any dispute by the parties about the relevant legal principles of interpretation which should be applied to this agreement. In particular it was not disputed that: “[T]he reliance placed in some cases on commercial common sense and surrounding circumstances (e.g. in Chartbrook [2009] A.C. 1101, paras 16–26) should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision. Unlike commercial common sense and the surrounding circumstances, the parties have control over the language they use in a contract. And, again save perhaps in a very unusual case, the parties must have been specifically focussing on the issue covered by the provision when agreeing the wording of that provision” (Arnold v Britton para.7).

There was also no dispute that a partnership agreement could effectively agree that sums should be paid to a partner, whether designed as salary or not, regardless of the profitability or otherwise of the firm. The legal entitlement of a partner would depend upon the wording used by the partners in any particular agreement and that wording would require to be construed to consider whether the result was achieved or not.

[19] The starting-point for our consideration is cl.7.1 of the agreement. In order to understand the opening words “net profits or net losses . . . shall belong to and be borne by the partners in the following shares:” it is necessary to refer to the definitions and interpretation section of the agreement in which net profits are defined. That definition also imports the definition of outgoings which is defined in cl.5. Before we ask the question what are the respective shares of each partner and in particular the share of the pursuer, the logically prior question which we consider to be important is to identify what is to be shared. We consider that there is only one answer to that question. It is the net profits (or net losses) and the net profits are to be identified by reference to the specified definition in the agreement. It is the net profits of the firm so defined which shall belong to a partner in a specified share in terms of cl.7.

[20] If there are net profits then the question would arise as to the meaning to be given to the terms of the partner shares specified in cl.7(1). We consider that in a situation where the court was required to determine what net profits belong to and are payable to any particular partner in terms of the provisions about partner shares in this agreement, difficulties might arise because of the wording. Various possibilities were canvassed about how to interpret and give effect to the wording about partner shares and these were problems which appear to be at the forefront of the mind of the sheriff and sheriff principal as they grappled with the wording. But it is the prior question which in our opinion is the important question to decide to resolve the dispute in this case as it has developed. We consider that the opening words of cl.7.1 could not be clearer. It is the net profits which shall belong to the partners and thereafter there are specified the following shares. There may be ambiguity and difficulty in ascertaining what the shares are, but in our opinion there is no ambiguity in determining that whatever is meant, they are shares of the net profits of the firm as defined in the agreement. In oral submission, the solicitor advocate for the pursuer sought to persuade us that the reference to £36,000 should be considered as an outlay to be deducted before the profits and losses were to be determined. It was a “salary” to which the pursuer was entitled regardless of

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2017 S.C.L.R.

profits in terms of his share. We do not accept that. Net profits as defined in the agreement include deduction of outgoings which are widely defined. In any event regardless of how one categorises the £36,000, a partner share in terms of cl.7.1 is a share of net profits and only net profits.

[21] We have given careful consideration to the approach adopted by the sheriff. The sheriff properly recognised in para.10 that the starting-point for construction of cl.7.1 is to look at the natural and ordinary meaning. He does not refer to the wider definition given to net profits in the agreement and does not reflect at all on the first question as to what the partners are to be entitled to share. The concentration of the sheriff was on the meaning of the latter part of the clause. His analysis of the natural and ordinary meaning of the words used concentrated exclusively on the difficulties about the meaning of partner shares. Despite his criticisms in para.14 about clumsy draftsmanship of the partnership agreement, he concluded that the most natural construction of [cl.]7(1), as it relates to the pursuer, was that the pursuer was entitled to receive payment of a fixed sum of £36,000 irrespective of profits (para.15).

The sheriff then considered in the context of the facts what is the most commercial construction and concluded that supported the only natural construction which he found.

[22] The sheriff principal in para.32 made reference to the beginning of cl.7.1 and stated that: “. . . interaction with the wording which follows falls far short of creating a clause whose terms can be said to be clear and unambiguous”.

In his opinion attempts to legitimise their construction by the defenders simply gave rise to more questions than answers. The sheriff principal also focused his attention on the difficulties of the wording about the partnership shares but he did not address in detail the question of what it was the parties agreed to share.

[23] In our opinion this is a case in which the meaning is clear about the critical issue. There is no ambiguity and there can only be one potential meaning. There is no need therefore to explore commercial common sense and the surrounding circumstances. The meaning is plain from the language of the provision used in the context of the agreement.

[24] At a late stage, an issue was raised by the pursuer as to whether or not as a matter of fact a net loss was suffered by the firm. It appears to us that was an assumption on which the litigation was conducted but in any event there did not appear to be any evidence before the sheriff that the firm had in fact made a net profit during the relevant accounting period 2008–09. On the pursuer’s interpretation of cl.7(1) the factual issue of net profits or net loss of the firm is irrelevant because the pursuer contended that he is entitled to the payment of his specified share regardless of any profits made by the firm. It was not disputed by the parties that if there were net profits of the firm to share, the pursuer would be entitled to a share thereof. There might be dispute about how such a share would be calculated if the profits, for example, were insufficient to cover a minimum of the fixed sums specified. Various solutions to that were discussed in the course of submissions but we do not require to resolve such questions. We have concluded that the pursuer could only prove an entitlement to payment of his share if there were net profits of the firm. In order for the pursuer to succeed therefore, the pursuer would bear the onus of proving that there were net profits for the relevant period.

[25] We have not dealt separately with the appeal insofar as it relates to that part of the counterclaim in which the defenders sought repayment of the deficit in the capital account of the pursuer. We are of the opinion that if the pursuer’s construction of cl.7(1), as we have found it to be, is wrong

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and the pursuer therefore was not entitled to payment of his share in terms of cl.7(1), this would result in the defenders being entitled to repayment of any payments made to the pursuer as “drawings” for the period 1 May 2008 to 30 April 2009. We note the terms of the defenders’ second plea-in-law in the counterclaim and there requires to be some clarification of the sum counterclaimed.

[26] For these reasons we allow the appeal. We appoint the case to call by order to allow parties to address us about the outstanding issue, the terms of the interlocutor and expenses.

A

B

For the pursuer and respondent: Clark, Solicitor advocate, instructed by Gilson Gray LLP, Solicitors, Glasgow.

For the defenders and appellants: R Dunlop QC, instructed by Clyde & Co, Solicitors, Edinburgh.

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A SHERIFF COURT Edinburgh

24 August 2016

Sheriff Peter J Braid B

PETER ALLAN

Pursuer

against PLEXUS CORP (UK) LTD

Defender

Process—Jury trial—Damages for loss of finger—Whether jury trial should be allowed

C

D

E

In an action in the sheriff court for damages in respect of an accident involving the loss of a finger in the course of the pursuer’s employment, liability was admitted. The pursuer claimed damages under the headings of solatium; disadvantage in the labour market; pension loss; personal services; and miscellaneous costs including most significantly the cost of replacing on a regular basis a custom-made silicone digit.

The pursuer moved for jury trial. The defender opposed the motion and argued that each case turned on its own facts and took no issue with the pursuer’s summarisation of the guiding principles as follows: the application of the Ogden Tables did not constitute special cause for refusing a jury trial; nor did a requirement to consider more than one multiplier; nor the existence of both a future loss of earnings claim; and a pension loss claim. Disputes and issues which arose time and time again were unlikely to constitute special cause but special cause might be shown where there were particular difficulties associated with future loss.

In the instant case there was special cause due to a number of factors including the nature of the injury which included physical and psychological consequences and the fact that the pursuer had suffered damage to his hand unrelated to the accident. There were also difficulties relating to the calculation of future loss of earnings which would require the jury to consider a range of multiplicands with reference to the Ogden Tables.

Counsel for the defender argued that the future loss of earnings calculation did not give rise to such a level of complexity as to amount to special cause.

The period for future loss of earnings was short because of the pursuer’s age.

Held that the jury would have had to consider a series of moderately complex issues, none of which would turn on the outcome of any other issues, and the case was one which lay well within the province of a properly directed jury (para.10); and the defender had not shown special cause (para.11); and motion for jury trial granted.

F

Cases referred to:

G

Annandale v Santa Fe International Services Inc, 2006 S.L.T. 676 Crawford v Renfrewshire Council, 2001 Rep. L.R. 50 Graham v Dryden, 23 July 2002, unreported Kordakis v National Assurance and Guarantee Co Ltd [2012] CSOH 57 Levendon v International Paper (UK) Ltd [2011] CSOH 116; 2011 Rep. L.R. 117 MacDonald v Mallum [2008] CSOH 1 O’Neill v Dowding & Mills plc [2007] CSOH 17 214

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Allan v Plexus Corp (UK) Ltd (Sh Ct)

215

Potts v McNulty, 2000 S.L.T. 1269; 2000 Rep. L.R. 72 Robertson v Smith, 2000 S.C. 591; 2000 S.L.T. 1012 Slessor v Vetco Gray UK Ltd, 2007 CSOH 130; 2007 Rep. L.R. 83 Stewart v Nicoll, 2003 S.L.T. 843 Tait v Drummond Offshore Drilling (UK) Ltd, 21 December 2000, unreported

A

The full circumstances of the case and the arguments of counsel are to be found in the following judgment of the sheriff which was issued on 24 August 2016.

B

SHERIFF BRAID Introduction and background

[1] This is a personal injuries action in the All-Scotland Sheriff Court at Edinburgh, in which the pursuer seeks damages in respect of an accident in the course of his employment with the defender, when his left ring finger was severed through coming into contact with a metal clip attached to metal racking. Liability is admitted. The pursuer’s heads of claim comprise: solatium; disadvantage in the labour market; pension loss; personal services; and miscellaneous costs including, most significantly, the cost of replacing on a regular basis a custom-made silicone digit.

[2] The case called before me on 15 August 2016 for a hearing on the pursuer’s opposed motion No 7/4 of Process, to allow the record to be received and to allow issues. In passing, I should mention that the motion was deficient in two respects, namely, it ought to have sought a jury trial rather than issues (if a jury trial is allowed, the rules then provide for issues to be lodged within 14 days); and it ought to have estimated the time required for the trial. None the less the motion was accepted, and argued. (For completeness, a rule 18 hearing also took place on the same date. Amendment of the pleadings was not opposed and I dealt with that, and the consequential question of liability for expenses, at the time. I need not mention that aspect of the hearing further.)

[3] Mr Lugton, advocate, appeared for the pursuer; and Ms Bennett, advocate, for the defender. Ms Bennett acknowledged that the pursuer had a statutory entitlement to trial by jury by virtue of s.63(2) of the Courts Reform (Scotland) Act 2014, unless special cause was shown by the defender. It was further agreed that, by virtue of s.63(3) of the 2014 Act, facts or circumstances could constitute special cause only if they would constitute special cause for the purposes of the equivalent provisions regulating allowance of issues in the Court of Session. Finally, counsel were also agreed that the decision as to whether or not to allow issues was a discretionary one (although it seems to me that the effect of s.63(3) is that it cannot be entirely discretionary. However, that may be a question for another day.).

C

D

E

Authorities

[4] The following authorities were referred to in the course of submissions: Courts Reform (Scotland) Act 2014, s.63; [the sheriff quoted the cases as set out above and continued:]

F

Defender’s submissions

[5] In opposing the pursuer’s motion, Ms Bennett did not dispute that these authorities set out the principles to be applied by the court but pointed out, correctly, that each case tends to turn on its own facts and circumstances.

Having seen the pursuer’s written submission in advance, she took no issue with Mr Lugton’s summary of the guiding principles as follows:

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216 A

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i.

The application of the Ogden Tables, including adjustments to a multiplier for standard contingencies as provided for in the annotated notes, does not constitute special cause in itself (Robertson v Smith; Tait v Diamond Offshore Drilling (UK) Ltd; Graham v Dryden; Stewart v Nicoll; Annandale v Santa Fe International Services Inc). ii. The requirement to consider more than one multiplier in relation to more than one head of claim does not constitute special cause in itself. In particular the presence of both a future loss of earnings claim and a pension loss claim does not constitute special cause (Graham; Stewart; Annandale; Crawford v Renfrewshire Council). iii. Disputes and issues which arise time and again in personal injury claims are unlikely to constitute special cause (Annandale). iv. Special cause may be shown where there are particular difficulties associated with future loss, e.g.,: multiple calculations which require to be calculated in relation to multiple pursuers: Potts v McNulty. pursuer’s averments relating to a head of loss of doubtful relevance or lacking in specification: Potts. substantial uncertainty over a future loss due to factors such as redundancy: Lewendon v International Paper (UK) Ltd. uncertainty over retirement date: Macdonald [v Mallum]. the need to apply split multipliers: Slessor [v Vetco Gray UK Ltd]; Macdonald; O’Neill [v Dowding & Mills plc]; Lewendon.

[6] Ms Bennett submitted that, notwithstanding the foregoing guidance, there was special cause in the present case due to a number of factors. The first of these was the nature of the injury which had both physical and psychological consequences for the pursuer. She made reference to statement of claim 5. It contains averments about the traumatic amputation of the pursuer’s left ring finger with associated degloving injury, and about an adjustment disorder with mixed anxiety and depressed mood. She also drew my attention to answer 5.1, in which the defender avers that the pursuer suffers from carpal tunnel syndrome and pain in both wrists, as well as Dupuytren’s disease in both hands and significant thumb arthritis, resulting in poor hand dexterity and worsening grip strength unrelated to the accident. In assessing solatium, there were therefore complexities caused by pre-existing conditions as well as the need to consider both the physical and psychological consequences of the accident. The second factor relied upon by counsel for the defender was future loss of earnings. She made reference to statement 5.2, and to answer 5.1 and 5.2. On those averments there was an issue as to the pursuer’s retirement date.

The pursuer’s position, stated briefly, is that he left his employment with the defender in December 2013 whereas but for the accident he would have continued in employment until the age of 70 (December 2018). He was restricted in the type and amount of work that he could do. He had secured alternative employment but his earnings capacity was reduced. The defender’s response was that the pursuer had in any event intended to retire from the defender’s employment in 2013. The jury would therefore have to consider a range of multiplicands and reference would require to be made to the Ogden Tables. The next factor relied upon was the pursuer’s pension loss which again would require use of the Ogden Tables. Finally, counsel referred to statement of claim 5.5, in which the pursuer avers that he will require to replace his custom-made silicone digit on a regular basis. That would also require reference to the Ogden Tables but the application of a different multiplier. In summary, the use of the Ogden Tables regarding pension loss, loss of wages

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and the provision of future prosthetics all made for a complicated case. It would be difficult for a sheriff to give clear directions to a jury. Accordingly, the more appropriate future procedure would be proof.

A

Pursuer’s submissions

[7] In reply, Mr Lugton made reference to his helpful written submission, much of which I have summarised above in para.5. As regards future loss of earnings, he submitted that these did not give rise to such a level of complexity as to amount to special cause. He pointed out that the pursuer will attain the age of 70 in March 2018. Accordingly, his future loss of earnings will require to be considered over a very short and clearly defined period of time. While admittedly there was a dispute as to when he would have retired but for the accident, that was essentially a jury question in any event. Counsel made reference to the statement of valuation of claim (No 10 of Process) lodged for the pursuer. It was not particularly complicated. It did have recourse to the Ogden Tables but the Ogden calculations were not particularly complicated as such calculations go. This was not a case where one had to try to predict the twists and turns of a lengthy future career. There were no split multipliers.

The pension loss claimed was very modest and was relatively insignificant in the context of the claim as a whole, in contrast with the hypothetical case of a younger pursuer. A similar Ogden Table calculation would be required both for the wage loss and the pension loss. As regards the point about both psychological and physical injury having been sustained, counsel referred to Annandale, para.6, where Temporary Judge J Gordon Reid QC summarised the general guidance which emerged from the authorities. That guidance included that the leading of technical and complex medical evidence would not of itself make the case unsuitable for a jury trial unless it was a medical question of such novelty or uncertainty that the jury were unlikely to understand; that the mere possibility of some complex medical matter arising does not amount to special cause; that the need for a jury to consider more than one multiplier or pension loss per se is not special cause; that the fact that a pursuer has a pre-existing medical condition or disability or susceptibility does not constitute special cause; that the need to direct a jury on different hypotheses and their consequences does not constitute special cause; and that the number of questions which a jury requires to answer is not relevant although the complexity of the questions and the confusion which they might create in a jury’s mind is a relevant consideration. Annandale showed, submitted counsel, that juries can and do deal with questions of causation and relatively complex cases in which there may be complex injuries.

[8] Counsel then made brief reference to the authorities. He pointed out that Robertson v Smith, where special cause was held not to exist simply because of the application of the Ogden Tables, involved a much younger pursuer, as did Tait. He then drew my attention to three decisions of Lord Emslie, in each of which he held that special cause was shown. Counsel made two general observations about these cases, namely, first, they did not sit easily with the line of authorities that preceded them and, secondly, that the difficulties to which Lord Emslie referred did not exist in the present case. The first case was Slessor. Issues were refused as the future loss claim was too complicated, and the pursuer had suffered the amputation of an arm and leg which was significantly more serious than the injuries sustained by the pursuer in the present action. Lord Emslie’s reasoning was set out at paras.18 and 19 of his opinion. While he did refer to the separate and different multipliers which would need to be considered, it was also clear that split multipliers would be

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required and a confusing picture was presented by the pursuer’s pleadings.

Those factors were absent here. In O’Neill, Lord Emslie reached a similar decision for similar reasons. The sort of difficulties present in O’Neill were not present here. Issues had also been refused by Lord Emslie in O’Neill, and by J Beckett QC sitting as a Temporary Judge (now Lord Beckett) in Lewenden.

Judge Becket had later considered the three Lord Emslie cases and his own case of Lewenden, in Kordakis v The National Insurance & Guarantee Corporation Ltd, distinguishing those cases from the circumstances in Korakis, where he allowed issues.

Discussion

C

D

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F

G

5467.indd 218

[9] Each case must turn on its own facts and circumstances. It is striking that in the cases to which I was referred where issues were refused, particular difficulties with some aspect of the calculation of damages were founded upon by reference to the particular facts and circumstances of the case in question and one can easily see that a jury might have been thought unable to understand, or fully grasp, the complexities involved in the computation of one or more of the heads of claim. However, counsel for the defender in the present case was unable to point to any particular aspect of the facts and circumstances, as set out in either the pleadings or the statement of valuation of claim, which would give any particular difficulty to a jury. Assessment of solatium would not be entirely straightforward but would be well within the capability of a properly directed jury. In my view, such a jury would be able to comprehend the task before them, even allowing for the possibility of pre-existing conditions and the existence of both a physical and a psychological condition. As regards patrimonial loss, as soon as it is accepted, as it must be on the Court of Session authorities to which I was referred, that the need for the application of the Ogden Tables in itself does not constitute special cause, the argument for the defender loses much of its force. There is admittedly an issue over when the pursuer would have retired but for the accident, but it seems to me that that will largely turn on the credibility and reliability of the pursuer and as such it is, as counsel for the pursuer submitted, manifestly a jury question. While the matter may not be quite as straightforward as counsel for the pursuer submitted, inasmuch as even if the defender succeeds in establishing that the pursuer would have left their employment at age 65, there may still be an issue as to whether the pursuer’s earning capacity, in his alternative employment post-retirement, has been reduced, any complexities in my view are not such as to make the case unsuitable for a jury. As regards the application of the Ogden Tables, no particular difficulty was said, by counsel for the defender, to arise out of the calculation of the multiplicands nor was issue taken with the factor of 0.79 taken to provide for risks other than mortality. As counsel for the pursuer pointed out, this is not a case of a young pursuer whose future career might take various twists and turns, and the calculation is over a relatively short, and defined, period. The approach to be taken is easily capable of being explained to, and understood by, a jury. As for the loss of pension claim it seems to me that that is as straightforward as any such claim could ever be. Finally, I do not foresee any particular difficulty arising out of the pursuer’s claim for the regular replacement of his silicone digit. That will involve the application of a different multiplier but such an exercise is again within the capability and comprehension of a properly directed jury.

[10] It was, of course, the combination of the foregoing factors that counsel for the defender relied upon, rather than any single factor in isolation. However,

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in essence the jury will have to consider a series of moderately, but no more than moderately, complex issues, none of which turn on the outcome of any of the other issues. In my view that simply means that the case overall is one of moderate complexity but is none the less one which lies well within the province of a properly directed jury. I do not consider that the number of issues, or their nature, even taken in combination, is such as to render the case unsuitable for a jury. Such difficulties as exist fall well short of those which led Lord Emslie and Lord Beckett (as he now is) to conclude that special cause had been shown, in the cases under consideration by them.

A

B

Decision

[11] For all of these reasons, I have reached the view that the defender has not shown special cause. Accordingly, I have granted the pursuer’s motion and allowed the pursuer a jury trial. In terms of the ordinary cause rules, issues will require to be lodged within 14 days.

For the pursuer: Lugden For the defender: Bennet

C

D

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Jury trial Allan v Plexus Corp (UK) Ltd (Sh Ct) 214 Recovery of documents Cumming v Tayside Health Board (OH) 176 Reparation— Duty of care—Whether negligence proved MacLeod’s Representatives v Highland Health Board (IH) 115

SCOTTISH CIVIL LAW REPORTS

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April 2017 2017 S.C.L.R. 115−220

Process— Form of judgment—Delay in issuing judgment—Whether reasons adequate MacLeod’s Representatives v Highland Health Board (IH) 115

2017 S.C.L.R. 115–220

Scottish Civil Law Reports Edited by Sheriff Michael J Fletcher Allan v Plexus Corp (UK) Ltd (Sh Ct) Cumming v Tayside Health Board (OH) Dooneen Ltd t/a McGinnes Associates v Mond (IH)

*711749*

214 176 199

MacLeod’s Representatives v Highland Health Board (IH) 115 Professional Standards Authority for Health and Social Care v General Dental Council (IH) 185 Tait v RGM Solicitors (IH) 206