Scottish Civil Law Reports, issue 2, April 2016

Companies— Liquidation— Liquidator claiming contribution from director equal to total of assets improperly diverted or transferred—Whether breach of fiduciary duty necessary Nimmo v Glasgow (Sh Ct) 173

Expert evidence—Whether admissible Kennedy v Cordia (Services) LLP (SC) Judicial Review— Nursing and Midwifery Council—Delay Stewart, Petitioner (OH)

203

166

April 2016 2016 S.C.L.R. 89−234 111

Local authorities— Provision of care accommodation—Gratuitous alienation Argyll and Bute Council v Gordon (Sh Ct) 192 Reduction— Court decree—Whether exceptional circumstances Ramsden v Santon Highlands Ltd (OH)

89

Reparation— Breach of statutory duty—Carer slipping and falling on icy pavement Kennedy v Cordia (Services) LLP (SC) 203

SCOTTISH CIVIL LAW REPORTS

Evidence— Appeal—Pursuer failing to prove accident Leonard v Loch Lomond and the Trossachs National Park Authority (IH) 102

Limitation of actions— Historical physical abuse—Whether action should be allowed to proceed SF v Quarriers (OH)

2016 S.C.L.R. 89–234

Scottish Civil Law Reports Edited by Sheriff Michael J Fletcher Argyll and Bute Council v Gordon (Sh Ct) 192 Kennedy v Cordia (Services) LLP (SC) 203 Leonard v Loch Lomond and the Trossachs National Park Authority (IH) 102

*657942*

Nimmo v Glasgow (Sh Ct) Ramsden v Santon Highlands Ltd (OH) SF v Quarriers (OH) Stewart, Petitioner (OH)

173 89 111 166

A COURT OF SESSION

2 June 2015

Outer House Lord Kinclaven KENNETH RAMSDEN

Pursuer

B

against SANTON HIGHLANDS LTD

Defender

Reduction—Court decree—Missives—Defence “competent and omitted”—Res noviter—Relevance—Whether plea of competent and omitted available to defender—Whether “consumer”—Whether “exceptional circumstances”—Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277)

C

Words—“Consumer” Words—“Exceptional circumstances” The pursuer raised an action seeking production and reduction of a court decree; missives relating to the purchase of heritable property; and a settlement agreement. He also sought damages for breach of the missives. The decree in question was pronounced in the Court of Session in an action where the pursuer was the defender in the instant action and the defender was the pursuer in the instant action and the missives were between the pursuer and the defender relating to property in Fort Augustus. In addition, the action concerned a settlement agreement which was also referred to as ‘Heads of terms of settlement’ and this was contained in a document signed by counsel on behalf of both parties. The action appeared on the procedure roll for a debate during which the defender asked the court to dismiss the action and the pursuer moved for a proof before answer.

The pursuer averred that there were exceptional circumstances to justify reduction of the court decree. He also argued that he had been induced to enter into missives as a result of “failure of the defenders to disclose the existence of contaminated land”. He further averred that he was entitled to damages as a result of the defender’s breach of implied obligations under the missives.

In the earlier action the pursuer sought declarator that the parties were bound by the missives for the sale and purchase of the subjects in Fort Augustus and for payment of the purchase price. Decree was granted on the basis that the court found that the parties were bound by a settlement agreement which had been entered into on 17 May 2011. The defenders had a plea-in-law as follows: “The present action being based on averments that relate to allegations of misleading omission, misrepresentation and breach of contract, being matters that were competent by way of defence to the first action but which were omitted from the defence to that action, the present action is incompetent and the defenders should be assoilzied, which failing the action should be dismissed.”

There was also a general plea to the relevancy and lacking in specification.

Counsel for the defender submitted that the pursuer could not challenge the prior judgment on the grounds that he did because these grounds were all

D

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G

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grounds of defence which it had been competent to plead in the first action but which were omitted. The mere failure on the part of the pursuer to appreciate that he might have had other grounds to defend the first action did not in any way affect the applicability of the plea of competent and omitted.

The pursuer could only seek reduction on averments amounting to res noviter, namely facts which were not only unknown to him at the time of the decrees and deeds he sought to reduce but which could not have been known to him, and the pursuer made no such averments.

In any event, the action proceeded on the footing that the pursuer considered that he had contracted with the defender as a “consumer” for the purposes of The Consumer Protection from Unfair Trading Regulations 2008, but he made no express averment to that effect. His condescendence included averments that “in acquiring the property the pursuer was acting for purposes outside his business and that he had bought the property as a holiday home for himself and his family. When occupied it has been available to let by arrangement”. Counsel argued that the averments appeared to be contradictory and in addition argued that they were generally irrelevant.

Counsel for the pursuer argued that the basis for reduction was set out as ‘The omission by the defender to provide the pursuer with information material to his decision as to whether to proceed with the purchase, and the defender’s representation to the local authority about its intentions for the area of land to the south of the “sports ground”. He also argued that there were averments relating to the failure by the defender to provide the pursuer with information which meant that the pursuer was unable to raise the issue of misleading omissions in the first action. In these circumstances there was enough on record by way of averment by the pursuer for a proof before answer.

The plea of competent and omitted was only available to a pursuer and was not open to a defender. The pleadings of the pursuer were sufficient to amount to res noviter and disclosed exceptional circumstances justifying reduction.

The pursuer offered to prove that he contracted as a consumer.

Held (1) that there was no impediment to a plea of “competent and omitted” being taken by the defender in the instant action (para.70); (2) that, based on the pursuer’s averments, the pursuer’s case had necessarily to fail and the defender’s plea of “competent and omitted” fell to be sustained (para.74); and (3) that the pursuer’s pleadings did not disclose sufficient relevant and specific circumstances to justify reduction on the grounds of exceptional circumstances (para.78); and action dismissed.

Cases referred to:

F

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Burnett v Menzies Dougal WS, (IH) 2005 S.C.L.R. 1061; 2006 S.C. 93; 2005 S.L.T. 929 The Earl of Perth v Lady Willoughby de Eresby’s Trustees (1875) 2 R. 538 Grant Estates Ltd (in liquidation) v The Royal Bank of Scotland plc [2012] CSOH 133 Haigh & Ringrose Ltd v Barrhead Builders Ltd (No.2), 1981 S.L.T. 157 Jamieson v Jamieson, 1952 S.C. (H.L.) 44; 1952 S.L.T. 257 Mayarget Developments Ltd v Mathis [2006] CSOH 145 PMP Plus Ltd v Keeper of the Registers of Scotland, 2014 S.L.T. (Lands Tr.) 79 Royal Bank of Scotland plc v O’Donnell [2014] CSIH 84; 2015 S.C. 258 Vapenik v Thurner (Case C–508/12) [2014] 1 W.L.R. 2486.

The whole circumstances of the case and the arguments of counsel are to be found in the following opinion of the Lord Ordinary which was issued on 2 June 2015.

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LORD KINCLAVEN

A

Introduction and overview

[1] This is an ordinary action. . .in which the pursuer (Mr Ramsden) seeks, inter alia: (1) production and reduction of a court decree; (2) production and reduction of missives relating to “Plot 4” Courtyard Cottages, Fort Augustus; (3) production and reduction of a settlement agreement; and (4) damages of £41,500 for alleged breach of missives by the defender (Santon).

[2] The decree in issue is a decree of the Court of Session dated 10 October 2012 which was pronounced in an action (the first action) between the present pursuer (in which Mr Ramsden was the defender) and the present defender (in which Santon was the pursuer) being the action with Court Reference A730/09.

[3] The missives concerned are between the pursuer and the defender and relate to property known as “Plot 4”, Courtyard Cottages, The Highland Club, Fort Augustus Abbey, Fort Augustus. The missives comprise formal letters passing between Burness LLP (for the defender) and Messrs McAndrew & Jenkins (for the pursuer) dated in July and August 2005 and December 2008. Missives were finally concluded on or around 23 December 2008.

[4] The settlement agreement was also referred to as “Heads of terms of settlement” and is contained in a document dated 17 May 2011 signed by counsel on behalf of both parties.

[5] The case came before me for debate (along with two other related cases) on the procedure roll on 30 and 31 October 2014. During the debate the pursuer lodged a minute of amendment. The pleadings were amended on 30 December 2014 in terms of the minute and answers Nos.15 and 16 of Process.

The amended record is No.17 of Process. The debate resumed on 27 February 2015.

[6] Mr Thomson appeared for the defender at the debate. He invited me to sustain the defender’s first and second pleas-in-law and to dismiss the action.

The defender is a property development company.

[7] Mr Campbell appeared for the pursuer. He invited me to allow a proof before answer.

[8] Having considered the pleadings, and the submissions of parties, I have reached the conclusion (for the reasons outlined more fully below) that the defender’s submissions prevail.

[9] Accordingly, I shall sustain the defender’s first and second pleas-in-law, repel the pursuer’s pleas-in-law and dismiss the action.

[10] I shall reserve meantime the question of expenses.

[11] I would outline my reasons as follows.

B

C

D

E

F

The general background

[12] The present action is at the instance of Mr Ramsden. It has Court Reference A558/13 and it relates to “Plot 4” Courtyard Cottage. Both counsel treated this case as the lead action and I shall do likewise.

[13] There are, however, two other related actions against the present defender involving similar issues in relation to relevancy. The second action is also at the instance of Mr Ramsden (Court Reference A559/13) and it relates

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to “Plot 3”. The third action is at the instance of Ian Thomas (Court Reference A556/13) and it relates to “Plot 11” and “Plot 5”.

[14] The pleadings in the current case are contained in the print of the closed record (as amended, (No.17 of Process). The pleadings and defender’s original written note of argument (No.13 of Process) can be taken as read.

[15] The pursuer’s first plea-in-law is to the effect that there are “exceptional circumstances” to justify reduction of the court decree.

[16] The pursuer’s second plea-in-law relates to the missives and the settlement agreement and is to the effect that the pursuer was induced to enter into the missives as a result of “failure of the defenders to disclose the existence of contaminated land”.

[17] The pursuer’s third plea-in-law is to the effect that the pursuer is entitled to damages as a result of the defender’s breach of “implied obligations under the missives”.

[18] The pursuer’s fourth plea-in-law is to the effect that the pursuer is entitled to retain payment of the purchase price.

The context

[19] As mentioned above, and as appears from art.2 of condescendence, there was an earlier action (referred to as the first action) between the parties in this court.

[20] In that action Santon (the present defender) sought (1) declarator that the parties were bound by the missives for the sale and purchase of Plot 4 (“the subjects”); and (2) payment by Mr Ramsden (the present pursuer) to Santon (the present defender) of the sum of £246,500 plus interest in exchange for a valid disposition of the subjects.

[21] Decree in the first action was granted in favour of Santon on 10 October 2012. On that date the court found that the parties were bound by the settlement agreement entered into on 17 May 2011 and pronounced decree in terms of the first and second conclusions of the summons in the first action. In addition the court pronounced decree against Mr Ramsden for payment of the expenses of the minute and answers procedure relating to the settlement agreement in the first action.

Authorities

[22] In the course of the hearing I was provided with various copy authorities— including a lever arch file for the defender.

[23] In particular, during the course of the debate, I was referred to: • • • •

F

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Maclaren, Court of Session Practice (1916), p.401; D M Walker, Civil Remedies (1974), pp.179, 180; Maxwell, The Practice of the Court of Session (1980), pp.583, 584; The Consumer Protection from Unfair Trading Regulations 2008 (the 2008 Regulations). Reference was made, in particular, to reg.2(1) (definitions of “consumer”, “professional diligence” and “transactional decision”), reg.3(4), reg.6(1)–(4), reg.19, Pt.4A (“Consumers’ Rights to Redress” regs 27A, 27C, 27E) and reg.29 (“Validity of agreements”). Part 4A of the 2008 Regulations was added by the Consumer Protection (Amendment) Regulations 2014 2014/870, reg.3, in relation to contracts entered into, or payments made, on or after 1 October 2014.

• PMP Plus Ltd v Keeper of the Registers of Scotland, paras 51–53, 55–58, 118; • Moyarget Developments Limited v Mathis, paras 5, 7, 10, 11, 16, 17, 20, 40; • Haigh & Ringrose Ltd v Barrhead Builders Ltd;

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• Burnett v Menzies Dougal WS, at paras 14, 17; • Grant Estates Ltd (in liquidation) v The Royal Bank of Scotland plc, paras 85, 87, 88, and 93; • Royal Bank of Scotland plc v O’Donnell and McDonald, para.25.

A

[24] Counsel for the pursuer also referred to: • Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005—Unfair Commercial Practices Directive (the Directive).

Reference was made in particular to paras (5), (6), (7), (8), (9) (13), (14), and (18) and to the definitions in art.2 (a), (e), (h), (i), (k); • Vapenik v Thurner, the rubric at p.2486; and • The Earl of Perth v Lady Willoughby de Eresby’s Trustees, particularly p.545.

B

[25] Mention was also made of the well-known case of Jamieson v Jamieson which provides the test for relevancy of a pursuer’s averment.

[26] There was no joint minute of agreement.

C

The defender’s position

[27] The defender’s first plea-in-law is in the following terms: “The present action being based on averments that relate to allegations of misleading omission, misrepresentation and breach of contract, being matters that were competent by way of defence to the first action but which were omitted from the defence to that action, the present action is incompetent and the defenders should be assoilzied, which failing the action should be dismissed.”

[28] The defender’s second plea-in-law is that: “The pursuer’s averments being irrelevant et separatim lacking in specification, the action should be dismissed.”

[29] As a result of the pursuer’s amendments and deletions, the defender no longer requires to insist upon paras 16, 21, 22, 23, 26, 32 or 33 of their original note of argument (No.13 of Process). The first sentence of para.17 is also no longer required.

[30] Mr Thomson insisted on the defender’s first and second pleas-in-law, and sought dismissal of the action on the following basis:

D

E

I. The defender’s first plea-in-law: “competent and omitted”

[31] Mr Thomson submitted that the defender’s first plea-in-law “competent and omitted” should be sustained.

[32] This action proceeds on the basis that all that took place in the first action should be undone. In the first action Santon sought to enforce the missives between the parties. The action was defended by Mr Ramsden. In seeking to defend the first action, Mr Ramsden did not advance any of the lines of argument which are advanced in the present action as grounds for reduction of the decrees, the settlement agreement, and the missives. In short, Mr Ramsden cannot now challenge the prior judgment on such grounds, they all being grounds of defence which it was competent to plead in the first action but which he omitted to do. On that basis, the first plea-in-law should be sustained and the action dismissed.

[33] For completeness, however, a mere failure on the part of the pursuer to appreciate that he might have had other grounds to defend the first action

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does not in any way affect the applicability of the plea of “competent and omitted”. Effectively, the pursuer could only seek reduction on averments amounting to res noviter, namely facts which were not only unknown to him at the time of the decrees and deeds he seeks to reduce, but which could not have been known to him. The pursuer makes no such averments and thus the action must be dismissed.

II. The defender’s second plea-in-law: to the relevance

B

[34] In any event, the defender’s second plea-in-law should be sustained for the following reasons—so submitted Mr Thomson.

1. Consumer

C

D

E

F

[35] First, the present action proceeds on the footing that the pursuer considers that he contracted with the defender as a “consumer” for the purposes of the 2008 Regulations—albeit the pursuer makes no express averment to that effect.

[36] In art.2 of condescendence the pursuer avers that “in acquiring the property the pursuer was acting for purposes outside his business. He bought the property as a holiday home for himself and his family. When occupied it has been available to let by arrangement”. From the outset, these averments appear to be contradictory. First, it is averred that the property was to be “a holiday home for (the pursuer) and his family”. Secondly, however, it is averred that “when occupied it has been available to let by arrangement”. This averment appears to be an offer to prove that the occupancy of the property has been on the basis of the letting of the property (presumably to third parties rather than to the pursuer’s family). The pursuer cannot let the property to himself. A similar averment is made at the start of art.3 of condescendence: “the pursuer bought the subjects as a holiday home.”

[37] Mr Thomson made reference to certain averments made by the defender in answer—but the defender’s averments are of no moment for present purposes. I require to consider the pursuer’s averments—and to take them pro veritate.

[38] Mr Thomson also noted that in a separate action before this court (case reference A559/13) the pursuer seeks similar orders in relation to the property next door to the property with which the present action is concerned.

In that action too, the pursuer avers that he bought the property with which that action is concerned as a “holiday home”. Mr Thomson suggested that the pursuer cannot logically have bought these two properties, as a consumer, with a view to using both of them as holiday homes (for himself and his family).

His averments can only be seen as uncandid. The relevancy of his averments must be tested on the footing that he did not contract qua consumer in relation to either property.

[39] On that basis, any reliance which the pursuer seeks to place upon the 2008 Regulations is necessarily unfounded since they apply only to transactions by consumers. To the extent, therefore, that the action is founded upon the 2008 Regulations it is irrelevant.

[40] Even if (contrary to the foregoing) the pursuer does fall to be treated as a consumer, the action is nevertheless irrelevant for the following additional reasons.

2. Ownership of common property

G

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[41] Secondly, the de quo of the various grounds on which the pursuer seeks reduction of the decrees and deeds is that he has contracted to purchase the

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subjects on terms which will make him an owner of common property, which common property includes what the pursuer describes in averment as “a ‘sports ground’ and an area to the south of the ‘sports ground’ ”.

[42] In art.3 of condescendence, the pursuer makes averments with reference to the deed of conditions which conclude with the averment that “the common parts (i.e. those parts of the development) owned pro indiviso were thus sufficiently defined to enable them to be identified with precision”.

These averments are irrelevant—so submitted Mr Thomson. It is clear from the descriptions used that no specific property which was to form common property had been identified at the date of conclusion of missives or indeed at the date of the decrees and deeds which the pursuer seeks to reduce.

Importantly, at the date of the various grants of split-off dispositions in favour of other proprietors, no specific property which was to form common property had been identified. It equally necessarily follows that no common property was conveyed to the individual proprietors, with the result that the defender retains ownership of those parts of the development which have been conveyed to individual proprietors. On that basis alone, it cannot be said that the pursuer has contracted to become an owner of common property which includes the “sports ground” and other areas of land to which the pursuer refers. The fact that the defender now seeks to use such land for other uses simply reinforces that necessary conclusion. On this basis alone, therefore, the pursuer is bound to fail since the de quo of his action is unsound.

A

B

C

3. Relevancy

[43] Thirdly, the pursuer’s averments fail the test for relevancy. The pursuer no longer insists on any alleged breach of common law duty. It appears that the pursuer’s position might be that those duties were imposed on the defender by virtue of the 2008 Regulations. If that is the pursuer’s case then the averments are irrelevant because:

D

• for the reasons already given, the pursuer was not a “consumer”; and • the 2008 Regulations do not give rise to the imposition of enforceable duties as between the parties to this transaction.

[44] Further and in any event, the pursuer’s averments regarding the duties said to have been owed by the defender to the pursuer are irrelevant because: • the later averments in art.4 of condescendence about knowledge on the part of the defender of contaminated land” are irrelevant. They contradict the pursuer’s other averments which are to the effect that he is not offering to prove that the (ex hypothesi) common property is contaminated but merely that part of the common parts relating to the subjects “may be ‘contaminated land’ for the purpose of the 1990 Act” (art.6 of condescendence); and • that being so, the averments of actual or constructive knowledge of actual contamination have no proper basis in any factual averments made by the pursuer.

[45] Moreover the following averments made by the pursuer in art.4 simply serve to confuse the position even more: “This action does not contend that if the defenders had engaged in a misleading commercial practice, the contract would be null and void. It seeks to establish that if there has been a misleading commercial practice, then the general unfairness of the commercial term(s) in question and their

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effect on the parties’ intentions fall to be considered. The identification of an unfair commercial practice leads to consideration whether or not the parties have contracted under an essential error or such a degree of unfairness as to obviate the transaction. The requirement for effective Regulations is to meet the objective of Directive 2005/29/EC. The effect of the defender’s stance would be to deny consumers any remedy under the Directive, and require them to rely only on local authority action.”

[46] Those averments are irrelevant because:

B

C

D

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• they begin by inviting a consideration of the “general unfairness of the commercial term(s) in question”. The pursuer nowhere, however, specifies what term or terms he has in mind as being subject to such consideration; • the averments then appear to proceed upon the basis that the parties, rather than the pursuer alone, have “contracted under an essential error”. If, as the averments clearly appear to contemplate, the error in question (which itself is not identified in averment) was a mutual error then it is difficult to see how the law could impose duties of disclosure on the defender of the type condescended upon by the pursuer; • the averments nowhere identify what the “degree of unfairness” about the transaction is said to be; and • the invocation of a need for the provision of an effective remedy does not assist the pursuer since the 2008 Regulations plainly do not create or impose on the defender the duties which he sets forth in averment. The 2008 Regulations simply cannot be construed in the manner suggested by the pursuer.

[47] In art.6 of condescendence the pursuer avers that: “Since the date on which decree was granted in the first action, the pursuer has become aware that part of the common parts relating to the subjects may be ‘contaminated land’ for the purposes of the 1990 Act.” [48] These averments are irrelevant. Without a definite offer to prove that the alleged common property is contaminated land, the pursuer cannot have any grounds for the grant of what is, after all, the extraordinary remedy of reduction of the decrees or various deeds to which reference is made in the conclusions of the summons. An offer to prove merely that part of the common parts “may be” contaminated amounts to no more than saying the land might be contaminated or it might not. On that basis, the pursuer has periled his case on the weaker alternative, namely that the land in question is not contaminated. If it is not contaminated, the pursuer has no case and the action must be dismissed.

[49] In the remainder of art.6 of condescendence, the pursuer avers that: “[T]he defender took no steps to ensure, so far as it was reasonably practicable to do so, that the local authority was satisfied that the area of land to the south of the ‘sports ground’ was not ‘contaminated land’ for the purposes of the 1990 Act.” In the first instance, it will be recalled that the pursuer does not offer to prove that the land in question is contaminated but merely that it may be contaminated. Beyond that, however, the fact of the matter is that the pursuer admits the terms of the planning permission. There is no offer to prove that any condition of the planning permission has been breached. There has been no attempt by the pursuer to challenge (even to reduce ope exceptionis) the planning permission. That is an end of the matter and it is not open to the

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pursuer to seek to undo the planning permission effectively “by the back door” as his averments do.

[50] In art.7 of condescendence the pursuer avers: “The omission by the defender to provide the pursuer with information material to his decision as to whether to proceed with the purchase, and the defender’s representation to the local authority about its intentions for the area of land to the south of the ‘Sports Ground’ provide the exceptional circumstances in which reduction of the decrees granted on 10th October, 2012 may be granted.”

A

B [51] These averments are irrelevant.

• First, for the reasons already given, these averments justify the defender’s plea of competent and omitted being sustained; • secondly, and again for the reasons already given, there were no duties owed by the defender to the pursuer about “information material to (the pursuer’s) decision whether to proceed with the purchase’ ” • thirdly, the pursuer’s averments do not disclose any actionable misrepresentation on the part of the defender (indeed an earlier reference to “misrepresentation” has now been deleted and replaced by the word “representation”); • fourthly, even if these matters are taken at their highest, they could not ever amount to “exceptional circumstances” such as would justify decree of reduction being pronounced.

[52] The pursuer goes on to make the following averments in art.7: “Moreover, the omission by the defender to provide the pursuer with that information meant that the pursuer was unable to raise the issue of misleading omissions in the first action. . . .In the circumstances, it would be unconscionable for the defender to be permitted to continue to hold the decrees pronounced in the first action.”

C

D

[53] Those averments are irrelevant: • first, the pursuer does not aver that he was unable to raise the issue of misrepresentation (or representation) in the first action; • secondly, the pursuer’s averment that he was unable to raise the “misleading omissions” issue in the first action because of the omissions themselves is illogical. The pursuer’s position is that he became aware of the issue (see his averments at the start of art.6 of condescendence) at an unspecified time and for reasons which he has failed to identify/explain in averment, despite being called upon so to do (in ans.6).

[54] In art.7 of condescendence the pursuer avers that, “had the defender fulfilled its obligation and provided the pursuer with that information, the pursuer would have resiled from the missives whenever he was able to do so.”

The pursuer does not, however, identify any circumstances (including specifically any term of the missives) which would have entitled him to resile from the missives. In the absence of any such averment, his averment that he would have resiled is irrelevant.

[55] Overall, therefore, there is no relevant basis laid in averment for the grant of decree of reduction in terms of the first, second or third conclusions.

[56] For all of these reasons, the action should be dismissed—so submitted Mr Thomson.

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The pursuer’s response

[57] In response, Mr Campbell highlighted the pursuer’s pleadings and the authorities already mentioned above (which I do not propose to rehearse).

[58] Article 2 of condescendence sets out details of the first action. The pursuer avers, inter alia, that: “in acquiring the property the pursuer was acting for purposes outside his business. He bought the property as a holiday home for himself and his family. When occupied it has been available to let by arrangement”.

B

C

D

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[59] Article 3 relates to, inter alia, the development site, the subjects and the missives.

[60] In art.4 the pursuer sets out the duties which he alleges were owed to him by the defender in relation to the provision of information. It includes the averment that: “The existence of contaminated land being known, or which ought to have been known, to the defenders, required to be brought to the pursuer’s attention in the course of the transaction”.

Reference is made to the 2008 Regulations and to the Directive. It is also averred that: “The effect of the defender’s stance would be to deny consumers any remedy under the Directive, and would require them to rely on local authority action.”

[61] Article 5 of condescendence relates to the terms of the missives. The pursuer avers, inter alia, that: “The missives remain enforceable because they were founded upon by the parties within a period of two years from the date of entry. . . .The pursuer founded on the missives in the first action. He became the proprietor of common property in the manner herein condescended on.”

[62] In art.6 the pursuer avers, inter alia, that: “Since the date on which decree was granted in the first action, the pursuer has become aware that that part of the common parts relating to the subjects may be ‘contaminated land’ for the purposes of the 1990 Act. The area to the south of the ‘Sports Ground’ was, after the Second World War, and mainly after 1960, used as a landfill site.”

The pursuer also makes averments to the effect that the defender was aware of this past use and of the potential presence of “contaminated land” yet omitted to inform the pursuer.

[63] In art.7 the pursuer sets out his alleged basis for reduction. He avers, inter alia, that: “The omission by the defender to provide the pursuer with information material to his decision as to whether to proceed with the purchase, and the defender’s representation to the local authority about its intentions for the area of land to the south of the ‘Sports Ground’ provide the exceptional circumstances in which reduction of the decrees granted on 10 October 2012 may be granted”.

[64] The pursuer continues by averring in art.7: “Moreover, the omission by the defender to provide the pursuer with that information meant that the pursuer was unable to raise the issue of misleading omissions in the first action. The pursuer did not investigate the

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condition and history of the surrounding land in the course of the sale and purchase transaction in which he was engaged. He did not investigate the condition and history of the land lying south of the sports ground. He was not told about the condition and history, nor could he have discovered them, nor would it have been normal practice (save as to search of the title, which would not have shown them) for a purchaser of subjects such as Plot 4 to do so. In the circumstances, it would be unconscionable for the defender to be permitted to continue to hold the decrees pronounced in the first action.”

A

[65] Against that background, Mr Campbell argued that there was enough on record by way of averment by the pursuer for a proof before answer.

[66] In essence, Mr Campbell’s submissions for the pursuer were to the following effect:

B

• that a plea of “competent and omitted” was only available to a pursuer and was not open to a defender such as Santon; • that the pursuer’s pleadings were sufficient to amount to res noviter and disclosed exceptional circumstances justifying reduction; • that the pursuer offers to prove that he contracted as a “consumer”; and • that the pursuer’s claims based on the 2008 Regulations and the Directive were sufficiently supported by averment.

C

[67] Applying the test in Jamieson v Jamieson, it could not be said that the pursuer must necessarily fail.

[68] Accordingly, a proof before answer was appropriate—so submitted Mr Campbell.

D Discussion 1. First plea-in-law for defender—“competent and omitted”

[69] In relation to the present defender’s plea of “competent and omitted” it is important to bear in mind that in “the first action” Santon (the current defender) was the pursuer and Mr Ramsden (the current pursuer) was the defender. In this action those roles are reversed. Mr Ramsden is now the pursuer and Santon is now the defender. The views expressed in Earl of Perth v Lady Willoughby de Eresby’s Trustees, p.545, and in Maclaren, Court of Session Practice (1916), p.401, fall to be seen in the context of those role reversals.

[70] In my opinion, there is no impediment to a plea of “competent and omitted” being taken by Santon in this action.

[71] Applying the wording of Earl of Perth to this case, Mr Ramsden was bound, for his own protection, to state all his defences (in the first action) and if he omits anything, and judgment has gone against him, he has lost his opportunity. That judgment must take effect, although Mr Ramsden may have had a relevant competent, and well-founded plea, which he has not chosen or has omitted to state.

[72] In other words, Mr Ramsden cannot challenge a judgment regularly pronounced against him, on the ground that there was a defence which was competent to him but which he omitted to set up.

[73] The question still remains: should the plea of “competent and omitted” be sustained at this stage? Having considered the pleadings and the submissions of counsel, I can see no good reason to postpone a decision. A decision can be taken now on the basis of the pursuer’s averments.

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[74] Taking the pursuer’s averments pro veritate, the pursuer’s case must necessarily fail and the defender’s plea of “competent and omitted” falls to be sustained.

Res noviter veniens ad notitiam?

B

C

[75] I also agree with the defender’s’ submission that the pursuer has failed to make relevant averments of res noviter as described in the authorities. In any event the circumstances averred by the pursuer are not sufficient to justify reduction.

[76] Res noviter must refer to some fact which was not known and which could not, with reasonable care and diligence, have been known before. The pursuer requires to aver circumstances showing that he was excusably ignorant of how matters stood. He must give particulars of its discovery and of the circumstances which bear upon the possibility of his having acquired earlier knowledge of it.

[77] The pursuer’s averments in the present case fall short of res noviter.

[78] The pursuer’s pleadings do not disclose sufficient relevant and specific circumstances to justify reduction on the grounds of exceptional circumstances.

2. Second plea-in-law for defender—relevancy 1. Consumer?

D

[79] I agree with Mr Campbell that the pursuer has done enough to relevantly aver on record that he is a “consumer” within the meaning of the 2008 Regulations– (reg.2) and the Unfair Commercial Practices Directive (“the Directive”—art.2(a)). The pursuer’s averments of being a “consumer” are of doubtful relevancy but the pursuer has offered to prove them and they would be sufficient for proof before answer on that limited point.

2. Ownership of common property?

E

[80] I also agree with Mr Campbell in relation to the defender’s arguments relating to the alleged ownership of common property.The pursuer’s averments are of doubtful relevancy but he has offered to prove them. In the absence of agreement in relation to the underlying factual position it would be going too far too fast to decide that particular point against the pursuer at the relevancy stage.

3. Relevancy?

F

G

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[81] However, I agree with Mr Thomson that the pursuer’s averments are essentially lacking in relevance and specification for the following reasons.

[82] First, the pursuer has failed to make relevant averments of when and by what means he claims to have become aware that part of the common parts relating to the subjects may be “contaminated land”.

[83] Secondly, the pursuer’s averments about alleged “exceptional circumstances” are not sufficiently relevant or specific.

[84] Thirdly, the pursuer has failed to relevantly aver that there was any “material information” (as defined in the 2008 Regulations) which the defenders were under a duty to provide in relation to contamination of land.

[85] Fourthly, and in any event, the pursuer’s claims based on the 2008 Regulations and the Directive are not supported on averment. Neither the 2008 Regulations nor the Directive confer any direct right of action upon the pursuer in this action. Consumers now have certain “rights of redress” conferred upon them under Part 4A of the 2008 Regulations—but in relation

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to contracts entered into, or payments made, on or after 1 October 2014. The pursuer’s claims relate to earlier times. The missives were concluded on or around 23 December 2008.

[86] I agree with the defender that the 2008 Regulations do not give rise to the imposition of enforceable duties as between the parties to the transaction in this case. Regulation 29 of the 2008 Regulation also provides that: “(Except as provided by Part 4A, an) agreement shall not be void or unenforceable by reason only of a breach of these Regulations”.

[87] There are no relevant averments in the amended record to support the fourth conclusion of the summons or the pursuer’s third or fourth pleas-in-law.

[88] In the result, and for those reasons, the defender’s first plea-in-law, to the relevancy of the pursuer’s averments, should also be sustained.

A

B

Conclusion

[89] The defender’s plea of competent and omitted is well-founded. In any event, the pursuer’s averments are not sufficiently relevant and specific to support the claims made on record. Taking his averments pro veritate, the pursuer’s case must necessarily fail and his pleas-in-law should be repelled.

C

Decision

[90] For the reasons outlined above, I shall sustain the defender’s first and second pleas-in-law, repel the pursuer’s pleas-in-law, and dismiss the action.

[91] I shall reserve meantime the question of expenses.

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

For the defender: Thomson instructed by Burness Paull LLP, Solicitors, Edinburgh.

D

E

F

G

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A COURT OF SESSION

3 June 2015

Inner House (Extra Division) Lord Eassie, Lady Smith and Lady Clark of Calton B

MICHAEL LEONARD

Pursuer (Reclaimer)

against LOCH LOMOND AND THE TROSSACHS NATIONAL PARK AUTHORITY Defenders (Respondents) Evidence—Appeal—Pursuer failing to prove averments relating to accident—Whether Lord Ordinary ignored relevant evidence C

D

E

F

G

The pursuer raised an action seeking reparation from the defenders in respect of injuries he suffered in an accident which occurred on 3 July 2006 when he was 12 years old. After proof the Lord Ordinary assoilzied the defenders.

He held that the requisite mechanics of the accident had not been proved but he also held that the defenders were, in any event, not in breach of any duty owed by them as occupiers of the land on which the incident occurred.

The pursuer had been out with his parents and his sister on the eastern side of Loch Lomond. The family went for a walk along a single-track asphalt road from the car park to the pier. At the pier, they turned round and took a path through the forest to a viewpoint known as Craigie Fort. On the way down the hill they followed a path which formed a more direct route back to the car park. The pursuer was walking ahead of the rest of his family and disappeared from their view; when they next saw him some two or three minutes later, he was lying on the single-track road at the foot of the hill, which runs along the side of the loch, a short distance below the path. He had suffered injuries. At the proof, the pursuer could remember nothing of the accident and none of the members of his family had seen it happen. The path being followed by the pursuer descended towards the road at about 90° and then turned sharply to the left and then proceeded more gently towards the road. The path had been formed by the setting of naturally formed stones or small boulders into the soil and its surface was not even.

The pursuer sought to attribute the accident to the physical state of the pathway. But since no one saw the accident and the pursuer could remember nothing of it, the only way the mechanics of the accident could be proved would be by proof of primary facts enabling the requisite inference properly to be drawn. The Lord Ordinary held that the pursuer in this case had failed to do so. The pursuer reclaimed.

Counsel for the pursuer submitted that the Lord Ordinary had failed to narrate or set out the detail of what, she contended, were significant chapters of evidence. He had overlooked or misstated the evidence in those chapters.

First, he had overlooked passages in the evidence of the other members of the family to the effect that while the pursuer was with them, they were walking or ambling along and so was the pursuer. Secondly, counsel submitted that the Lord Ordinary had failed to set out the evidence of the family members respecting the state of the path the point at which the pursuer had disappeared from their view. Thirdly, the Lord Ordinary had failed to note that the mother of the pursuer had estimated an interval of 30 seconds and instead had taken the father’s evidence of an interval of two to three minutes. Fourthly, the Lord Ordinary had ignored evidence relating to the resting position of the pursuer’s 102

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body on the roadway. Fifthly, the Lord Ordinary ignored evidence that it was the immediate assumption of those who were there that the pursuer had lost his footing and fallen off the pathway on to the road. Lastly, the Lord Ordinary left out of account evidence from the pursuer’s father and from his sister respecting the finding of dirt on the pursuer’s body and clothing.

Held (1) that the leading contention advanced on behalf of the pursuer to the effect that the Lord Ordinary ignored or misstated relevant chapters of evidence was without substance, and it was not necessary for the Lord Ordinary to have narrated in detail the evidence of the family members before the pursuer disappeared from their view and after they had found him on the roadway; or to set out in detail counsel’s written submissions on the evidence respecting the cause of the unfortunate mishap (para.19); (2) that the Lord Ordinary was well justified in concluding that such primary facts as had been established in the evidence did not enable him properly to draw the inference that the event precipitating pursuer’s injuries had been that he tripped or lost his footing on the path (para.20); and (3) that the Lord Ordinary correctly concluded that the law was to the effect that there was no duty on an occupier of land to warn or fence against obvious dangers and the Lord Ordinary had been well entitled to regard the risk of tripping or slipping on the stone-pitched path as an obvious danger to which those using such a path required to be alert and to exercise appropriate care (para.25); and reclaiming motion refused.

A

B

C

Case referred to: Fegan v Highland Regional Council [2007] CSIH 44; 2007 S.C. 723; 2007 S.L.T. 651.

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 Eassie on 3 June 2015.

D

LORD EASSIE Introductory

[1] The pursuer and reclaimer in this action seeks reparation from the defenders in respect of injuries which he suffered in an accident which occurred on 3 July 2006, when he was 12-years old. Following a proof before answer confined to the questions of liability and contributory fault, the Lord Ordinary assoilzied the defenders. The primary ground upon which the Lord Ordinary rejected the pursuer’s claim was that the requisite mechanics of the accident had not been proved; but he also held that the defenders were in any event not in breach of any duty owed by them as occupiers of the land on which the incident occurred.

[2] On the day of the accident the pursuer went with his parents and his sister, who was then 16 years of age, on an outing to Balmaha, on the eastern side of Loch Lomond. Having parked their car in the car park in Balmaha the family went for a walk along the single-track asphalt road from the car park to the pier. At the pier they turned around and on their way back took a path known as the “Balmaha Millennium Forest Path” upon which they walked up a hill to a viewpoint known as Craigie Fort. Having taken in the views, the family then set off down the hill taking, at a fork in the way, a path which forms part of the West Highland Way, a long-distance walking route. That path is a more direct route back to Balmaha than the Balmaha Millennium Forest Path.

[3] As the Lord Ordinary sets out in his opinion [[2014] CSOH 38] after the family had descended some distance on the West Highland Way path the

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pursuer walked ahead of the other three members of his family and disappeared from their view. When next seen by them, some two or three minutes later, he was lying on the single-track road at the foot of the hill which runs along the side of the loch. The Lord Ordinary records that the pursuer: “[W]as found unconscious lying on his back on the far side of the singletrack road at the foot of the hill with his head at a 90-degree angle to the fence on the far side and his feet pointing to the middle of the road. He had his right leg under his left leg and his arms out to his sides, with the back of one hand on the road and the palm upwards, with the fingers slightly elevated. He had a large swelling in his right eye and dirt and gravel on his hair, clothing and hand. A passing doctor, a Dutch tourist who was an anaesthetist, rendered first aid to Michael (the pursuer) by putting a finger in his mouth and clearing his airways of dirt, gravel, blood and clear fluid.

Mr Leonard called an ambulance on his mobile phone. It arrived a few minutes later and transported Michael to the nearby car park, where he was airlifted by air ambulance and taken to the Southern General Hospital in Glasgow. He was found to have sustained a left acute subdural haematoma with associated small left contusion and minimal shift, a fracture of the right anterior cranial fossa, abrasions to his right arm, elbow, pelvic area, hip, knee and heel and left knee and heel, a swollen right eye, contusions, abrasions and cuts to his nose and right forehead and contusions on his right shoulder.”

[4] The pursuer could remember nothing of the accident. The Lord Ordinary summarises his evidence thus: “[4] Michael could remember nothing of the accident. The last thing he remembered was being at the top of the hill and starting to come down it at walking pace. His footwear consisted of a pair of white trainers. He next remembered waking up in a room in hospital. He had no idea how he ended up injured on the road.”

Because the pursuer had gone ahead and was out of their sight, none of his father, his mother or his sister saw what had occurred which unfortunately led to him sustaining the injuries which he suffered.

[5] At this point it is convenient to describe the relevant topographical features of the West Highland Way as it approaches the asphalt road upon which the pursuer was found lying. Below the point at which the pursuer had passed out of the sight of his family members, and as it comes towards the road, the path descends generally at about 90 degrees across any contour lines to a point a little above the road at which (as one descends) the path turns sharply to the left. Downhill from that turn the path proceeds at an angle to any contour lines, and thus at a more gentle gradient, towards the road.

Immediately above that turn in the pathway, the path consists of a “stonepitched path”. Immediately after the turn the surface of the path consists of gravel or aggregate. Thereafter the path again becomes a stone-pitched path for the final, short section of descent to the road. At the turn there is a large stone placed to form a water bar (to prevent water flowing down and scouring the gravel or aggregate section of the path).

[6] There were available to the Lord Ordinary various photographs of the locus, to which reference was made in the course of the evidence; and a moving image of the route up and down the hill was similarly available as a DVD. Additionally, the Lord Ordinary himself inspected the locus in the company of parties’ solicitors and counsel and walked over the route which had been taken by the family.

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[7] The Lord Ordinary was thus very familiar with the relevant topographical features. In his opinion he refers to a number of photographs and to the DVD as descriptive of those features. Although not all mentioned in the Lord Ordinary’s opinion, certain measurements were spoken to in evidence by Bridget Jones, the defenders’ head of visitor services, which are not disputed.

For completeness we record that in terms of vertical height difference the water bar stone at the apex of the turn is approximately 2.6 metres above the level of the asphalt road. Measured in a continuation of the line of the path prior to the turning, the distance from the outer edge of the water bar stone to the landward (as opposed to lochside) edge of the asphalt road is 5.7 metres. The width of the road itself is 3.4 metres. On a continuation of the same line, the ground between the apex of the turning and the asphalt road descends first gradually and then more steeply. The latter, steeper part was sometimes described in evidence and submissions as an “embankment”. The surface of the ground between the turn and the edge of the road consists of soil with vegetation, principally bracken, but also some small saplings immediately adjacent to the path where it turns at the water bar stone. With a view to assisting an understanding of our description of the locus we reproduce in an appendix to this opinion four of the photographs lodged in process [omitted from this report].

[8] Before the Lord Ordinary the defenders adduced expert evidence respecting the nature of a “stone-pitched path” and its construction. For present, explanatory purposes, it is sufficient to say that it is a traditional technique (dating at least to the times of the Roman Empire). It is now again commonly employed in forming paths in rural areas in order, inter alia, to avoid erosion by the rainwater and footfall, particularly on a gradient; and thereby also to provide the walker with a more secure surface upon which to walk. Very briefly, the technique involves the setting of naturally formed stones or small boulders—in the jargon referred to as “pudding stones”—into the soil. The technique intentionally does not seek to provide, or result in, the construction of the pathway of the regularity expected within a building or in a wholly urban setting. The broadly horizontal surfaces will be at varying angles. And the “risers” between any “steps” will vary in height.

A

B

C

D

The cause of the pursuer’s misfortune

[9] The pursuer seeks to attribute the accident which he suffered to the physical state of the pathway. As his counsel confirmed to us, the central and crucial averment on behalf of the pursuer is to be found in statement IV of the statement of claim [reclaiming print, p.6D–E]: “At or above the point where the path turned sharply left on its final descent to the road the pursuer tripped or lost his footing and fell from the path down a steep bank and onto Lakeside Road, thereby sustaining the loss, injury and damage hereinafter condescended upon.”

It was therefore necessary—as the starting-point in his claim against the defenders—for the pursuer to prove, on the balance of probabilities, that what initiated or precipitated the sequence of events leading to his being found in his injured state on the roadway was his having tripped or having lost his footing on the path at a point at or superior to the turn. Plainly, since the pursuer had no recollection of events and he had been out of the view of the other members of the family, and there were no others present, that exercise could only be accomplished by a proof of primary facts enabling the requisite inference properly to be drawn.

E

F

G

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[10] The Lord Ordinary records that before him certain indirect evidence was also relied upon by the pursuer as enabling that inference to be made. The Lord Ordinary summarises that evidence in paras 7 and 8 of his opinion: “There is therefore no direct evidence of what caused Michael to end up lying injured on the road. In these circumstances it was sought to rely on indirect evidence from which, it was submitted, an inference could be drawn about what happened to him. That evidence came from Dr Ian McLaren (62), a consultant in emergency medicine at Monklands Hospital, Airdrie and Andrew Petherick (62), a sport and leisure consultant from Bedford. The evidence of Dr McLaren (given by way of affidavit) was that on the balance of probabilities Michael’s injuries were consistent with a fall from a height. He thought it most unlikely that Michael’s injuries were caused by impact with a motor vehicle on the road as in that event he would certainly have expected serious leg injuries. He considered it far more likely that Michael sustained his injuries by falling down the embankment onto the road. He thought it was likely that Michael was travelling with some momentum when going down the path—that is to say, not walking. He accepted that he could have been running voluntarily or involuntarily as he had lost his balance and was being propelled down the embankment. On the assumption that Michael fell down the embankment from the downhill path he found it difficult to reconcile the fact that he travelled 3.4 metres to the opposite side of the road with his having only been walking on the path before his fall. It was pointed out that there was no evidence from the other members of the Leonard family that Michael had been running before he was out of their sight.

[8] The evidence of Mr Petherick was to the effect that anyone coming down the path would find it hard to control the speed of his descent and that tripping hazards in a sharp turn in the path above the embankment were not readily visible to the discerning walker. He said that if someone tripped above the embankment the likelihood was that he would fall forward onto the embankment and not the path because of the 90-degrees turn in the path immediately above the embankment and it would be quite possible for him to do a gymnastic roll, particularly if his momentum was increasing as he came down the path.”

[11] Having properly recognised under reference to certain authorities that it is of course open to a court to make findings on the causation of an accident by way of drawing a justifiable inference from other facts, the Lord Ordinary noted—on our reading, essentially as an example of a case in which the requisite inference could not be drawn—Fegan v Highland Regional Council. In that case the court was readily able to infer that the pursuer (Ms Fegan) had been injured by falling over a sea cliff but no justifiable inference could be drawn as to the matters which had led to Ms Fegan’s having, unfortunately, fallen over the cliff in question. The Lord Ordinary then concluded: “[11] In the present action, which went to proof on the issue of liability alone, the mechanics of the accident have not been proved. There is no evidence to prove the crucial averment that at the point where the path turned sharply to its left on its final descent to the road Michael tripped or lost his footing and fell down a steep bank onto the road. There is no evidence about precisely where any trip or fall occurred on the hill (even whether it occurred on the path), or what caused any such trip or fall. There are several possibilities which come to mind as well as tripping to account for Michael ending up lying on the road: he could have been running down the hill so fast that he could not stop running, he could have jumped from the hill onto the road, or something could have happened to him on the road itself to cause him to end up in the position on which he was found.

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What caused him to end up in that position must remain a mystery. That being so, his action must fail.”

A

The criticism of the Lord Ordinary’s conclusion on the mechanics of the accident

[12] In challenging the Lord Ordinary’s conclusion that the pursuer had failed to prove that the accident had been caused in the manner averred, counsel for the pursuer submitted that the Lord Ordinary had failed to narrate or set out the detail of what, she contended, were significant chapters of evidence. The Lord Ordinary had overlooked or misstated the evidence in those chapters.

Those chapters of evidence are catalogued in the written note of argument for the reclaimer under six heads. It is convenient and appropriate to consider each in turn.

[13] The first head refers to passages said to have been overlooked and which consisted of passages in the evidence of the pursuer’s father, mother and sister to the effect that while the pursuer was with them they were walking or “ambling” along; and that insofar as the pursuer had any recollection, he too thought he had been proceeding at a walking pace. In our view it is incorrect to say that the Lord Ordinary has overlooked this evidence. As respects the pursuer’s testimony, we have quoted above para.4 of the Lord Ordinary’s opinion in which the Lord Ordinary records the pursuer’s recollection of coming down the hill at a walking pace. Similarly the Lord Ordinary finds that when the pursuer left the immediate company of his family he “walked ahead”.

[14] Secondly, counsel submitted that the Lord Ordinary had failed to set out the evidence of the family members respecting the state of the path below the point at which the pursuer had disappeared from their view and the difficulties which they said they had experienced in negotiating it. However, as counsel for the defenders pointed out, the Lord Ordinary not only had before him the photographic materials respecting the path but also had the benefit of his accompanied site inspection. There is no suggestion in the evidence that on the day of the accident the condition of the path was in any material respect different from its state at the times when it was photographed or inspected by the Lord Ordinary. It may be added that, insofar as any family member expressed any real difficulty in negotiating the path, this was at the stage at which they were hurrying to reach the pursuer whom they had seen lying on the roadway. Further, it is evident from para.25 of the Lord Ordinary’s opinion that he well appreciated that the path in question presented the risks of tripping or slipping inherent in any hill path if care were not taken. We therefore find that this criticism also lacks merit.

[15] The third point advanced in this branch of the submission on behalf of the pursuer concerned the Lord Ordinary’s description of the time between the pursuer’s disappearance from his family’s view and their subsequent sighting of the pursuer lying unconscious on the roadway. The pursuer’s mother had estimated an interval of 30 seconds and the Lord Ordinary had failed to note that in his opinion. He had instead taken the father’s evidence of an interval of two to three minutes. We observe, as did counsel for the defenders, that while Mrs Leonard initially offered an estimate of some 30 seconds, she later, and perhaps understandably, accepted in her evidence that such an estimate might be wrong and she did not demur from her husband’s view of the lapse of time. Estimates of time are notoriously difficult to make, particularly in circumstances such as those of the present case. The precise length of the short time which elapsed between the pursuer walking out of sight of the rest of the party and next being seen lying on the roadway is in

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many ways of no materiality. Counsel for the pursuer was unable to advance any reason to the contrary.

[16] Fourthly, it was contended that the Lord Ordinary had ignored evidence relating to the resting position of the pursuer’s body on the roadway.

But, as members of the Bench pointed out to counsel during her oral submissions, the Lord Ordinary made detailed findings respecting the position of the pursuer’s unconscious body. We have already quoted these. Counsel did not seek to challenge the accuracy of the Lord Ordinary’s findings in this respect. Under this head, the note of argument makes reference to the evidence of Dr Ian McLaren, a consultant in emergency medicine, and Mr Andrew Petherick, a leisure and sports consultant. But they were not witnesses to the facts of where the pursuer’s unconscious body was found. Counsel for the defenders observed, in our view rightly, that since the Lord Ordinary had set out fully his findings as to the position of the pursuer’s body when he was found and the accuracy of those findings was not open to challenge, it was hard to see that the location of the body (some 9 metres from the turn in the path) did other than militate against the making of any inference that the pursuer had tripped or lost his footing while on the path.

[17] The fifth head of criticism is that the Lord Ordinary ignored: “. . . evidence that it was the immediate assumption of those who were there and saw what happened before and after the pursuer went out of sight that he had lost his footing and had fallen over the embankment to the road”.

As counsel for the defenders observed in his response, the assumptions formed by the pursuer’s father, mother and sister, all of whom did not see what happened to the pursuer, could only be views reached from their impression of some of the primary facts now before the court. In deciding what inferences were to be drawn from those primary facts, the assumptions of the family members were not relevant. Indeed, it would have been wrong for the Lord Ordinary to have attached weight to them. We agree with those observations. We would add that insofar as Mrs Leonard and the pursuer’s sister indicated in their evidence an assumption—not simply that the pursuer had somehow sustained a fall from the embankment onto the roadway, but that he had indeed tripped on the path—it is far from clear that this was a contemporaneous conclusion. For what it may be worth, the account given by the pursuer’s father to the emergency services was that the pursuer “has fell off a cliff and he’s unconscious”. The pursuer’s father’s immediate assumption was thus that the pursuer had fallen from the embankment and not that he had sustained a trip or fall on the pathway.

[18] Lastly, it is said on behalf of the pursuer that the Lord Ordinary left out of account evidence from the pursuer’s father—and to a limited extent from his sister—respecting the finding of dirt on the pursuer’s body and clothing. In our view it is again not correct to say that the Lord Ordinary overlooked that evidence. As already narrated, he records as a finding in fact that the pursuer had, “dirt and gravel on his hair, clothing and hand”. But in any event, as counsel for the defenders pointed out, the fact that the pursuer had dirt and gravel on parts of his body and clothing tells one little, if anything, as to the circumstances in which he came to be lying on the roadway; in particular, it does not assist in any respect in showing that the pursuer tripped or lost his footing while on the pathway.

[19] In these circumstances we consider that the leading contention advanced on behalf of the pursuer to the effect that the Lord Ordinary ignored or misstated relevant chapters of evidence is without substance. In her oral

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submissions counsel made complaint that the Lord Ordinary had not narrated in detail the evidence of the family members before the pursuer disappeared from their view and after they had found him on the roadway; and that the Lord Ordinary had not set out in detail her written submissions on the evidence respecting the cause of the unfortunate mishap. In our opinion there was no need for the Lord Ordinary to do so. The Lord Ordinary properly addressed himself to what was relevant and material and in doing so did not omit evidence of any relevant fact. Despite invitation from the Bench, counsel for the pursuer was unable to say what primary fact or facts she contended the Lord Ordinary ought to have found, but did not find, and which, if found, would have directed the Lord Ordinary to drawing the inference that the pursuer tripped or lost his footing on the path. Counsel further accepted that she was quite unable to say at what point on the path she contended that the pursuer tripped or otherwise lost his footing. She thus could not say what particular feature, if any, caused the pursuer to trip.

[20] In these circumstances we consider that the Lord Ordinary was well justified in concluding that such primary facts as had been established in the evidence did not enable him properly to draw the inference—crucial as the first step in the case advanced against the defenders—that the event precipitating the pursuer’s injuries was that he tripped or lost his footing on the path. The Lord Ordinary was equipped, not only by way of photographic materials but also from his inspection of the locus, with direct knowledge of the relevant topography. While at times counsel for the pursuer sought to describe the path, at its turn, as bordering on some almost cliff-like drop, it is clear that a significant area of ground lay between the turning point and the roadway. The photographs taken a little later in the summer of 2006 show it to be covered with vegetation. Dr McLaren’s expertise as a medical practitioner could no doubt assist in excluding as a cause of the accident a collision with a motor vehicle. To what extent, as an expert, he might go beyond that may be debatable but in any event he had understandable difficulty in comprehending how someone walking on the path who sustained a trip or fall could end up in the position in which the pursuer did. Mr Petherick (again without expertise in this field) had to postulate some apparent form of gymnastic roll. For our part in addition to, or perhaps more accurately in elaboration of, the real possibilities canvassed by the Lord Ordinary, it is evident that the pursuer, a 12-year-old boy, may have decided to take a shortcut down to the roadway and in doing so came to grief in negotiating the embankment. Or he may have jumped from the embankment and landed awkwardly hitting his head on the roadway. Or he may have been running. One simply cannot tell.

[21] Further, even if the primary facts might allow the necessary inference to be drawn, it is in our view plain that they do not compel that inference.

Counsel for the pursuer did not submit to us that no reasonable trier of fact could fail to draw that inference or that the Lord Ordinary was “plainly wrong” in not doing so.

[22] Accordingly, we must conclude that on this primary issue respecting the mechanics of the accident, the argument for the pursuer in this reclaiming motion fails. For that reason the reclaiming motion must be refused.

[23] It is therefore unnecessary for us to give any detailed exposition of the pursuer’s submissions on whether the Lord Ordinary was in error in holding that—on the important, but un-established, assumption that the pursuer did somehow trip or lose his footing on the path—no liability accrued to the defenders. However, putting matters very briefly, we are satisfied that the Lord Ordinary was not in error in that respect.

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[24] The approach of the Lord Ordinary was first to consider whether the stone-pitched path, which had been put in place, contained defects or departures from normal expectations in such a path. The defenders tendered expert evidence respecting the construction of stone-pitched paths from Bridget Jones and Mr Douglas Baird. Those witnesses were, in our view, plainly well qualified to give that expert testimony. By contrast, Mr Petherick was, on any view, much less qualified to give expert evidence on the matter. We consider that, for the reasons which he gives, the Lord Ordinary was fully entitled to reject the evidence of Mr Petherick and to hold that the path in question had been constructed to and met accepted standards for stone pitched paths.

[25] Having reached that conclusion, the Lord Ordinary reviewed the authorities and correctly concluded that the law is to the effect that there is no duty on an occupier of land to warn or fence against obvious dangers. Insofar as a stone-pitched path—as in the case of any rural path—inherently presents some risk of tripping or slipping, the Lord Ordinary was in our view well entitled to regard such as an obvious danger to which those using such a path required to be alert and to exercise appropriate care. Counsel for the pursuer sought to make some exception—and to distinguish Fegan v Highland Council—on the basis that in the present case the path, at its turn, took the walker to the brink of some precipitous drop, which required to be fenced. But the Lord Ordinary had the benefit of his own inspection of the locus; and for our part, we do not consider that any of the still or moving images in the case, or the accepted relevant vertical and horizontal dimensions contained in the evidence before the Lord Ordinary, give credence to counsel’s somewhat extravagant description of the sloping of the land between the turn in the path and the road.

[26] Accordingly, we do not find any error in the conclusions reached by the Lord Ordinary. For all these reasons the reclaiming motion must be refused.

For the pursuer: Cherry QC, L Milligan, instructed by Bonner Accident Law, Solicitors, Edinburgh.

For the defenders: Milligan QC, Pugh, instructed by Harper Macleod LLP, Solicitors, Edinburgh.

F

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A COURT OF SESSION

25 June 2015

Outer House Lord Bannatyne SF

Pursuer

B

against QUARRIERS

Defenders

Limitation of actions—Triennium—Historical physical abuse said to have been suffered by pursuer while in care—Action raised long after time bar expired—Application to allow action to proceed—Whether discretion should be exercised—Prescription and Limitation (Scotland) Act 1973 (c.52), s.19A Section 19A of the Prescription and Limitation (Scotland) Act 1973 provides: “(1) Where a person would be entitled, but for any of the provisions of sections 17, 18, 18A or 18B of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision.

(2) The provisions of subsection (1) above shall have effect not only as regards rights of action accruing after the commencement of this section but also as regards those, in respect of which a final judgment has not been pronounced, accruing before such commencement.

(3) In subsection (2) above, the expression ‘final judgment’ means an interlocutor of a court of first instance, which, by itself, or taken along with the previous interlocutors, disposes of the subject-matter of a cause notwithstanding that judgment may not have been pronounced on every question raised or that the expenses found due may not have been modified, taxed or decerned for; but the expression does not include an interlocutor dismissing a cause by reason only of a provision mentioned in subsection (1) above.

(4) An action which would not be entertained but for this section shall not be tried by jury.”

The pursuer raised an action in 2004 in respect of injuries allegedly sustained between 1965 and 1971 while he was a resident in a care home run by the defenders. The defenders pled that it was time barred. A procedure roll debate was heard and the pursuer pled that the action should be allowed to proceed in terms of s.19A. A preliminary proof in relation to that plea only was allowed.

The question before the court was whether it was equitable to allow the claim to proceed?

The pursuer claimed physical abuse and humiliation by a particular member of staff while he was resident and that the defenders were vicariously liable for her actings.

The pursuer claimed that when he reached a place of safety after he left the home he ceased to have any memories of the abuse and that the process by which that occurred was not a conscious decision on his part but was an involuntary process known as dissociative amnesia. He averred that until 2003 he had no memory of the abuse and led a normal life, but then he saw a programme on TV about Quarriers after which he obtained records from

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Quarriers about his stay there and the effect of reading them brought back the memories. As a result he felt suicidal and his whole life changed so that he was unable to work or go out.

Counsel for the pursuer submitted that the pursuer had forgotten by a process other than ordinary forgetting that the abuse had occurred until 2003. Although the pursuer and the defenders suffered prejudice as a result of the delay between the expiry of the triennium and the raising of the action, in the whole circumstances of the case the relative weight of the respective prejudice was such that it was equitable for the court to allow the pursuer to proceed.

Counsel for the defenders argued that it was not equitable to allow the action to proceed given the material prejudice that the defenders had suffered principally given that the member of staff said to have delivered the abuse had died in 1980, shortly after the expiry of the triennium. He also argued that the pursuer had failed to prove the key averments of dissociative amnesia. The loss of evidence in this case was grave, particularly since the single person said to be the abuser had died and would not be able to give evidence relating to the matter and available records were no substitute for her evidence. Further, the events were more than 33 years old before the action commenced and more than 43 years old by the preliminary proof.

Held (1) that the equitable factors in favour of the exercise of the discretion in favour of the pursuer were far outweighed by the significant prejudice to the defenders if the action were to proceed, and if it did proceed the defenders could not be given a fair trial (para.146); (2) that the complaint related to a culture put in place by the member of staff within the defenders’ premises and details of daily life long ago would have been forgotten and would be incapable of retrieval and as a result, a marked deterioration in the quality of justice would exist and in the instant case, considering how stale it was the decline in the quality of justice would be material (para.160); (3) that the delay in bringing the instant action caused further prejudice in that it would be difficult to reconstruct the social attitudes of the 1960s and this again would lead to a serious decline in the quality of justice (para.163); and (4) that the defender’s position had been significantly prejudiced by changes in the law effected by the authorities which had taken place since the expiry of the triennium period (para.170); and permission refused for the pursuer to bring the instant action.

E Cases referred to:

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A v Hoare [2008] UKHL 6; [2008] 1 A.C. 844; [2008] 2 W.L.R. 311; [2008] 2 All E.R. 1; [2008] Adams v Bracknell Forest Burgh Council, 2004 UKHL 29; [2005] 1 A.C. 76; [2004] 3 W.L.R. 89; [2004] 3 All E.R. 897 A S v Poor Sisters of Nazareth, 2008 S.C. (H.L.) 688; 2008 S.L.T. 561 B v Murray, 2004 S.L.T. 967 B v Murray (No.2), 2005 S.L.T. 982 B v Nugent Care Society [2010] 1 W.L.R. 516 Brisbane South Regional Health Authority v Taylor [1996] 186 C.L.R. 541 Forsyth v A F Stoddard & Co Ltd 1985 S.L.T. 51 Gage v HM Advocate [2011] HCJAC 40; 2012 S.C.C.R. 161 Kennedy v Cordia (Services) Ltd [2014] CSIH 76; 2015 S.C. 154; 2014 S.L.T. 984 Lannigan v Glasgow City Council, 2004 G.W.D. 26–562 Lawson v HM Advocate [2009] HCJAC 58; 2009 S.C.C.R. 666; [2009] J.C. 336

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Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 A.C. 215; [2001] 2 W.L.R. 1311; [2001] 2 All E.R. 769 Trotman v North Yorkshire County Council [1999] L.G.R. 584.

A

The full circumstances of the case and the arguments of counsel are to be found in the following opinion of Lord Ordinary which was issued on 25 June 2015.

LORD BANNANTYNE B

Introduction

[1] The pursuer who was born on 22 April 1958 raised an action, which was signetted on 17 December 2004, against the defenders in respect of injuries allegedly sustained between 1965 and 1971 while he was a resident in a care home run by the defenders.

Procedural history of the action

[2] Following being signetted, by interlocutor dated 30 May 2006, the cause was appointed to the procedure roll on the defenders’ first and second pleasin-law which were in the following terms: “1. The action being time barred it ought to be dismissed.

2. The pursuer’s averments being irrelevant and lacking in specification, the action should be dismissed.”

[3] A procedure roll debate was heard on 23 June 2006 and the Lord Ordinary thereafter having resumed consideration of the cause on 10 October 2006 issued the following interlocutor: “Refuses the pursuer’s motion for a proof before answer leaving all pleas standing; allows the parties a preliminary proof of their respective averments on record in respect of the pursuer’s fifth plea-in-law only; appoints said preliminary proof to proceed on [. . .]; grants diligence for citing witnesses and havers; reserves, meantime, the question of expenses.”

The pursuer’s fifth plea-in-law was in the following terms: “Esto the action is time barred (which is denied), it being equitable in terms of s.19A of the Prescription and Limitation (Scotland) Act 1973 to allow the pursuer to bring the action, proof should be allowed.”

[4] Section 19A of the Prescription and Limitation (Scotland) Act 1973 (the 1973 Act) provides as follows: [His Lordship quoted the section as set out above and continued:] [5] After sundry procedure, including a reclaiming motion challenging, on behalf of the pursuer, the interlocutor of 10 October 2006, which was refused by interlocutor of 18 February 2010, a preliminary proof in respect of the fifth plea-in-law was again allowed in terms of an interlocutor of 7 November 2012.

[6] There was further sundry procedure involving the discharge of the said preliminary proof. Finally, by interlocutor dated 31 January 2014, a preliminary proof in respect of the said issue was again allowed.

[7] Thus the present matter came before me for a preliminary proof in which the pursuer sought the court to exercise in his favour the said power in terms of s.19A of the 1973 Act. [8] The question for the court is accordingly this: Is it equitable to allow the pursuer’s claim to proceed? The onus in relation to this issue rests with the pursuer.

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The court’s approach to the merits of the claim

[9] It was a matter of agreement between the parties that the correct approach for the court at a preliminary proof was adopted by Lord Johnstone in B v Murray, namely: a preliminary proof was not an appropriate forum for ascertaining the truth and reliability of the averments which formed the basis of the pursuer’s substantive case. Rather it was parties agreed position that I should proceed on the hypothesis or assumption that the abuse complained of by the pursuer did in fact occur. The court should make no findings in fact in relation hereto. In light of the foregoing agreement there was little cross-examination of the pursuer regarding the events which he spoke to as occurring while a resident in the defenders’ care. However, it was also accepted that the court would require to assess the cogency of the pursuer’s evidence.

The pursuer’s substantive case

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[10] As a matter of background it is appropriate at this stage to set out the core elements of the pursuer’s substantive case as set out on averment and spoken to by the pursuer in evidence. The pursuer complained that while residing in cottage 20, between 1965 and 1971, within the defenders’ home he was physically and mentally abused by the house parent in the said house a Miss D. In particular at night, if he was caught talking in his bedroom, Miss D would call him down and spank him on the bare bottom. He would then be put in a shed which was dark and left for periods of up to an hour. The shed was locked. This happened on numerous occasions. The spanking was very sore and he was terrified by being locked in the dark. Miss D was aware that he was particularly scared of the dark.

[11] Beyond the foregoing the pursuer also complained of what might be described as emotional abuse, namely: that on occasions he was made to call Miss D “mummy” and he did not like this as his own mother was alive at the material time.

[12] On occasions Miss D made him eat all the food that was served to him even if he did not like it. He had to finish everything on his plate.

[13] He had a problem with bed-wetting and on occasions Miss D would humiliate the pursuer regarding this in front of other children who were residents in the home. He in particular referred to an incident which had occurred while he and other children from the home were on holiday at a house in Turnberry.

[14] The pursuer’s case against the defenders was founded on the defenders’ vicarious liability for the actings of Miss D. The pursuer’s pleadings were that Miss D had breached the following common law duties: “[T]o exercise the degree of skill and care to be expected of a reasonably careful parent in looking after children entrusted to her care, such as the pursuer. In particular it was her duty to take reasonable care for the safety and wellbeing of the children in her care. It was her duty to take reasonable care to employ a suitable discipline regime which did not involve excessive beatings. It was her duty to take reasonable care not to use as part of a discipline regime the repeated locking up of children who were afraid of the dark, such as the pursuer, in a dark room for long periods of time.”

[15] So far as loss, injury and damage is concerned the position averred and spoken to in evidence by the pursuer was of long-term psychological damage resulting from the treatment he had received at the said time.

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The pursuer’s core position on averment and in evidence regarding s.19A

[16] The pursuer’s position can be summarised as follows: “When he came to leave the home at the age of 13 and reached a place of safety (he had returned to live with his father) he ceased to have any memories of the abuse he had suffered. The process by which that occurred was not a conscious decision on the part of the pursuer to avoid the memories of abuse or otherwise to put them out of his mind. It was an involuntary process known as dissociative amnesia” (see: art.7 of the condescendence at pp.21E–22B).

B Evidence The pursuer

[17] The pursuer gave evidence regarding the abuse he had been subjected to

by Miss D during his time in Quarriers, which evidence was in line with the averments on record. I do not detail his evidence on these matters as for the purposes of this proof I assumed he had been abused.

[18] As to his life after leaving Quarriers he said this: he was married in October 1980; he had five children; he had a number of jobs but was generally in employment; he described enjoying life and leading what might be described as an ordinary, unremarkable life.

C

2003

[19] His position was that until 2003 he had no memory of the abuse (hereinafter referred to as “the bad stuff”). He then described watching a Frontline Scotland programme about Quarriers. He then wondered if Quarriers had records about him. He obtained these (it was accepted at all hands that these were entirely anodyne in nature). He then went to Epsom on a training course for a job and read the records in his spare time and said the effect was: “as if opened door”. He described going up the M25 and intending to kill himself. He was at this point admitted to Penrith Hospital. He said he broke down crying and said that he had been abused at Quarriers. He then described that since that time there had been a big change in his life: he did not work; did not go out; he really did nothing. He described the abuse playing “like a video”.

D

E Cross-examination of the pursuer

[20] He described seeing the bad stuff constantly in Epsom. In crossexamination he spoke of being sexually abused by another boy while at Quarriers (he had not mentioned this in examination in chief). When asked about not having memories pre 2003 he said: “It was blocked out—when left Quarriers with father—all things shut out—all bad things.”

F

The pursuer’s medical records

[21] The pursuer was taken through his medical records in some detail by senior counsel for the defenders and entries put to him. He was asked about suicidal thoughts pre–2003: said one occasion but was not intending to kill himself. He was asked about suffering from depression in 2002. He did not remember some of what was put to him in the records. In particular he said he had no memory about considering killing himself in 2002 by CO poisoning by using his car. He accepted he had a personality disorder.

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[22] He denied attempting suicide at age 15 and then said he may have said that to doctors but this was just messing about—not a real attempt (same position as in relation to other attempted suicide referred to in records).

[23] He accepted that when asked about the memories by people such as doctors and other medical professionals he would say this: “blocked out”, “blanked out”—he said that as left Quarriers with father—he had no memories of the journey home—and his memory had been blocked out and it was like “a shutter coming down”.

[24] When asked again about records of attempted suicides—he said, “don’t think I tried to commit suicide” and said, “don’t remember saying that”. The pursuer, when the issue of “attempted suicides” referred to in the records was raised with him, would not accept he had attempted suicide.

[25] When asked about running away from Quarriers the pursuer accepted that on two occasions he had run away and gave some details about both occasions. He said that these memories had returned to him only after the TV programme in 2003. His position was that they did not result from abuse, but for other reasons.

[26] When asked about his father hitting him, the pursuer maintained despite medical records to the contrary that his father had not hit him.

[27] When asked about bullying at Quarriers, he said references in the medical records relative to bullying did not relate to Quarriers and then gave this answer in the context of being asked about the issues of references to bullying and running away in the pre–2003 medical records: “Memories of Quarriers blanked out—shutters came down and memory blocked out day drove off with father.”

The answer fitted in with the position senior counsel for the defenders had earlier put to him about the fairly precise way he always described forgetting.

Answers of this type, using these phrases were repeated a number of times in his evidence.

[28] Senior counsel for the defenders took the pursuer through the medical records relating to his admission to Penrith Hospital in some detail. The pursuer maintained his position that he clearly remembered saying to the staff there that he had been abused, although this was not mentioned in the records.

[29] When asked what in the records had triggered his memories he answered: “seeing programme and seeing records was the unlocking of the door”.

[30] With respect to the pursuer’s re-examination I will discuss this later in this opinion.

[31] The pursuer’s position overall regarding bullying, running away, attempted suicides and being hit by his father was as set out by senior counsel for the defenders and I set this out later in my opinion. I have attached as an appendix to this opinion [omitted], three tables detailing the places in the medical records which related: first to his bullying and running away; his being hit by his father; and his attempts to commit suicide pre age of 21.

[32] The pursuer in his evidence spoke to his returning to Quarrier’s on a number of occasions between 1971 and 2003 without this causing the memories of the bad stuff to return.

Non-expert evidence

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[33] The pursuer’s wife gave evidence, which was in fairly short compass: principally she spoke to the complete change in the pursuer since 2003 and described him since then as being a totally different person. The only other

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piece of evidence of any moment which she gave was this: the pursuer did not say to her why he wanted his Quarriers records. She was not cross-examined.

[34] Mr Gary Thomson, the pursuer’s instructing solicitor, gave evidence about seeking to find four persons who it was understood had been residents in cottage 20 while the pursuer was there. The results of his enquiries had been: one was dead; one remained untraced; one who on an unsolicited basis had been approached, Mr A had been upset and distressed by the unsolicited approach and a fourth had been discovered and it was hoped would give evidence. (This was Mr J and he did give evidence under reservation of all issues of competence and relevance.)

[35] Mr J gave evidence on behalf of the pursuer. He was a resident at Quarriers in cottage 20 at the same time as the pursuer. His evidence as to abuse by Miss D was somewhat different from the pursuer’s: his position— smacked by her during the day not at night and he remembered being placed in the shed but this was after school and before tea. He was not cross-examined.

[36] Evidence was given by Josephine Bell, who was the present after-care worker and archivist at Quarriers and was in charge of their records. She said that records were digitised. In answer to a question could she find records of persons in cottage 20 she said this: It would be very difficult, records could only be searched by names of individuals and were not cross-referenced by cottages in which they stayed. In any event she described the records as not very detailed. She accepted that software could be updated but did not go beyond that. She was wary about the idea of unsolicited approaches. She described it as being very emotional talking about childhood. She accepted that in relation to a government programme “Time to be Heard” there had been contact with certain former residents.

[37] Claire Crawford, a solicitor who had acted for Quarriers gave evidence.

She described how when cases were intimated she sought information from Quarriers’ archivist and from a Mr Dunbar who worked at Quarriers for a long time, who could on occasions point to where she might get information and be able to tell her whether people were alive. She advised that there were no documents which related to specific cottages.

[38] Mr Bill Dunbar, who had been referred to by Miss Crawford, gave evidence. He had worked at Quarriers in various capacities between 1962 and 1997. When asked whether he could give an insight into what happened in particular cottages: he said no. He said each cottage was individual and had its own rules. He remembered Miss D and could remember her taking a particular interest in a particular child and helping him. He was not able to assist with names of home assistants, he said they tended to come for short periods and move on. He had no recollection of the home assistants in cottage 20 named in No.7/26 of Process. In cross-examination he described Miss D as “old school”. He said at the time corporal punishment was used and involved smacking on the bottom. With respect to codes relative to punishment at the time he referred to No.7/24 of Process.

A

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F

Expert evidence

[39] The expert evidence given on behalf of the pursuer came from Professor Freeman. It was evident he was an extremely well-qualified expert regarding the issues which arose in the instant case. He had a wealth of practical experience. He had been involved in both the Piper Alpha and Lockerbie disasters. He had regularly prepared expert reports and given expert evidence in court. He spoke to and maintained his position as set out in his reports Nos. 6/5, 6/6 and 6/11 of Process. He described the pursuer as being severely

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distressed during the course of the interview with him when discussing the abuse. He described the pursuer as fairly typical of those who had suffered trauma saying about one-third of such suffered from amnesia. The amnesia was a protective factor. It was important for the purposes of diagnosis of dissociative amnesia, that the memories had come flooding back. This supported the diagnosis.

[40] Professor Freeman dealt at some length with the concept of false memory syndrome. For reasons which I articulate later in this opinion it is not necessary to set out in detail this evidence as it did not become an issue, due to a change in the views of Dr Janet Boakes (the defenders’ expert).

[41] He described the process that had been at work in the pursuer as this: repression of memory, which was an unconscious process. Thus he was suffering from dissociative amnesia. He said the following facts supported this diagnosis: • because his account was consistent over interviews with a number of experts • when now talks about Quarriers his memories are fairly complete • memories came back in a rush, not developed over a period in therapy.

[42] With reference to his second report No.6/6 of Process he set out in some detail the debate about recovered memory. Again for reasons I will elaborate upon later in this opinion. I do not require to set this evidence out in detail.

[43] Professor Freeman’s position can be summarised by reference to this section of No.6/6 of Process: “1.13 In the many patients I have seen it does not appear that the forgetting/repression occurs shortly after the traumatic events usually when the individual has attained a place of safety but it is difficult to be certain as most patients cannot say when they could no longer remember. I have not come across any patient who was able to give an account where they remembered until adulthood and then forgot/repressed their memories. In my opinion on the balance of probability (the pursuer) no longer had access to his traumatic memories from some point shortly after he left Quarriers homes and certainly well before his 18th birthday.

2.1 In my opinion this is the mechanism that has operated in (the pursuer’s) case. As documented in my main report there is no evidence that (the pursuer) recovered his memories during therapy or by suggestion, they were triggered by the television programme that he watched and then by receiving his notes.”

His position regarding Dr Boakes’ evidence can be summarised thus: “3.1 As far as I can determine from Dr Boake’s report there is no scientific evaluation of the nature of (the pursuer’s) memory, of his forgetting or of the recovery of his memories. No scientific evidence is presented.

3.2 In my opinion there is a clear difference between simple forgetting, conscious avoidance of memories and dissociation/repression. In my opinion it is the latter that has operated in (the pursuer’s) case and this is an unconscious, automatic process not under the individual’s control.

3.3 The statement by Dr Boakes that the memories were always there is of course correct, if they were not there (but not accessible) then they could not be remembered. The fact that Dr Boakes concedes this is important because it indicates that (the pursuer) was not simply making up stories about his past experience.”

[44] Turning to his cross-examination, much of this dealt with narrowing down the issue in the case between the experts:

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• he accepted Dr Boakes’s position at the time of proof was that not all recovered memories were false; • he accepted that not all recovered memories were true; • he accepted that in order to test whether someone was reliable about his forgetting one could look at his medical records to test falsity or accuracy; • he accepted the pursuer suffered from a personality disorder; • he accepted the pursuer suffered from persistent depressive disorder; • he accepted that there was a debate about some parts of the definition in DSM V of dissociative amnesia; • he accepted that to make the diagnosis of dissociative amnesia it was selfevident that in the pursuer’s case he had to show that he did forget between 1971 and 2003; • he accepted to make the diagnosis the process had to be more than ordinary forgetting; • he accepted that the question of whether the pursuer did forget during this period was a question for the court and not for psychiatrists; • he accepted that in order to reach his diagnosis of dissociative amnesia he had to hold the opinion that the pursuer was giving honest and accurate information.

[45] Senior counsel for the defenders then took the professor to a number of points relative to dissociative amnesia to seek to highlight points of agreement between the experts. The degree to which agreement was reached I will detail in the discussion section of this opinion.

[46] Dealing with borderline personality disorder Professor Freeman accepted that persons diagnosed with this disorder often exhibited inconsistency in accounts. The professor in the course of his evidence relied on a number of articles and I will deal with certain of these later in my opinion.

[47] Dr Janet Boakes gave evidence on behalf of the defenders. She again was someone who frequently gave expert evidence and prepared expert reports. She appeared to me to be like Professor Freeman someone who was well able to opine on the issues before the court. She in particular had served in a working group which had looked at the issue of recovered memories. She had prepared two reports Nos 7/4 and 7/18 of Process.

[48] Again, as with Professor Freeman, senior counsel for the defenders begun by seeking to set out areas of agreement between her and Professor Freeman. She accepted the following: • • • •

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the pursuer suffered from a personality disorder; the pursuer suffered from persistent depressive disorder; that all recovered memories were not false; memories recovered through therapy of which the person had had no previous memory were false.

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I did not understand this last view to be materially different from that expressed

by Professor Freeman who in the course of his evidence appeared to accept this point. She accepted and relied on certain papers and research done by Geraerts and I will refer to this further at a later stage.

[49] She felt that the pursuer’s memory return had not been entirely spontaneous, in that his memories were not immediately triggered by watching the TV programme, rather his memories developed over a period of time (following upon the recovery of his records and his then proceeding to Epsom).

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She also felt that the pursuer had been introduced to the idea of dissociative amnesia at an early stage in his treatment with effects, which I will turn to later in my discussion. These were factors which tended to push her away from a diagnosis of dissociative amnesia. Overall she said in evidence that her position was summed up by what she said at para.10.13 of her second report which was this: “His memory: The main area of difference between Professor Freeman and myself lies in his memory recovery. I am very sceptical that if he had been seriously ill treated he would have forgotten it within four years, return to the home several times to fit carpets without recalling anything, and 30 years later would be surprised by what was revealed on the Frontline Scotland Programme. In my view the most convincing explanation is that his experience at Quarriers was not particularly memorable and he did not dwell on it.”

[50] Her position was that what the pursuer said he had been subjected to in the context of the 1960’s, was not very memorable.

[51] She adopted the position put forward by McNally and Geraerts in their 2009 paper which she summarised at para.10.14 as this: “McNally and Geraerts 2009 outline some alternative possibilities to explain the apparent forgetting and later recovery of memories.

“The abuse was not particularly traumatic at the time and has simply not been thought about. Some people may only realise in adult life that what they experienced was abuse and this new understanding and interpretation may be very upsetting. It is possible that this accounts for (the pursuer’s) recall after seeing the TV programme. Against that is the two-month period before he started to get his memories and they came in the form of flashbacks rather than memory.

“Reminders of the abuse were absent. Memories of abuse, like other memories, will fade away in the absence of reminders. If the victim moves away, or the perpetrator either dies or leaves the area, there may be nothing to remind the person of what happened. This clearly does not explain (the pursuer’s) loss of memory as he was a constant visitor to Quarriers.

“People may make a deliberate attempt to forget what happened. This is not a very effective method and the alternative is to turn ones thoughts away from a distressing memory in an effort at distraction.”

[52] In discussing forgotten remembering as put forward by Geraerts, her position was that once repression was unblocked that was it.

[53] Dr Boakes did not accept dissociative amnesia: it did not makes sense, it was put forward that it was to protect the mind of the child. This did not work in the pursuer’s case because until he left Quarriers he remembered abuse, so why when he left did the mind operate to protect him, as he no longer needed protection.

[54] She believed that the pursuer’s borderline personality disorder was a relevant issue when considering the reliability of his evidence because of the tendency of people suffering from such a condition to misperceive situations.

[55] She referred to the following further points which tended, in her opinion, to undermine the diagnosis put forward by Professor Freeman: • he does not refer to abuse when first at Penrith; • the events founding the amnesia were not particularly traumatic in the context of the time at which the pursuer sustained them; • at the time of his “breakdown” in 2003 there were so many other problems in his life.

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[56] She felt that looking to the whole circumstances that there were a large number of possibilities to explain what had been happening to the pursuer regarding memories.

[57] In re-examination she said the following passage in the McNally and Geraerts 2009 paper summed up her views: “The repression interpretation does not withstand empirical scrutiny (McNally, 2003, pp.186–228; McNally, 2004; Piper, Pope and Borowiecki, 2000). More specifically, although repression theorists have adduced data from many studies in support of the claim that trauma victims are often unable to remember horrific experiences (Brown et al., 1998; Brown, Scheflin and Whitfield, 1999) these data are subject to interpretations more plausible than the repression one. In some studies, the memory problems actually refer to everyday forgetfulness that occurs after a trauma, not an inability to remember the trauma itself. Other examples include mistaking a failure to encode an experience with an inability to recall it, assuming that not thinking about something for a long time implies an inability to remember it, confusing reluctance to disclose a trauma with an inability to recall it, confusing attempts to forget a trauma with the ability actually to do so, and mistaking organic amnesia for psychic repression of trauma.

“Moreover, an analysis of studies involving corroborated traumatic events uncovered no convincing evidence that victims had forgotten, let alone repressed, their trauma (Pope, Oliva and Hudson, 1999). Genuinely traumatic events are highly memorable, as dramatically exemplified by PTSD” (at p.127).

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[58] Senior counsel commenced his submissions by setting out what he described as the pursuer’s two core submissions which were these: 1.

2.

The pursuer, through no fault of his own, had forgotten, by a process other than “ordinary forgetting” that the abuse in question had occurred, from a date prior to expiry of the period under s.17 of the 1973 Act until in or about June 2003, following the recovery of his records; and that, although both the pursuer and the defenders suffered prejudice as a result of the delay between the expiry of the triennium and the date of the pursuer raising the action in December 2004, in the whole circumstances of the case the relative weight of the respective prejudice was such that it was equitable for the court to allow the pursuer to proceed with his action under s.19A, and, accordingly, the court should pronounce an interlocutor in terms of the fifth plea-in-law for the pursuer. The balance of equity he submitted favoured the pursuer.

[59] Senior counsel then proceeded to outline the legal context of his submissions.

[60] With respect to s.17 of the 1973 Act he said that it represented in Scotland a principle that existed in many jurisdictions, namely: society has an interest in seeing that there is a cut-off point after which stale claims will not be allowed to be pursued.

[61] However, such a rigid role was capable of producing injustice and thus s.19A of the 1973 Act was introduced.

[62] The Scottish provisions were mirrored, although the wording was somewhat different, in s.11 of the Limitation Act 1980 and a similar power to bring an action outwith the triennium in s.33 of the said Act. Senior counsel then drew my attention to the judgment of McHugh J sitting in the High

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Court of Australia in the case of Brisbane South Regional Health Authority v Taylor where certain observations were made with respect to analogous Australian provisions. The observations of McHugh J were heavily relied upon

by Lord Drummond Young in his decision in B v Murray (No.2) (see: in particular at para.21). When considering the proper approach by the court to s.19A, Lord Drummond Young founded significantly on the public policy issues identified by McHugh J and at para.138 Lord Drummond Young said this: “The limitation period is the norm enacted by the legislature; the discretion under a provision such as s.19A is an exception to that norm.

Consequently the onus is on the pursuers, who seek to invoke the exception to satisfy the court that special circumstances exist. If they fail to do so, they must lose their legal rights; that merely gives effect to the legislative policy. . . .”

[63] Senior counsel accepted that these matters were taken up by the House of Lords in AS v Poor Sisters of Nazareth and in particular Lord Hope of Craighead at para.25 made these observations: “As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor (p.255) it seems more in accord with the legislative policy that the pursuer’s lost right should not be revived and that the defender should have a spent liability reimposed on him. The burden rests on the party who seeks to obtain the benefit of the remedy. The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to. But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour. This is a question of degree for the judge by whom the discretion under s.19A is to be exercised. I do not think that Lord Drummond Young, who examined all the issues on either side of the argument, was in error in his assessment of the test or of the underlying policy of the statute.”

[64] Senior counsel contended that it was important to properly understand what could be taken from these observations and in particular submitted that the observations should not be taken too prescriptively.

[65] In elaboration of the foregoing general assertion he said this: the rationale was, indeed, that one started from the premise that society had decided, in principle that defenders ought to be protected from stale claims, and accordingly it must follow from that premise that the onus in satisfying the court that special circumstances existed lay upon the pursuer.

[66] That was apparent from the circumstance that Lord Hope’s comments dealt explicitly with the overcoming of a burden. If the burden were not capable of being overcome, s.19A would be deprived of any meaningful content, especially bearing in mind the legislative context in which it was enacted, namely: the provision of an equitable remedy to pursuers who might find themselves caught by the hard black-lettered law of s.17. In addition, it did not follow: (1) that, once a defender could demonstrate any degree of prejudice, that that was sufficient to defeat an attempt to invoke s.19A; (2) nor was it the case that the circumstances in which the pursuer came to delay the raising of the action would be irrelevant, even when the defender could demonstrate prejudice; and (3) the prejudice to the defender would have to come up to the standard of “the real possibility of significant prejudice”. This he submitted was underlined by the comment made by Lord Hope, that the court must “give full weight to” the explanation for the delay “and the equitable considerations that it gives rise to”. Even then, that would “usually”, (but not

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invariably) determine the issue in the defender’s favour. As Lord Hope pointed out, it was a question of degree for the judge to consider.

[67] Senior counsel sought to emphasise this: the court should be careful not to slip into an error of this type, namely: seeing superficial similarities between the instant case and B v Murray (No.2) and AS v Poor Sisters. What the court should be careful not to do was to hold, because Lord Drummond Young came down in B v Murray (No.2) against the exercise of the equitable power and was upheld in the House of Lords, that the court of necessity in the instant case must come to the same conclusion. This would not be a proper approach, first, because the facts as they affected both parties in the present case were materially different from those in B v Murray (No.2) and secondly, even if the facts were substantially similar, it was inherent in the exercise of any discretion that different judges, looking at identical circumstances may reasonably come to different conclusions. His position was this: considered properly, the House of Lords in AS v Poor Sisters did not go beyond the conclusion that Lord Drummond Young’s exercise of his discretion did not fall outwith the range of decisions to which a judge might reasonably have come. It was his position in summary that B v Murray (No.2) and AS v Poor Sisters were of only limited, if any use, as precedents in relation to the issue before this court; namely: the actual exercise of the equitable power in s.19A. Individual cases depended upon their own individual facts and given that the range of outcomes based on a particular set of facts to which a court might reasonably come might result in either the exercise of, or of the refusal, to exercise the equitable power.

[68] Senior counsel also drew my attention to A v Hoare. He in particular drew my attention to the observations of Lady Hale made at para.60 where she stated: “It may well be more satisfactory to transfer the question into the exercise of discretion under s.33. Then the injustice to a claimant who may be deprived of his claim, perhaps as the result of the very injuries which gave rise to it, can be balanced against the injustice to a defendant who may be called upon to defend himself a long time after the event where important evidence may no longer be obtainable. I fully support the more generous approach to the exercise of discretion which is adopted in particular by Lord Hoffmann. The reasons for the delay are highly relevant to that exercise, as of course are the prospects of a fair trial. A fair trial can be possible long after the event and sometimes the law has no choice. It is even possible to have a fair trial of criminal charges of historic sex abuse. Much will depend upon the circumstances of the particular case. But the policy argument applies just as much to the whole ‘date of knowledge’ provision as it does to the definition of significance with which we are concerned.

With a properly directed discretion one should not need the date of knowledge provision at all. Nor are the difficulties faced by a defendant, whose breach of a strict statutory duty may have resulted in some insidious industrial disease necessarily less deserving of consideration than the difficulties faced by a defendant whose deliberate and brutal actions towards a vulnerable person in his care may have resulted in immediate physical harm and much later serious psychiatric sequelae.”

[69] In addition senior counsel generally drew my attention in the said case to the speech of Lord Hoffmann at paras 49–52 and Lord Brown of Eatonunder-Heywood at paras 84–87. Senior counsel went on to refer to one further authority in which against the background of A S v Poor Sisters and A v Hoare the Court of Appeal gave guidance on the criteria to be considered in the exercise by the court of its equitable power and this was the case of B v Nugent

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Care Society. The approach which the court should take was summarised at paras 24 and 25 where this was said: “This echoes Smith LJ’s own formulation, which we believe to be consistent with our approach in para.73: “ ‘It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect that it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/ or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones.’ ” [70] From the foregoing authorities senior counsel sought to take the following points: Although the onus lies upon the pursuer to satisfy the court to exercise its equitable power under s.19A, it is simply that—a question of an onus on the pursuer to satisfy the courts as to the existence of special circumstances which justify the exercise of the power. What it is not is a distortion of the balancing exercise which has to be carried out by the court unfettered.

Although, in the words of Lord Hope, “the real possibility of significant prejudice will usually determine the issue in (the defender’s) favour” it most certainly does not follow that as soon as the defender shows such a prejudice, that gives him a “free pass” irrespective of the circumstances which effected the pursuer and led him to delay in raising the action. If that were so, then the very mischief which the legislation was introduced to address would go in large measure unremedied, and defenders would be placed in a uniquely privileged position which goes beyond the legitimate protection which they gain from this onus of showing special circumstances being placed upon the pursuer. Nor is it what the case law above suggests: the requirement was for the court to perform an unfettered and even-handed assessment of the balance of prejudice, viewed in the context of the whole circumstances of the case.

[71] Senior counsel having set the legal context submitted that the primary question for the court was this: whether the pursuer had proved his averment that he forgot the abuse which he had suffered at the hands of Miss D and that the process by which he forgot was involuntary? Within that question there were two elements, namely: the evidence as to fact and the expert evidence.

[72] With reference to the evidence of fact counsel submitted this: The pursuer, though he had had a borderline personality disorder with associated problems throughout his life from his teenage years, undoubtedly suffered a major breakdown on or about 7 June 2003, when he was admitted to hospital in Penrith. The trigger to that event, which he referred to in his evidence, was the returning of memories of the abuse at the hands of Miss D. That he suffered a major breakdown in June 2003 was incontrovertible—he went from [being] a man who, despite his problems, managed to hold down a series of jobs and support his family, who had active interests and went on trips, who helped about the house to one who became almost entirely dysfunctional.

Senior counsel then asked in the light of the foregoing this question: If the

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breakdown did not happen for the reason given, what other cause was there?

In answer to this question he said that no alternative had been suggested in the evidence. He submitted that the pursuer’s evidence as to the return of his memories of abuse by Miss D should be accepted as an account which provided the only plausible explanation of the deterioration in his condition in 2003. It was his position that if there had not been a return of memory of the abuse by Miss D, and the pursuer had always remembered that abuse prior to June 2003 and continued to remember it from June 2003, then there was no explanation for the undoubted change in his condition.

[73] Senior counsel conceded that even if the pursuer’s evidence were accepted with respect to the above matters that did not lead automatically to the conclusion either that he had forgotten that he had previously remembered or that the process of forgetting was involuntary. Rather the starting-point in relation to the proposition on behalf of the defenders that the pursuer had forgotten what he had remembered was the evidence disclosed in the medical records, which could be used as a cross-check of the evidence given by the pursuer.

[74] Senior counsel’s response to the points sought to be made by the defenders arising from the medical records, was this: the pursuer’s evidence was quite straight forward—it was not that he had forgotten the whole of his time at Quarriers, nor even that he had forgotten Miss D and his time in the cottage with her. It was simply that he had forgotten what he described as “the bad stuff”. Against that, he conceded that the medical records disclosed that he had previously given accounts of running away from the home, bullying and being hit by his father, though he at proof denied having given such accounts. Although the pursuer in evidence sought to give explanations for the apparent entries in the notes, the court may take the view that these explanations, at any rate for the most part, were not entirely convincing (though it may be that they did at least provide a context for his comments from time to time on his relations with his wife—it is probable that his perception of that relationship might have varied over the years, and the evidence of his wife may be of some assistance in testing the objective reality).

If the court did take that view, then it would be the case that his evidence of not having made the comments would fall to be treated as unreliable, although through no fault of his own.

[75] Again that, however, was not the end of the matter. First, it was entirely consistent with what was known of the pursuer’s condition and with the expert evidence. It was entirely probable that he might have forgotten making the comments attributed to him. Second, it was certainly necessary to be clear about what it was that he was said previously to have made comment upon.

The point about this was: what he said, that he had forgotten was “the bad stuff”, but by no means everything about Quarriers or even about Miss D. It was the very selectivity of this censoring of memory that rendered it all the more remarkable that he could previously have remembered the subjectmatter of the comments attributed to him, yet not remember the abuse by Miss D. The abuse, as he now described it, was, as was clear from his evidence, particularly upsetting for him.

[76] Senior counsel said that support for the pursuer’s position was to be found in the evidence of Mr J. His position with respect to the competency and relevancy of that evidence was this: it was both competent and relevant, not only as to indicating that the evidence of other witnesses was available, but also for the purposes of giving the court a context in which to assess the cogency of the pursuer’s evidence. The present case was one where it appeared

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from the evidence of Mr J that corroboration may potentially be available for the pursuer’s account. He submitted that Mr J’s evidence painted a picture of a particularly harsh regime within Miss D’s house at Quarriers at the relevant time. He also spoke to the disproportionate effect on the pursuer, whom he described as a “cry baby”. Mr J spoke of how he had to be tough to withstand what was done to the children by Miss D, yet in the manner in which Mr J gave his evidence the court may have detected a vulnerability which the selfdefensive carapace which he had grown did not altogether protect.

[77] Senior counsel submitted that when the evidence of the pursuer and Mr J was considered it was perfectly possible to see that the physical abuse suffered by the pursuer at the hands of Miss D was of an entirely different order from, for example, any punishment which he received at the hands of his father or bullying by other children within the home. These things were relative. Because the pursuer said that his father may have hit him from time to time that did not necessarily amount to any more than normal chastisement, falling well short of the abusive treatment meted out by Miss D, likewise with bullying. Furthermore the actual process of running away may have been as a consequence of the treatment given to the pursuer by Miss D or may merely have been as a result of general disaffection with life in Quarriers. Mr Dunbar gave evidence to this effect: children trying to run away from the home was a common problem, but whatever the reason, the actual running away and “life on the run” was entirely different from the very particular store of memories— “the bad stuff” which had been involuntarily self-censored. Senior counsel went on to submit that the most telling piece of evidence, which supported the proposition that even if the pursuer gave accounts about bullying, running away and being hit by his father he had nevertheless not remembered the abuse from Miss D was to be found in the medical records. He submitted this: on a detailed examination of these records nowhere was there any note of the pursuer having said at any time prior to the breakdown in June 2003 that he had been abused by her. This he argued was all-the-more remarkable given the wide and extensive medical interventions covering that period. Had he made such complaints, one would have expected to have seen some mention of them, and if he was giving information about being hit by his father, bullying at school and running away, it was utterly remarkable that he would not have also mentioned the abuse by Miss D. It flowed from the foregoing that the only plausible explanation for his not having done so was this: it was not something which was present in his memory. Similarly, although there was reference to apparent suicide attempts by the pursuer during his teenage years, this was not evidence of his having remembered the abuse at these points.

There was no evidence in the medical notes or in his evidence to any linkage between events at Quarriers and these attempts at suicide, should the court accept that they were seriously intended attempts at suicide, which the pursuer in any event denied. It was submitted that, on the balance of probabilities, abuse at the hands of Miss D had not been in his memory from the point at which he was driven by his father’s car down the drive on leaving Quarriers.

[78] More particularly within the records there was this note dated 17 September 1991 (No.7/2 of Process beginning at p.192). On p.194 this was said: “Didn’t like school, was bullied—didn’t know why—ran away from the home—denies any abuse. Father wouldn’t take him out of home. Younger brother also in the home. Pt looked after him.”

[79] Senior counsel said: there was a record of the pursuer remembering bullying at school and running away but having no memory of abuse. This was particularly significant in that: it was not a mere omitting to mention abuse,

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but rather was a specific denial of abuse in response to specific questions about that issue.

[80] The next issue within the factual evidence, related to the pursuer’s evidence as to the process by which he forgot. The pursuer’s evidence on this was short and sharp: as he was driving away from the school with his father, “the shutters came down”.

[81] It was the evidence of Professor Freeman that this was consistent with the process of dissociative amnesia, which kicked in when the patient reached a place of safety. With respect to the line advanced on behalf of the defenders that being with his father was not for the pursuer, a place of safety, it was submitted that this suggestion should be rejected, first because being hit by his father did not necessarily equate to abuse and in any event, as Professor Freeman explained, what mattered was that one was in a place which one perceived as being one of relative safety.

[82] The second element in this discussion was the expert evidence: senior counsel accepted that in relation to a number of matters there was a large measure of agreement between the experts. However, there were he submitted important differences.

[83] With respect to the expert evidence senior counsel submitted I should prefer Professor Freeman’s evidence to that of Dr Boakes.

[84] Generally he submitted regarding Professor Freeman: he was an impressive witness, he was both credible and reliable. His extensive experience and qualifications were impressive both from an academic perspective and a clinical one. He had unrivalled practical experience in the field of memory, with his extensive involvement in the major disasters of Lockerbie and Piper Alpha as well as treating serviceman returning from combat. He was measured and gave his evidence in a coherent and firm manner. Although he spoke of the bitterness of the “memory wars”, he had not been associated with either camp, and gave his evidence from a perspective which was informed not only by his academic involvement but also from his unrivalled practical experience.

[85] With respect to Dr Boakes senior counsel said this in his written submissions: “6.15 Dr Boakes’s practical experience was distinctly more limited, having actually treated only (as she admitted in cross-examination), one or two patients in this area, and having had no recent clinical experience at all following her retirement in 2005. Her account of how she got involved in dealing with so-called ‘False Memory Syndrome’ (which she acknowledged was not a recognised syndrome) as well as her experience as an expert witness exclusively on one side of that debate does display her commitment to one side of the ‘Memory Wars’. It is not suggested that this is in any way disreputable, and it is not to be doubted that it comes from a genuine belief in the theories which she propounds. It is submitted that the reason why she takes those positions springs from how she approaches the concept of dissociation. At para.9.10 of her report of 29 October, 2014 she cites a curiously partisan paper, which describes those who believe that there is such a thing as repressed memory which can be recovered as ‘mavens and true believers’, before going on to develop her theme in the following paragraphs that ‘there is no scientific support for an unconscious, automatic process not under the individual’s control that gives rise to amnesia’. This she highlights as a point of disagreement which she has with Professor Freeman. In the reference to ‘scientific support’ lies the key to understanding the disagreement. Dr Boakes approaches the matter from an academic perspective: it is for those who support the hypothesis of dissociative amnesia to present proof of its existence. In this context ‘proof’ means scientific proof, not proof on the balance of probabilities as it would be

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understood by a lawyer. Dr Boakes asserts that there is no such proof. If that be so, the fallacy in her approach is that, if it cannot be established by scientific proof, it does not exist. In the event, her repeated assertion that there is no evidence for dissociative amnesia shifted under cross-examination to there being no evidence which she would accept for dissociative amnesia.

6.16 There are other aspects of her evidence which demand caution from the court in the way in which her evidence is approached: • In cross-examination she was extremely combative.

• She was given to making sweeping assertions which she did not vouch, for example the assertion that there is no evidence for dissociative amnesia, the assertion that ‘you don’t forget abuse’ (despite the papers which suggested that one can forget abuse and Professor Freeman’s practical experience of traumatic events being forgotten) and the assertion that once you remember something, you don’t forget it again (despite Professor Freeman’s clear evidence that it is a function of dissociative amnesia that things remembered can be forgotten again).

• She did assert, ‘Disassociation is rather ambiguous. I wouldn’t completely pooh pooh it’ but qualified that by saying, ‘I’m not sure I’m going to accept dissociative amnesia in the way it is used (under reference to the DSM V scale). She made it clear that she simply did not accept the DSM V category of dissociative amnesia, albeit that formed a widely accepted international standard. This is at least inconsistent with her stance as an expert witness in BV Murray (No.2) where she had criticised the pursuer’s expert witness for not accepting DSM IV. (Parenthetically, it is worth mentioning that dissociative amnesia was referred to by Lord Walker in A v Hoare at para.47 as a ‘recognised mental disorder’.)

• There was also the extremely combative way that she dealt with cross-examination on the question of whether persistent personality disorder is a major condition, especially her imperious dismissal of the diagnostic criteria which were set out in the DSM V, even when her attention was being drawn to the circumstance that those criteria had all been met.

• Was she properly prepared? Professor Freeman had produced in advance of the proof the papers which he relied on in his first report (though not the papers in the later reports). It is curious that, although Dr Boakes had cited a number of papers in her reports, no attempt had been made to lodge any of them, and an attempt to cross-examine on this was rebuffed on the basis that she had not had an opportunity to refresh her memory.

• There was also the attempt to bolster her own evidence by referring to the paper of Professor Brandon to which she had contributed and which she described as a ‘consensus document’. It was only in cross-examination that it emerged from her that the document was not a consensus document and was not supported by the Royal College of Psychiatry, an institution which she described ‘as suffering from an excess of democracy’. She simply had no knowledge of the role Professor Freeman undertook in response to the concerns that report caused for psychotherapists.

• There is also the extent to which it is submitted that her evidence was tainted by her seeking to continue to rely on false memory syndrome as at least one explanation for the pursuer’s condition.

Despite the focused nature of her examination in chief, the fact remains that her reports still offered false memory syndrome as an explanation, and indeed, strayed beyond the limits of what is the proper role of the expert in offering her view that (in effect) (the pursuer’s) memories of abuse were false. This was exacerbated by

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gratuitous and unfair comment upon (the pursuer’s) credibility and reliability (the comment that he was ‘economical with the truth’, which she accepted under cross-examination was a euphemism for lying, was particularly egregious in this respect). This tendency to stray is one which has several times caused difficulties for her in giving expert evidence in England, most recently in the Court of Criminal Appeal in England in H v The Queen [2014] EWCA Crim 1555. Reference is made in particular to the comments of Sir Brian Levison P at paras. 21, 22, 41 and, especially 42.

In similar pejorative vein to her characterisation of the pursuer as being ‘economical with the truth’ was her reference to ‘magical mechanisms’ (albeit that the word ‘magical’ was subsequently withdrawn by her) and her analogy of proving the existence of dissociative amnesia as being subject to the same requirements as proving the existence of unicorns.”

[86] Senior counsel’s position was that the expert evidence which the court should accept, was this: Professor Freeman’s evidence which supported the view that the pursuer had involuntarily forgotten the “bad things”.

[87] The position put forward by senior counsel in his written submissions regarding the evidence of Professor Freeman was as follows: “6.19 Professor Freeman provides an explanation (which, in common with all of the expert evidence, it is for the court to test against the facts) in the form of dissociative amnesia. It is the explanation which best fits the facts, unless one starts from the premise that the existence of dissociative amnesia has not been established and therefore the pursuer cannot be suffering from it. If one takes the latter approach, then it leaves one struggling to find an explanation which is consistent with the facts, as will be discussed below. It is submitted that the court should accept Professor Freeman’s explanation. To take Dr Boake’s approach is to conflate the separate issues of what is dissociative amnesia and what causes it (for example, a process of memory repression). It is a phenomenon which Professor Freeman form his vast clinical experience was able to identify as having encountered on many occasions, and there is academic research which tends to support the existence of the condition (whether that research is acceptable to Dr Boakes or not) and, indeed, the evidence of its existence is sufficient to have persuaded the profession as a whole to accept it internationally to the extent of listing it, along with diagnostic criteria, in DSM V. Even if Dr Boakes is correct, and the scientific research does not provide an explanation for what causes the phenomena listed as dissociative amnesia, that does not mean that the condition does not exist. To argue otherwise is rather like the analogy put to Dr Boakes by the pursuer’s senior counsel that because we do not know what causes cancer, that does not mean that we can assert that it has not been proven that cancer exists.

6.20 Here one gets caught up in the issue of ‘false memory syndrome’.

As discussed above, Dr Boakes’s reports make reference to the ‘syndrome’ as a possible explanation. This theory comes as a natural outgrowth of the position which Dr Boakes took in the false memory debate. If there is no such thing as dissociative amnesia, then that throws into doubt the existence of repressed memories which can be recovered, and increases the probability that memories which purport to have been recovered are false. The science has advanced between 2007 (when she wrote her original report and a year after she gave evidence in B v Murray (No. 2)) and 2014, and during that period her views have taken account of some of that research, to the extent that she is not now as emphatic that recovered memories are likely to be false, taking instead the reasonable view (which is shared by Professor Freeman) that recovered memories might or might not be false. However,

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the critical thing is that this change in her view has not come about as a result of any increased willingness to accept a process of dissociation as causing amnesia—a process which she still refuses to countenance. To that extent, her evidence remains coloured from where she has come from in the debate, as opposed to Professor Freeman, who, the court may accept, has never ‘taken sides’ in this debate and has approached the question with an open mind.

6.21 There is a very specific issue in which this difference of approach becomes critical. Reference was made above to Dr Boake’s unvouched assertion that ‘you don’t forget trauma’. It is understandable why she might come to that view, considering the premise from which she starts, for if there is no such thing as dissociative amnesia, then the explanations for forgetting are limited, with the most likely explanation being ‘ordinary forgetting’ and, indeed, trauma is perhaps not the sort of thing that could be forgotten by a process of ‘ordinary forgetting’—it is not something which is forgettable. However, the many instances of forgetting of traumatic events spoken to by Professor Freeman from his extensive clinical experience (let alone the cases mentioned in the literature—though this [is] not research which [is] accepted by Dr Boakes) demonstrates that people do forget traumatic events, and once that is accepted as an observed phenomenon, that challenges the underlying premise accepted by Dr Boakes and rejected

by Professor Freeman and the DSM V that there is no such thing as dissociative amnesia.

6.22 Also arising from this dispute is the significance, if any, of the pursuer having been given an explanation for his condition by an unidentified practitioner that he has ‘locked up’ his memory, that it was ‘on the back burner’ and ‘simmering away’. It is contended by the defender[s] that this in effect taints his whole evidence. Superficially attractive though that might sound, it does not stand up to close examination. This theory is first mentioned in a passage starting at para.8.7 of Dr Boakes’s first report, with the comments being made about what he was told at para.8.10 (pdf p.903). The discussion is held in the context of false memory syndrome.

This is manifest at para.8.13: ‘He has also expressed disappointment that during his therapy Dr Cohen failed to help him to recover memories. This strongly suggests that he believed that he had “blocked out” memories that were lurking in the undergrowth awaiting recovery. In other words, he has been introduced to the theory of repression and memory recovery.’

“The apprehended tainting is in relation to persuading the pursuer that he had repressed memories to recover, with the concomitant danger that any ‘memories’ which were recovered would be false. Incidentally, that does not hold together as there is no suggestion that any memories were ‘recovered’ during therapy, but, in any event, if one leaves out of account that supposed danger, what, if any, real tainting is there of the pursuer’s evidence by his being provided with such an explanation (which Professor Freeman said was, in any event, a perfectly reasonable explanation to have given him)?

6.23 If the issue in this case had been whether the pursuer’s memories were false, then one can see the rationale of Dr Boake’s position, but that is not an issue. In relation to the real issue in the case (that the pursuer by an involuntary process had forgotten his abuse at the hands of (Miss D), it is submitted that such information did not taint his evidence in any meaningful way, if at all. By the time he was seeking an explanation, he had already undergone his breakdown in 2003. His perception of what happened is irrelevant to the facts to which he spoke in evidence, which are recorded in the medical records and which are spoken to by himself and his wife. Put another way, what he thought as to the mechanism of his forgetting and

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remembering has no bearing on the fact of his forgetting and remembering.

It might have done, had the court been asked to rely upon (the pursuer’s) explanation as to the mechanism of his forgetting and remembering, but of course, the court is not being asked so to rely.

6.24 Also of importance is the fact of sudden remembering in 2003, which engages the issue of whether persistent personality disorder is a major disorder. Professor Freeman’s position is that the normal trajectory of borderline personality disorder is that the patient improves with age, and a sudden deterioration in the condition of a patient of the pursuer’s age is very unlikely. If the pursuer developed a persistent personality disorder (which, in Professor Freeman’s opinion is a major disorder) then the most probable explanation which Professor Freeman can find is the return of the pursuer’s memories at the time of his breakdown. If however, persistent personality disorder is not a major disorder, then it follows that there is no need to look for an explanation for a deterioration in the pursuer’s condition, or, at any event, it opens up the door for alternative hypotheses, such as ‘malignant regression’ (Dr Boakes’s first report para.7.7) a diagnosis rejected by Professor Freeman.

6.25 If dissociative amnesia is rejected as an explanation, and, for the reasons discussed ‘false memory syndrome’ (which was in any event not urged upon the court by the defender’s counsel) is also rejected, what explanations are left? These are found in para.11.4 of Dr Boakes’s second report (pdf, p.1011) and appear to consist in ‘ordinary forgetting’ or not thinking about it, combined with having now forgotten that he had previously remembered.

6.26 So far as ‘ordinary forgetting’ is concerned, Dr Boakes posited that this would arise if the events were not memorable. Given the evidence of the pursuer and the evidence of (Mr J), what they speak of hardly seems to be events which are not memorable. Whether or not (Mr J) corroborated every individual detail of the pursuer’s evidence he certainly painted a picture of a harsh and brutal regime, which he, (Mr J), vividly remembered many years later. Of course ‘memorable’ is not an abstract concept. What is memorable is what is memorable to the individual concerned. In light of (Mr J’s) evidence that the pursuer was a softie, a cry-baby, then it is likely that the sort of regime which Mr J and the pursuer describe would be even more memorable for the young (pursuer) than for (Mr J). In other words, it is inherently improbable that what the pursuer describes could have been forgotten by a process of ordinary forgetting.

6.27 That leaves the possibility of the pursuer consciously not thinking about the matters concerned. If that were so, those matters would have been continuously in the pursuer’s memory—he would not have forgotten about them at all. However, the evidence of the medical records, especially the note in which the pursuer is noted as having denied abuse, together with the pursuer’s account of remembering in 2003 and the deterioration in his condition which, it is submitted, could only have been caused by the coming into memory of something which had been truly forgotten to conscious thought, all combine to deny any credible support to the speculation that the pursuer had really known all along but not thought about it.

6.28 In all of these circumstances, it is submitted that the court should accept the explanation that (the pursuer) had involuntarily forgotten his abuse at the hands of (Miss D) through a process of dissociative amnesia.”

[88] Turning to the issue of the balance of equities senior counsel commenced by referring to Lord Drummond Young’s decision in B v Murray (No.2) and submitted that it was important to understand that this decision was in no sense a precedent, rather it had to be remembered that each case turned on its own facts.

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[89] Thereafter turning to his specific submissions as regards the balance of equities in this case his position was that when looking at the prejudice asserted by the defenders what was important to consider was the actual prejudice shown rather than merely assumed.

[90] Senior counsel conceded that the inability to call Miss D plainly caused prejudice to the defenders. However, it did not cause the real possibility of significant prejudice. He further appeared to suggest that it did not weigh materially in the balance of equity against the pursuer.

[91] With respect to time he submitted this should not of itself be taken as prejudice. What required to be considered was its effect on the defenders with respect to their ability to obtain a fair trial. With reference to this senior counsel made certain comments on the evidence regarding the state of the defenders’ records. These submissions were as follows: “Josephine Bell gave evidence in relation to the records to which she had access. She spoke to the records relating to individual residents. At first blush, it did appear as though the records might be difficult to search in order to extract information (such as individuals who may have been in cottage 20 with the pursuer), but, as her evidence progressed, it emerged that the records had been digitised, although the present ability to search those digitised records was limited. She said that it would be possible, in conjunction with the IT provider, to modify the fields which were searchable.

It is submitted that this raises the possibility of greatly improved searchability of the records. However, a real concern arose as to the extent to which Ms Bell was aware of the extent of the records which were available to the defenders. It was clear that staff records had been maintained as the productions contained a one-page photocopy of a sheet from a register of housemothers. The existence of the register of housemothers ‘came as quite a surprise’ to Ms Bell. This had been given to her by Mr Bachelor. Although on the defender’s [sic] witness list in this case, Mr Bachelor did not give evidence. Fuller staff records (No.7/26 of Process) were made available by the defender [sic] immediately prior to Mr Dunbar’s evidence, but why their existence had been unknown to the defender’s [sic] archivist was a question which was not answered. Indeed, the averments at p.25C–E and at p.28 disclose that someone from Quarriers had given information about cottage log books, which would not be part of the records managed by Ms Bell. Ms Bell as the archivist for Quarriers had no idea what records are held by the defenders’ agents. This raises doubts as to whether the defender [sic] has disclosed the full extent of the records available to it, and, without knowing this, it makes it difficult for the court to be satisfied as to what extent, if any, the defender [sic] is prejudiced by the availability and state of its records. Furthermore, it is not clear whether the passage of time has adversely affected the availability of records, both for the reason that is unclear what is the extent of the records, but also because it is unclear as to what records were maintained in the first place and whether any have been lost over time. How is the court to know the extent of any prejudice in the absence of evidence as to the totality of the available records beyond that which the defender [sic] has chosen to produce? How does the court know that records have been misplaced or lost? The short point is that it cannot.

Ms Bell was not instructed by the defender [sic] to take any steps to identify or trace any potential witnesses, either staff or children resident in the home at the material time.

“Claire Crawford spoke to her work for Charles Hennessy who was the solicitor in Glasgow dealing with the claims against Quarriers. In relation to records, Ms Crawford stated that the cottages did not have records, yet the defences state at p.28 that the cottages had some records but they have gone or been misplaced. It is known that the police took records but not what records, and it is known that Ms Crawford relied upon the archivist.

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“Mr Bill Dunbar gave evidence, but shortly before his doing so a further copy of the house parents register was lodged as No.7/26 of Process. This was far more extensive than the single sheet the provenance of which has been discussed above. He had worked in a senior position at Quarriers and after he retired became an archivist there. In his role as an archivist, he, like Miss Bell, was concerned only with children’s records. Because of his earlier senior position in the home before he retired, he could identify many of the individuals referred to in the records. He confirmed that members of staff who were serving in individual cottages at any given time could be identified through the payroll records and indeed, starting with the information recorded in No.7/6 of Process, it should be possible to trace the Dutch female assistant (who, the court will recollect, had been identified by the pursuer in the photographs), although he had never been asked to make any enquiries regarding staff. This raises the question of what efforts (if any) have been made by the defender to contact other staff in investigating this claim? There is no clear answer to this, save that from Mr Dunbar’s answer (beyond Mr Mortimer, who had not been not speak [sic] to specific allegations in any event), there appears to be no such efforts. As to the issue of prejudice claimed on record, Mr Dunbar’s evidence shows the averments about this are overstated and again there is no evidence of steps taken at all as regards contacting other members of staff.

7.6 In summary, the position in relation to documents appears to be that it is far from clear just what the full extent of the documents may be, and to what extent delay has adversely affected the availability of the documents (indeed, on one view, the digitisation of the records may even have improved their accessibility and searchability). It is submitted that, whatever is asserted, the defender has not shown actual prejudice.

7.7 In relation to witnesses, it is clear that, even on the documents known to be available, it is possible for the defenders to trace other members of staff, including at least one assistant who served in cottage 20 while the pursuer was there, and who therefore ought to be able to give evidence as to the way in which she saw Miss D interact with the pursuer and other children in the cottage, yet the defender [sic] had made no attempt to do so. This might also be supplemented with evidence from Mr Dunbar, who was able to give a very clear account of the background, standards and individuals at Quarriers. He was not able to say what happened within the four walls of cottage 20, but he was able to give a favourable account of (Miss D) in relation to efforts she went to in respect of a boy from Dundee who had got into trouble, and he was able to give a very full account of the standards expected at Quarriers and in wider society at the time. This evidence came from a position of authority which he had held in the home during his working life. Additionally, Ms Crawford had identified Mr Mortimer as a person who could provide an overview of life in the home.

Although he was now deceased, Ms Crawford was able from her notes to recount that Mr Mortimer’s impression was that (Miss D) was ‘old school’, probably untrained and probably quite strict”.

[92] Senior counsel submitted that despite what he described as the “unfortunate reaction” of Mr A, a person approached by the pursuer’s solicitors to give evidence about his time in Quarriers, that it was appropriate for the defenders to approach further residents of Quarriers. He relied in support of this submission on the following: Ms Bell had given evidence as to the manner in which records were given regarding previous residents of the home in a controlled way so as to minimise possible upset, and also how there was a large pool of such residents who had approached the home from time to time seeking access to their records and being given those records, in respect of whom, therefore there could be no risk of an adverse reaction. Further,

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there was a pool of former residents who have been approached by the defenders for the purpose of a government project, “time to listen”, before approaching those persons the defenders either had not been inhibited by concerns of provoking an adverse reaction, or took the view that it would be able to control or handle such reaction where it to occur. There existed a pool of several hundred residents who had received their records through their participation (both solicited and unsolicited) in that project, and, likewise, in respect of whom there would be no basis to view an adverse reaction. No attempt had been made by the defenders to contact any of these potential witnesses.

[93] He submitted that on the basis of the foregoing the circumstances in the instant case were very different from those in B v Murray (No.2) where Lord Drummond Young held it was undesirable to approach former residents in this way.

[94] With respect to the issue of the law in relation to vicarious liability it was his position that there had not been a change in legislation, but a development of common law principles in the case of Lister Hesley Hall Ltd. The issue related to the vicarious liability of an employer for sexual assaults committed by a warden in its employment. It was a principle of common law that an employer was not vicariously liable for unauthorised actions of its employees outside the scope of their employment, but was vicariously liable where the actions were done within the scope of employment, but in an unauthorised manner. The problem arose because of a decision in the Court of Appeal in Trotman v NorthYorkshire County Council that, specifically, a sexual assault was not something which lay within the scope of employment so there could be no vicarious liability. The House of Lords in Lister overruled that decision. The present case was not one of sexual assault, but of physical assaults and similar actions carried out in the course of Miss D’s duties as a house mother. This, it was his position, was something which fell within the wider common law principle, and even while Trotman was thought to represent the law, the vicarious liability of the defenders would not have been affected by it. In these circumstances, the short answer to the defenders’ position regarding a change in the law was, that there had been no change in the law which had caught the defenders. Even if the conduct had been excluded from giving rise to vicarious liability under Trotman, it was of the essence of common law that it was not created in the way that legislation is created, so what occurred in Lister was merely that the pre-existing common law was clarified, not that it was changed. However in any event, it may be questionable how much weight should really be placed upon the loss of the “protection” afforded by a distortion in the common law which was subsequently corrected. He submitted that this was an altogether different thing from Parliament making illegal an act that previously had been lawful.

[95] However, it was senior counsel’s contention that the principle factor in considering the balance of equity was this: the reason why the pursuer did not bring the action until he did. It was not a case that he felt inhibited from doing so, so attempts to equiparate his position with that of the pursuers in B v Murray (No.2) were wholly inappropriate and misguided. Rather, it was a case where he had dissociative amnesia itself caused by the legal wrong in respect of which he now sought to bring proceedings. Because of this condition, it would have been absolutely impossible for him to have known that he had a claim. To deny him the opportunity to pursue such a claim now that his memory had returned would be an injustice so grave that, even though the onus lay on the pursuer to satisfy the court that there were special circumstances

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justifying the exercise of discretion under s.19A, these were clearly special, if not even unique, circumstances. It would take a very substantial prejudice to the defenders to outweigh the inequity to the pursuer. It was submitted that such prejudice as the defenders had demonstrated was not of that order. In short the balance of equity he contended was in favour of permitting the pursuer to proceed with his action. He referred to B v Nugent Care Society at para.22: “On the other hand if the claimant’s evidence is compelling and cogent that the abuse occurred, and it is said that it was the abuse that inhibited him from commencing the proceedings, that is surely a compelling point in favour of the claimant.”

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The pursuer’s submissions can be summarised as follows: • the pursuer had succeeded in establishing that he forgot the abuse meted out to him by Miss D, and that his forgetting was the result of an involuntary process; • he had established that his failure to bring proceedings within the triennium came about as a result of his having forgotten the abuse; • given the reason why the action was not previously brought, not to permit him now to proceed would constitute manifest and grave injustice; • even taking into account the prejudice suffered by the defenders as a result of Miss D no longer being available to give evidence, the totality of the prejudice suffered by the defenders fell far short weighed against the inequity suffered by the pursuer; • in these circumstances the pursuer had overcome the onus upon him to satisfy the court that there were special circumstances justifying the court in exercising its powers under s.19A.

C

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The reply on behalf of the defenders

[96] It was submitted on behalf of the defenders that the evidence in this case had centred on a single averment in art.7 of condescendence, namely: “When he came to leave the home at the age of 13 and reached a place of safety (he had returned to live with his father) he ceased to have any memory of the abuse he had suffered. The process by which that occurred was not a conscious decision on the part of the pursuer to avoid the memories of abuse or otherwise to put them out of his mind. It was an involuntary process known as dissociative amnesia” (pp.21E–22B).

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[97] Given how the evidence had developed the defenders advanced two broad submissions: (a) Even if the foregoing key averment was proved, it was not equitable to allow the action to proceed given the material prejudice that the defenders had suffered, principally with the death of Miss D on 30 January 1980 shortly after the expiry of the triennium (the primary argument); (b) In any event, the pursuer had failed to prove the key averment (the secondary argument).

F

The defenders’ primary argument

[98] In development of this primary argument senior counsel submitted that the present case could not be distinguished from the decision of Lord Drummond Young in B v Murray (No.2).

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[99] Briefly in that case the evidence had been this: the three pursuers had led evidence from a psychologist, Dr Tierney, of repression of memory. They primarily relied on a diagnosis of “disorder of extreme stress not otherwise specified” (DESNOS) but they also relied, as did the present pursuer, on dissociation and amnesia as the second possible reason for delayed disclosure.

Dr Boakes gave evidence for the defenders.

[100] Senior counsel contended that the decision of Lord Drummond Young could be broken down into two parts:

B

• he substantially preferred the evidence of Dr Boakes on the general topic of repression of memory and hence he rejected the pursuers’ case in that regard; • however, crucially he did accept that each of the three pursuers did suffer from psychiatric or psychological disorders which, taken along with a variety of other personal difficulties that they faced, explained the delay in them commencing proceedings. Despite holding that the pursuers had demonstrated reasons for delay he held that it was not equitable to allow the action to proceed because of the prejudice suffered by the defenders on a number of grounds, principally the loss of some, although not all, of the material witnesses.

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[101] It was accepted on behalf of the defenders that the first part of Lord Drummond Young’s decision was not a precedent as it was a fact-based conclusion. However, what was advanced was this: the Lord Ordinary’s second conclusion was a precedent in that it was directly applicable to the instant case and was adverse to the pursuer. Proof that the pursuer suffered from dissociative amnesia did no more than place the pursuer in an equivalent position to the pursuers in the B v Murray (No.2), each of whom was accepted to be suffering from specific psychological or psychiatric disorders that contributed to the delay in commencement of the proceedings. None the less the pursuers in B v Murray (No.2) were held not entitled to an extension of time under s.19A because of the prejudice suffered by the defenders. The defenders’ primary position flowing from that analysis became this: a diagnosis of dissociative amnesia was no more sufficient to overcome the prejudice suffered by the pursuer in the present case than the range of psychological and psychiatric disorders from which the pursuers suffered in B v Murray (No.2). The balance of the equities, on the authority of the B v Murray (No.2) case remained with the defenders.

[102] Senior counsel turned to look in some detail at Lord Drummond Young’s decision and to elaborate on his position that the B v Murray (No.2) case was indistinguishable from the instant case, even if the pursuer was suffering from dissociative amnesia. Senior counsel highlighted the following points: • Lord Drummond Young held that the DESNOS criteria did not command general recognition in psychiatry. He also held that it had not been proved that the pursuer suffered from either PTSD or “dissociative symptoms of amnesia resulting from childhood abuse”. He consequently rejected the first three reasons for non-disclosure advanced by Dr Tierney; • however, he partially accepted that the remaining three psychological or psychiatric factors that Dr Tierney identified and said had contributed to the delay in commencement of proceedings by each of the three pursuers.

Consequently, he accepted that each of the pursuers had suffered psychological harm that might have inhibited the bringing of court proceedings.

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[103] However, despite accepting the above Lord Drummond Young had at para.109 said this: “In summary, accordingly, I conclude that (i) all three pursuers suffered personal and psychological problems that would tend to inhibit them from raising court proceedings, both between the ages of 18 and 21 and subsequently; (ii) all three pursuers did not think that they would be believed if they made complaints about their treatment at Nazareth House, between the ages of 18 and 21 and for at least a substantial number of years thereafter; (iii) and the pursuers did not consciously realise until 1997 that they could raise legal proceedings against the defenders, although that was the result of lack of thought rather than consideration and rejection of proceedings. I accept that all of these provide some explanation for the failure to raise proceedings before 1997. Even when they are taken together with the reluctance of the pursuers to speak about their experiences in Nazareth House, however, I am of the opinion that these factors are heavily outweighed by a number of other matters that are relevant to the exercise of the courts discretion under s.19A.” [104] In reaching that conclusion senior counsel submitted that Lord Drummond Young had based his reasoning on the rationale for limitation periods as identified in the judgement of McHugh J in the Australian case of Brisbane South Regional Health Authority v Taylor. A critical point to be taken from the discussion was this: the law of limitation reflected the presumption that the quality of justice deteriorated with delay. The significance of a loss of material evidence was that it transformed presumed prejudice into actual prejudice to the quality of justice and plainly a claim should not be allowed to proceed if the quality of justice had deteriorated. That was particularly so given, as Lord Drummond Young observed in para.22, the loss of material witnesses was combined by the inevitable deterioration in the quality of evidence that remained available because of the long passage of time.

[105] Senior counsel particularly relied on one passage in McHugh J’s judgement: “Legislatures enact limitation periods because they make a judgement, inter alia, that the chances of an unfair trial occurring after the limitation period has expired is sufficiently great to require the determination of the plaintiff’s right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action.”

[106] In light of the foregoing senior counsel submitted the relevant question for the court was this: whether the defenders had suffered prejudice of a significant kind?

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[107] Senior counsel sought to tie in Lord DrummondYoung’s observations on prejudice with the prejudice which he submitted had been sustained in the present case and made the following detailed points: • The impact of delay on witnesses’ availability he submitted could be prejudice of a significant kind. It was important to notice that in B v Murray (No.2) the defenders did not found on total loss of relevant witnesses. That some of the nuns who it was alleged had abused Mrs B and Mr M and a carer who was also alleged to have been an abuser by Mrs B were alive and able to give evidence. However, the loss of some, but not all, witnesses was accepted by Lord Drummond Young as relevant prejudice. He said this: “actual prejudice, even of a fairly limited nature, will usually be sufficient to preclude any extension of limitation” (see: para.124.) This position was endorsed by the Inner House: “What matters is whether the loss of evidence is material, not whether it is total” (see: 2007 S.C. 688 at p.722, para.93).

• The pursuers argued in B v Murray (No.2) that the defenders could make up for the loss of some witnesses by contacting other children who had been in care, but Lord Drummond Young accepted the defenders evidence of reluctance to make unsolicited approaches to former residents (see: para.123). Accordingly, the possibility of tracing children who had been in care did not negate the prejudice suffered by the defenders.

• In addition to accepting prejudice in the form of a loss of some critical witnesses, Lord Drummond Young accepted that there was prejudice on a number of other grounds. With respect to the present case those of relevance were: (a) the passage of time since the alleged offence occurred; (b) the change in the law in Lister v Hesley Hall that makes it easier to satisfy the court that an employer should be vicariously liable for the acts of an employee like Miss D (see: paras. 126–129); (c) the irrecoverability of expenses.

Lord Drummond Young’s decision in B v Murray (No.2) was upheld in the Inner House and in the House of Lords. Senior counsel directed my attention to one particular passage in the speech of Lord Hope in the House of Lords: “In Carson v Howard Doris Ltd [1981 SC 278; 1981 SLT 273] (p.282) Lord Ross said, shortly after the provision was enacted, that the power conferred by the section should be exercised sparingly and with restraint.

There is a risk that if that approach were to be adopted the court will fail to do what the section requires, which is to determine what would be equitable in all the circumstances. But the context in which that discretion is to be exercised is plain enough. Its effect will be to reimpose a liability on the defender which has been removed by the expiry of the limitation period.

The issue on which the court must concentrate is whether the defender can show that, in defending the action, there will be the real possibility of significant prejudice. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor (p.255) it seems more in accord with the legislative policy that the pursuer’s lost right should not be revived than that the defender should have a spent liability reimposed on him. The burden rests on the party who seeks to obtain the benefit of the remedy. The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to. But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour. This is a question of degree for the judge by whom the discretion under sec 19A is to be exercised” (see: para.25).

[108] Senior counsel before turning to examine the evidence in the instant case relative to the issue of prejudice to the defenders made certain observations

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with reference to the decision in A v Hoare. He said this: translating that decision to the equivalent Scottish provisions, it held that the test under s.17(2) of the 1973 Act is an objective one but the claimant who was subjectively unaware of relevant facts can carry over that subjective lack of knowledge to the s.19A assessment: (see, in particular, paras 34, 42–45). In that case it was argued that one of the claimants had, “blocked out his memory”, or put his memories, “in a box with a tightly sealed lid in the attic” (see: para.42). It was held that the claimant had, “in some sense suppressed” (see: para.45) relevant knowledge i.e., knowledge that would be relevant in Scotland under s.19A. Senior counsel submitted that the present pursuer would undoubtedly rely on that decision to argue that the suppression of memory as a result of dissociative amnesia is relevant to s.19A. That may be so, but it was crucial to note that Hoare was decided before the hearing of AS v Poor Sisters in the House of Lords. He submitted that it would be apparent from the foregoing summary that each of the three pursuers was able to found on psychological or psychiatric disorders as contributory factors in the delay in commencement of proceedings and therefore Hoare was germane to their cases and relied upon by them. Hoare was discussed by the House of Lords in AS v Poor Sisters (see: Lord Hope at paras. 26 and 27). The decision in that case was therefore subsumed within the conclusion of the House of Lords in AS v Poor Sisters and for present purposes the key guidance was that quoted in the speech of Lord Hope above. Suppression of memory, whether as a result of dissociative amnesia or otherwise, and other grounds in which a claimant may subjectively have lack of knowledge of relevant facts are factors relevant to the s.19A assessment, “But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour” (see Lord Hope above). The prejudice suffered by the defenders in B v Murray (No.2) was sufficient to outweigh the pursuer’s reasons for delay.

The same he submitted was true in the instant case.

[109] Senior counsel’s submissions regarding the prejudice suffered by the defenders in the instant case fell under a number of heads and can be summarised as follows: • In some respects the loss of evidence in the instant case was graver than in B v Murray (No.2). In B v Murray (No.2) some of the alleged abusers were alive and able to give evidence. Here the allegations related only to a single person, namely: Miss D and she died on 30 January 1980. She was an essential witness. She was alive during the triennium, which expired in April 1979, and it was simply unknown as to what answers she could have given to the allegations made by the pursuer. The prejudice occasioned by the absence of Miss D’s evidence had been said by Mr Mitchell QC to be “self-evident” during the course of the proof.

• Available records, namely: from Quarriers, medical sources and the social work department are poor and are no substitute for Miss D’s evidence.

• The passage of time was of itself significant. The events in question ended in 1971, more than 33 years before the action commenced in December 2004 and more than 43 years before the preliminary proof.

• The passage of time inevitably had had a bearing on the quality of the available evidence. Both Mr Bill Dunbar and Mr Mortimer (the latter hearsay evidence from Ms Crawford) can only give the most generalised of evidence.

• The law on vicarious liability, i.e. Lister v Hesley Hall, had moved in favour of the pursuer and against the defenders.

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• The defenders were exposed to substantial irrecoverable cost because the pursuer was legally aided. The Inner House appeal was a five-judge case and the defenders would not recover the expense of that. The same would undoubtedly apply to the expenses of the present eight-day proof. That was a level of irrecoverable cost out of proportion to the sum sued for namely £50,000.

[110] So far as the points made by the pursuer in seeking to answer the above prejudice senior counsel said this: with respect to numerous other witnesses being available that could speak to the issues in dispute in the case and in particular the averred persons who were said to be available and had been resident in cottage 20 at the relevant time and the pursuer had named four children. One, Mr D A, was confirmed to be dead and Mr D J was not traced by those acting for the pursuer. Evidence was led by one of the four, Mr J, belatedly. Mr Gary Thompson gave evidence that a second potential witness, Mr A, had been traced. With respect to Mr J’s evidence senior counsel sought to make one point in relation to the issue he was presently discussing: the potential availability of evidence from other children who had been in care was a point raised by the pursuers in the B v Murray (No.2) case to offset the prejudice caused to the defenders by the death of certain significant witnesses. Accordingly this was not a point in which the instant case could be distinguished from B v Murray (No.2) on the contrary, Lord Drummond Young sympathised with the defenders reluctance to make unsolicited approaches to individuals who were formerly in care (see: para.123). Ms Bell had given evidence of the difficulties in searching Quarriers records to identify those who were in cottage 20 at the relevant time and in re-examination she was wary of unsolicited approaches because of the potential to cause distress.

That potential had been borne out in the present case following upon the approach by the pursuer’s agents to Mr A. He submitted that had the action been raised timeously the defenders would only have required to have gone to Miss D for a comprehensive answer to the allegations. Given the obvious and inevitable risk of creating distress, it was quite intolerable to expect the defenders, more than 30 years from the events, to undertake a speculative trawl for witnesses who might be able to assist in the absence of Miss D. That was all the more intolerable when the underlying premise was contrary to principle anyway. But the defenders did not need to show prejudice to the extent of a loss of all relevant witnesses; it was sufficient that they had suffered a loss of material evidence and it was his position that that was undeniable in the present case.

[111] Senior counsel in particular drew my attention to the fact that according to the evidence of Mr Dunbar there had not been much communication between house parents and therefore he was unable to name anyone who might assist. He was aware of the register of house parents who assisted and doubtless it may be said that by using that register the defenders might be able to trace some of the assistants who worked in cottage 20 from 1965 to 1971. However, even if that were to be so, it would only bring the matter closer to the facts of the case of B v Murray (No.2). It would bring the case to the point where like in B v Murray (No.2), some but not all of the relevant witnesses were missing. It was his position that given the highly personal nature of the allegations against Miss D, her absence was sufficient prejudice to the defenders. Senior counsel then moved on to look at the evidence of Mr J and it was submitted that his evidence was not relevant to the s.19A proof.

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[112] Senior counsel put forward two detailed submissions in support of the above contention: • On any view Mr J was a late witness, but at one level his potential relevance was no more than a degree of confirmation of the proposition in art.7 of condescendence that there may be “numerous living witnesses” who can speak to the issues in dispute. However, that general proposition did not negate the prejudice that the defenders had suffered as a result of the death of Miss D, and that remained true whether one simply hypothesised that other witnesses might be available or actually heard from one of them. If anything, Mr J’s evidence reinforced the prejudice to the defenders. In the absence of evidence from Miss D the defenders could no more crossexamine Mr J’s account of life in cottage 20 than they could challenge the pursuer’s account.

• On the other hand, it may have been the intent of the pursuer to allow Mr J’s evidence in support of the concluding averment in art.6 of condescendence that the pursuer’s memories were genuine because, in effect, they could be corroborated by the similar experiences of other persons in the care of the defenders at the same time. He submitted that it was important to note that Mr J’s evidence did not provide unqualified corroboration for the pursuers allegations. There was what he described as tantalising conflicts between the evidence of Mr J and that of the pursuer on certain key matters. He gave two examples: the first related to being locked in the “shed” or play area that the pursuer claims had a particular impact on him because he was afraid of the dark. Mr J confirmed that children were sent to the shed but he could not say if this happened at night. He recalled being put there in the daytime between coming home from school, at tea time or weekends.

Sending a child to the playroom in the hours of daytime was not redolent of abuse. The second example of which he referred related to being smacked

by Miss D. The pursuer said that children were called downstairs and smacked if they were caught talking in the dorm at night. Mr J said that punishment was being grounded for about one week. The foregoing observations, like the entirety of the evidence from Mr J to which they related, were merely incidental given that this was a s.19A proof and the court was not being asked to determine the merits of the case. That would be so generally in a s.19A proof but it was particularly so in the present case because the ground on which s.19A was invoked was a claim that the pursuer was suffering from dissociative amnesia. That required proof that the pursuer ceased to have memory of the substance of the allegations from 1971 to 2003. Mr J’s evidence had no bearing on that point.

[113] In conclusion, in terms of this branch of the argument, senior counsel’s position was this: the present case was a classic case within the guidance given by the House of Lords in AS v Poor Sisters: “The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to. The proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour.”

[114] Even if dissociative amnesia was to be accepted as the explanation for the delay there was real prejudice to the defenders on the various grounds put forward and that was determinative. For these reasons the pursuer’s fifth pleain-law should be repelled.

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The defender’s secondary argument

[115] Senior counsel then turned to his secondary argument, namely: that the pursuer had failed to prove dissociative amnesia.

[116] In development of his secondary argument senior counsel commenced by making certain general observations regarding the admissibility of expert evidence: the proof proceeded with both sides aware of the limit of admissible expert evidence. Expert evidence could not be led on matters that were within the experience of the judge or the jury: Lawson v HM Advocate, para.58; Gage v HM Advocate; and Kennedy v Cordia Services, para.15. Counsel contended that the reliability of human memory was, at one level at least, a matter of common human experience and therefore not a matter for expert evidence.

However, in this case that point was complicated by the fact that the pursuer relied on the presence of a specific psychiatric disorder, namely: dissociative amnesia and therefore there was no alternative but to lead evidence from psychiatrists. However, the building blocks of the diagnosis were familiar jury questions: • Did the events alleged occur?

• Were they forgotten?

• Were they the kind of event that “ordinarily” might be forgotten?

Beyond that senior counsel submitted that there was a fourth question which he intended to look at later: did the events in question cause injury?

[117] Senior counsel observed that the first three questions could as readily have been approached without the benefit of expert evidence. The significance of the expert evidence, on that view, was no more than this: it confirmed that issues such as: (a) the inconsistencies in the pursuer’s account of his relationship with his father; and (b) documented references to running away were not incidental details. They were objective signs of true unreliability.

[118] Senior counsel accepted that the first question which he had posed above gave rise to a dilemma in a s.19A proof which was not intended to be the forum for ascertaining the truth of the allegations. Rather he submitted the evidence had, correctly, focused on the second question; and it had done so on a tacit assumption: assuming that the events described by the pursuer did occur, were these events forgotten between 1971 and 2003? The defenders did not invite the court to make any findings on the first issue. It would not be appropriate to make such findings in a s.19A proof. It was submitted that a clear finding could be made on the second issue. Essentially the second issue focused on the question of whether the key averment had been proved. Determination of that issue in the defenders’ favour was sufficient for disposal of the case.

[119] Having regard to the proper limits of expert evidence senior counsel’s approach was that there were two issues which arose from the expert evidence: first, consideration had to be given to the diagnosis of dissociative amnesia from the perspective of the psychiatric evidence. The second was this: to pick up wider indications of the unreliability of the pursuer’s evidence. These two issues, were, of course, not separate because if general considerations indicated that the pursuer was unreliable, that may affect the foundation of the medical diagnosis. Doctors may assume that a patient had given them a reliable account and on that basis they may arrive at a diagnosis. However, that diagnosis ought not to be accepted by the court, if the account given was held by the court to be unreliable.

[120] Senior counsel’s approach to the evidence of the two expert witnesses was to this general effect: (1) to concentrate on the areas in which the two

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doctors agreed; and (2) on the basis of the extent of that agreement to submit that the court should not seek to resolve what he characterised as the “memory wars”. It was his position that the issues requiring to be resolved by the court did not require resolution of that particular issue.

[121] He contended that the experts agreed on the following: • The pursuer suffered from a borderline personality order and was first diagnosed with that condition in 1978.

• He also suffers from persistent depressive disorder and, with greater or less frequency, suffered from periods of depression for many years before 2003.

• The debate on “false memory syndrome” had moved on since 2006 and, in particular, both experts accepted the findings in the paper by Geraerts et al, “Recovered memories of childhood sexual abuse: Current findings and their legal implications” appended to No.6/5 of Process. His position was that the following propositions could be taken from the Geraerts’ paper.

• People who reported recovering memories of childhood abuse over a period of time, particularly in therapy, were more prone to false memories; whereas people who report “spontaneous” recovery of memory were less susceptible to creating false memories (p.170).

• People who report “spontaneous” recovery of memory have an increased tendency to forget prior instances of remembering (pp.170–171).

• Even when a prior instance of remembering can be objectively demonstrated, such people are more likely to deny having remembered on that prior occasion (p.171).

• Given the third point above, more information was needed to sort out the nature of the individual’s recollection of previously forgotten information (p.173).

[122] Senior counsel having outlined the above propositions submitted this: the court did not need to look beyond the Geraerts’ paper in relation to the expert evidence. In elaboration of that argument he submitted: a diagnosis of dissociative amnesia began with the simple proposition that information had been forgotten. Different scenarios were discussed in evidence, Professor Freeman primarily spoke of his experience with soldiers who were immediately deprived of memory of dramatic events. The pursuer was not in that category because he was alleged to have suffered delayed onset forgetting beginning at the age of 13, the contention being that “the shutters came down” as he drove away from Quarriers to a place of safety at his father’s home. He then identified the two reasons, which he submitted justified not moving beyond Geraerts: (a) The first was this: there was evidence of “forgotten remembering” by the pursuer, which called into question whether he truly forgot “the bad things” between 1971 and 2003. (b) Secondly, the pursuer exhibited one of the common signs of “forgotten remembering”: the tendency to deny objective evidence of prior remembering.

[123] It was senior counsel’s position regarding forgotten remembering that the pursuer’s key averment was that when he reached a place of safety, “he ceased to have any memory of the abuse he had suffered” until 2003. However, in relation to two of the allegations (bullying and running away from the children’s home, see: the closed record at p.7B) there was evidence of prior

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remembering. Despite the pursuer’s denial in chief and cross to any memories of the substance of his complaints between 1971 and 2003, there was evidence that the pursuer must have had a memory of at least some of the relevant events between those dates. This evidence disproved his case that he had ceased to have memory of the “bad things” in that period.

[124] Counsel in support of the above contention analysed in some detail the evidence and these submissions are conveniently set out in his written submissions and were as follows: “31. (The pursuer) moved to cottage 34 just before his 13th birthday in 1971 and in chief he described two incidents of bullying on his 13th birthday when he got in to trouble with Mrs S (the house parent) because he had dirtied two sets of clothing. Given his age we can safely assume that he was at secondary school when these incidents occurred.

32. He was specifically asked in cross whether bullying was something that he had forgotten until 2003 and he answered in the affirmative.

33. There are however references in his medical notes in the period 1971–2003 showing he remembered such.

34. In cross (the pursuer) was first asked about the letter of 19 February 1987 that simply mentions being bullied at school. This was explained as a reference to an incident when he was 6 (i.e., between stays at Quarriers) and was picked up from school by his mother. He said that it could not have been a reference to him being bullied at Quarriers because he did not have a memory of that then.

35. He was then taken to the manuscript notes of the interview to which that letter relates. Those notes refer to being bullied at both primary and secondary school with the added assistance of a contextual reference to trying to run away. His explanation was that bullying at primary school was a reference to the incident previously described when he was six and he then added that he was also bullied at secondary school after he had left Quarriers. His evidence was that it was not possible that these references were to bullying at Quarriers because the memory was not there, it had been wiped out. Even the reference to running away did not move him; the memories were blanked (or blocked) out, the shutters came down after the drive home.

36. Given the contextual reference to running away it is suggested that these are most likely to be references to a memory of having been bullied during his time at Quarriers. His poor attempt to give an alternative explanation for these entries is evidence of the tendency referred to in Geraerts’ to deny objective evidence of prior remembering. Furthermore, we can plainly see the impact of the contamination of his evidence by the past professional advice that he has received. He could not explain these entries and hid behind the mantra that he had blocked or blanked his memory.

Running away 37. Running away provides even clearer evidence of the tendency to which Geraerts referred.

38. Like sexual abuse, this was a point omitted in chief but it required only a gentle prompt to bring out a lengthy and lucid account of running away twice from Quarriers. The pursuer’s evidence was that he can even now picture being in the coal bunker and said that this was one of the memories that came back after the BBC programme.

39. (There are references in his medical records to these events in the period 1971–2003) and begin with a non-specific reference (tried to run away – while at primary school), progressing to a slightly more specific reference (‘ran away from the home’), finishing with an unambiguous statement (‘ran away from the children’s home’).

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40. In cross (the pursuer) first said that he had no memory of having said that he had run away. Later, asked to address the 1991 entry (‘the home’), he said that this must be referring to his home with his father. Questioned on the use of the definite article (the home) he then said that he could not explain that; he was not talking about Quarriers to the best of his memory.

He again referred to memories being blanked out and suggested some error on the part of the doctors. Finally, taken to the unambiguous reference to running away from the children’s home he is noted as having replied: “I do not remember saying that. If I said that then why did the memories not come back then, and not had a break down at that point instead of 2003. I would have remembered about Quarriers back then. I have no memory of saying that to the doctor.

(Can I say) If I am so bad from the age of 13 onwards, you’ve tried to say it comes from my father and mother. I think it comes from Quarriers.

I was moody, all I wanted was to go home.”

41. The court is invited to look at the general context of these entries. It is clear that these entries are referring to his time at Quarriers. They cannot reasonably be construed as references to running away from his father’s home.

42. These entries are objective evidence that the pursuer must have had a memory at times between 1971 and 2003 of at least some of the ‘bad things’ of which he now complains to have had no memory until 2003.

Again, his poor attempts to give an alternative explanation for these entries is evidence of the tendency referred to in Geraerts’ to deny objective evidence of prior remembering.

43. In some of his questions Mr Mitchell QC with respect tried to split hairs; perhaps (the pursuer) remembered running away but not the reason for it. On that view, it might be argued that having some memory of running away is not inconsistent with forgetting the ‘bad things’. That argument would be contrary to the evidence of (the pursuer). He was asked directly in cross whether he had any memory of running away before the Frontline Scotland programme in March 2003 and he answered in the negative. The court should not entertain a theory that is inconsistent with the pursuer’s answer to that question. The argument presupposes that, contrary to his evidence, the pursuer had some memory and leads inevitably to speculation about the full extent of his memory but no reliable conclusion can be reached because, again, we encounter the insurmountable obstacle that his evidence relating to the state of his memory is now contaminated.”

[125] On the basis of the foregoing evidence senior counsel invited the court to hold that the pursuer had memory of at least some of the events giving rise to the action before 2003 and that that was inconsistent with him suffering from dissociative amnesia.

[126] Beyond that he submitted: “45. It is acknowledged on all sides that, in medical terms, the pursuer would be termed a poor historian. He has very little recall of his medical history. That can be contrasted with his present clarity in relation to the details of his allegations. His, ‘utter preoccupation’, means that he can spontaneously recount his allegations. Despite his current assertion that he had no recall of the abuse until he read his notes in Epsom, one can understand why he was repeatedly asked in chief what had aroused his ‘curiosity’ to ask for his notes from Quarriers the day after the TV programme. Something must have aroused his curiosity. It is not without some significance that when asked in re-examination what had prompted him to ask for access to his records in April 2003, he said something along the lines that he remembered that (Miss D) kept records in a cupboard in

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her study.That betrays relevant memory of the detail of his time at Quarriers.

To that one can add that by his own admission he had never forgotten (Miss D) and, of course, by the time he approached Quarriers for his records he knew that she was dead. Taken with the unequivocal evidence of memory of running away prior to 2003, (the pursuer) plainly must have had a greater range of memories before 2003 than he now acknowledges. A failure to think about events is not to be confused with amnesia. It need not be concluded that the pursuer has lied. It suffices to conclude that he is an unreliable witness for the reasons discussed in this submission and, as already submitted, we probably have an unknown psychologist or psychiatrist to thank for the critical problem running through this case. The pursuer is now firmly of the view that his memory was ‘blanked’ or ‘blocked’ and the shutters had come down when he drove down the driveway as he left Quarriers in 1971 but that is no more than an unfounded assertion. It does not stand up to scrutiny.

46. Professor Freeman correctly accepted that it is oxymoronic to expect an individual who has forgotten something to be able to say when he or she first forgot it. The pursuer’s evidence, not only that he forgot the events of which he now complains, but also that he can recall that he forgot it on the drive home from Quarriers (which is when the shutters came down) is simply not tenable.”

[127] There were in addition to the above two matters other factors which senior counsel relied on in contending that the evidence of the pursuer could not be relied upon. The first of these factors was contamination of the evidence.

In the evidence of the pursuer’s wife, she was asked in chief by senior counsel for the pursuer whether she had ever had a discussion with the pursuer regarding why he had been “like this” since 2003, she responded broadly in the following terms: “Why do you feel suicidal? Just because (pause) I think what happened, the psychiatrist explained it was like what the memories in his mind was put somewhere safe, to keep him safe and that programme was like turning the heat on and all the memories came out.”

He then turned to the evidence of Dr Boakes who had said: the explanation that the pursuer was given by a psychologist and/or a psychiatrist had contaminated his evidence. As a consequence neither Professor Freeman nor Dr Boakes could get a clear explanation of: (a) the state of his memory prior to 2003; or (b) the precise trigger for his “recall” of the memories in 2003. In his evidence to the court the pursuer resorted to what counsel described as “mantra like repetition of the statement that ‘the shutters came down”’ as he drove away from Quarriers and from that point his memories of the “bad things” were “blank” or “blocked”. Particularly given the evidence of forgotten remembering one could only conclude that the whole edifice of repression of memory was built on, and derived from, the explanation that some unknown psychiatrist or psychologist had given to the pursuer probably in 2004.

[128] The second factor was this: the implications of the pursuer’s diagnosis as suffering from borderline personality disorder. Both Professor Freeman and Dr Boakes were agreed on this point. Borderline personality order would make the pursuer prone to inconsistency in his account of his relationships and senior counsel submitted that that had been seen in the course of the evidence relating to his father. In summary there was a clear contradiction between what the pursuer said to Professor Freeman (that his father hit him around the ears) and his repeated denials in cross-examination that he had been hit by his father. The significance of this point was that it went to the

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heart of Professor Freeman’s hypothesis that the pursuer was able, subconsciously, to repress his memories of the abuse when he reached a place of safety. Dr Boakes in her evidence questioned the hypothesis that memories may be forgotten when a person reaches a place of safety but the court need not resolve that debate. The simple fact was that, standing the contradictions in his evidence, the pursuer had simply failed to prove the premise that his father’s home was a place of safety. The contradictions on this issue of whether his father hit him were sufficient to reach that conclusion, but these doubts were magnified by the evidence of attempts at suicide between the ages of 13 and 21. The point was this: if the pursuer was in a place of safety then why did he attempt suicide?

[129] The pursuer’s key averments required proof of two facts:

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(1) that the pursuer was in a place of safety from the age of 13; and (2) he ceased to have any memory of the abuse he had suffered from 1971 until 2003.

[130] Proof of these two facts was also critical to Professor Freeman’s theory of dissociative amnesia. His premise was that subconscious repression of memory may occur as a protective mechanism when some victims of abuse or trauma reach a place of safety. Of course, even if the pursuer was in a place of safety, that merely provided the environment in which it was claimed that amnesia may occur. The second question was whether amnesia did occur in the pursuer’s case. The determination of each of those two facts was uniquely dependent on the reliability of the pursuer’s evidence because only he spoke to each of these matters. On the first point his reliability was undermined by the complication of his borderline personality disorder. As for the second, his reliability was undermined by the fact that his evidence was contaminated by professional advice that he had received. The pursuer’s s.19A argument could and should be rejected on the basis of these two grounds alone. The court ought not to accept contaminated evidence from the central point of issue in the case and certainly should not accept expert evidence where the factual foundation of the expert’s opinion, namely: the assumption that the pursuer was in a place of safety from the age of 13 was contrary to the evidence. The evidence of forgotten remembering provided confirmation of the strength of these two points.

[131] Having looked at the unreliability of the pursuer’s evidence with regard to the medical diagnosis of dissociative amnesia senior counsel submitted that the pursuer’s unreliability went beyond this and into his general evidence which he submitted was riddled with indications of unreliability.

[132] There were four specific areas within the evidence of the pursuer which highlighted this submission:

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being hit by his father; attempts at serious suicide prior to the age of 21; the state of his marriage; the impact of the sexual abuse.

[133] From these four factors senior counsel submitted as follows in his written submissions: “52. We do not know the truth of these matters but that is not the issue.

It is the fact that there are contradictions between the pursuer’s evidence and those entries that raises questions about his reliability. We can perhaps

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set the state of his marriage to the side because the explanation given in evidence may be tenable: the differing accounts in his medical records may be historical in the sense that they reflect the state of his marriage at the time of the various consultations with doctors. The three other matters cannot be dismissed so readily.

53. The case based on dissociative amnesia proceeds on the basis that when he left Quarriers at age 13 and reached, ‘a place of safety (he had returned to live with his father) he ceased to have any memory of the abuse he had suffered’. That can be broken down in two parts: (a) was the pursuer in a place of safety from age 13? (b) did he cease to have any memory of the abuse from age 13 until 2003?

54. It has already been submitted that being hit by his father does not fit with the picture of being in a place of safety from age 13. (The pursuer) strongly denied in his evidence in court that he was hit by his father but he had no explanation for the references in (his medical records). As already observed, any thought that the problem lies in mistaken note-taking can be ignored because we have the unchallenged evidence of Professor Freeman in both chief and cross that the pursuer told him that he was hit by his father.

55. Of course, Professor Freeman did temper the evidence of hitting by saying that the pursuer told him that there was a distinction between his father and (Miss D), the difference being that what the father did was appropriate for the time. That is irrelevant. What is crucial is that his account to Professor Freeman of being hit by his father was flatly contradicted by (the pursuer’s) evidence in court.

56. The conclusion that the pursuer has failed to prove the key averment (that he was in a place of safety from age 13) is reinforced by the lack of satisfactory explanation for the multiple references to attempts at suicide from age 15 (as listed in his medical records). Asked at the end of chief if he had felt suicidal before 2003 he gave an odd answer: ‘No, not that I can remember’. At the start of cross, asked about, ‘suicidal thoughts’ before 2003, he mentioned one incident in 1974 aged 16 when he was upset and went in to the bathroom and put a chain around his neck but he said that he did not want to kill himself for any reason. Later in cross, asked about attempting suicide aged 15, he denied having done so but accepted that he may have told people that he had and he mentioned a second incident, aged 15, at a summer camp in Aberdeen, when he was playing with the cord of Venetian blinds, which he again denied was an attempt to commit suicide.

On Day 2 his explanation was this: “ ‘When I look back I did not attempt to kill myself at 15.’

“Why then, in December 2002, was there the reference to ‘17 tried to hang self’ in the context of suicidal ideation in 2002? Finally there is the allegation of sexual abuse. It has to be recalled that this is no more than an allegation. It was omitted from his evidence in chief, but he need only to be lightly prompted in cross. The ability of the pursuer to give a lucid account of this allegation (of sexual abuse) is another example of his obsessive preoccupation with his allegations and is in sharp contrast to the tenor of the rest of his evidence, which was hesitant and largely betrayed a lack of detailed recollection. He has told us that subsequent to his breakdown he reported the sexual abuse to the police who interviewed the individual in question. The individual denied it and the police decided to take the matter no further, though the investigation is apparently still ‘open’. Though he said that this incident was only 0.5 per cent of what ran through his head compared with the 99.5 per cent contribution for the abuse by (Miss D), the peculiarity is that the pursuer contends that he rarely speaks of it

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because he finds it too upsetting to talk about. Two points can be taken from this: (a) As with the reports of attempts at suicide from an early age, the significance of the alleged sexual abuse has itself been reinterpreted by the pursuer. Gone is the belief in August 2003 that his depression from an early age may have been attributable to the sexual abuse and now he believes that it is solely due to the abuse by (Miss D). Reinterpretation of events by a man so far obsessed with this case that doctors in the NHS will not treat him until the case is over is a clear mark of unreliability. That is reinforced by the denial in cross that there ever was a period when he ruminated on the sexual abuse, which is contrary to the medical entries in June 2004 and January 2005. (b) Professor Freeman and Dr Boakes are agreed that, other things being equal, the allegations of sexual abuse are on the minor end of the scale and ought not to have had a material bearing on the pursuer’s mental health. That said, in cross, Professor Freeman conceded that it was paradoxical that the pursuer was willing to speak about the physical abuse but less willing to speak about the sexual abuse. That paradox is a further mark of unreliability.”

[134] Next senior counsel in relation to the second branch of his submissions addressed the issue of causation.

[135] Senior counsel accepted that establishment of causation formed no part of the preliminary proof. However, he submitted that the issue did have certain relevance: “58. Both Professor Freeman and Dr Boakes agree that the pursuer’s condition deteriorated after the trip to Epsom. Professor Freeman argued that because, in his opinion, there was no cause for the deterioration other than recall of his memories, this deterioration confirms that the pursuer must have been suffering from amnesia before that date. Professor Freeman, with respect, fell in to the trap of the post hoc, ergo propter hoc fallacy. The paradox concerning the sexual abuse undermines the assumption made about the cause of the deterioration but, in any event, there is reason to doubt even the account of a spontaneous recall of the memories while at Epsom. (a) If, as the pursuer maintained in both chief and cross he cried when he was admitted to the hospital in Penrith and told the doctors that he had been abused at Quarriers, why is that not recorded in the medical records? Why does the Penrith note refer to other stressors in his life at that time? (b) Both Professor Freeman and Dr Boakes have struggled to understand what the trigger might have been for his recall of the memories of the abuse. The Quarrier notes are frankly anodyne.

The best that Professor Freeman could do was to suggest in chief that the notes were an indirect trigger. His belief was that the pursuer had first read his notes in Epsom. The pursuer’s evidence was that Pam Barr had read over the notes to him at Quarriers. In cross Professor Freeman told us that he was unaware of that fact Professor Freeman candidly accepted that this makes the trigger all the more difficult to understand. (c) There may be a simple explanation here. Professor Freeman gave evidence that memories are affected by the context in which they are recalled. The example that he gave was a trip to Disneyland but in cross he accepted that the Penrith note shows a number of stressors at play on 27 June 2003 that are bound to have coloured the pursuer’s perception of his time at Quarriers. Far from it being the

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case that the pursuer was recovering memories forgotten since 1971, the most likely explanation is that in 2003 he found himself, in a dark situation, thinking over memories that he may not have thought about in recent times. That is consistent with the other evidence of ‘forgotten remembering’ and is not consistent with amnesia.”

[136] Before concluding his submissions in relation to branch two there was one further broad submission made by senior counsel and that related to what he described within his written submissions as the alternative theory. In terms of this part of his submissions it is conveniently summarised within his written submissions as follows: “47. In re-examination Professor Freeman seemed to modify his theory.

He postulated an explanation for the possibility that the pursuer might have occasionally remembered matters such as running away; he argued that dissociative amnesia can be continuous or episodic. The psychological mechanism that may cause periods of amnesia was not explained but we need not pursue that matter. The fact that there may have been periods of remembering is all that matters. There is a grave risk that one gets distracted by the pursuer’s whole life story. The proper focus is on the question whether the pursuer has proven a reason for him having failed to raise proceedings during the triennium, which means before he turned 21. The period when he was aged between 13 and 21 is the vaguest period in his life and subject to the gravest questions about his reliability on points of detail such as his relationship with his father and the references in his medical records to attempts to commit suicide. Those will be discussed later in this submission.

Far from providing an answer, the alternative theory accentuates the problem. It leaves wide open the possibility that the pursuer had memory of the events during the period from age 13–21 and that is fatal to his case.

Dr Boakes 48. The examination in chief of Professor Freeman proceeded on a number of mistaken assumptions regarding Dr Boakes’S evidence. One has already been commented upon. A second mistaken premise was that Dr Boakes was open to criticism for not committing herself to any one explanation as an alternative to dissociative amnesia. Dr Boakes is not open to criticism. She cited the McNally & Geraerts article in 2009 that postulates a number of alternative explanations. She told us of some of the relevant possibilities. In chief her evidence was that she could not be more specific because of the uncertainties in this case. That is an entirely proper approach to take. Indeed, given the wide range of inconsistencies and contradictions, it is settling on one conclusion (dissociative amnesia) that is unjustified.”

[137] Senior counsel summarised his position on the second branch of his argument as follows: one of the propositions advanced in Geraerts’ article is that more information was needed to sort out the nature of the individual’s recollection of previously forgotten information. The court now had the benefit of more information in the form of the pursuer’s evidence to the court and during this proof detail emerged of which the experts were unaware at the time they examined him. He submitted that two conclusions could be drawn: • the pursuer was generally an unreliable witness; • more specifically in relation to dissociative amnesia, the proven instances of forgotten remembering were contrary to the key averment of dissociative amnesia from the age of 13.

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He invited the court to ask itself this question: on the assumption that the alleged abuse took place, has it been proved that proceedings were delayed

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until December 2004 because the pursuer was suffering from dissociative amnesia from 1971 to 2003? The court was invited to answer that question in the negative. He submitted that the pursuer was so unreliable a witness that no positive conclusion could be reached in his favour. In summary, there was evidence of forgotten remembering that warranted a negative answer adverse to the pursuer.

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[138] I would at the outset wish to express my appreciation for the careful and comprehensive submissions of both senior counsel.

I would intend to consider the questions before me in the order in which senior counsel for the defenders looked at them in the course of his submissions, namely: to examine first this question: assuming that the pursuer has proved that after leaving Quarriers at age 13 he ceased to have any memory of the abuse he suffered, due to an involuntary process known as dissociative amnesia, is it equitable to allow the action to proceed?

[139] In considering the above question I have adopted the approach of: McHugh J in Brisbane South Regional Health Authority v Taylor as followed by Lord Drummond Young in B v Murray (No.2) and approved by the House of Lords in the AS v Poor Sisters.

[140] The proper approach to the above question is encapsulated by Lord Hope in AS v Poor Sisters where after considering the judgment of McHugh J he says this: “The court must of course give full weight to the explanation for the delay and the equitable considerations that it gives rise to. But proof that the defenders will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour. This is a question of degree for the judge by whom the discretion under section 19A is to be exercised.”

[141] It was a matter of agreement between parties that the burden of establishing that the court should exercise its discretion in terms of s.19A to allow the action to proceed falls on the pursuer. He has, as McHugh J observes in Brisbane South Regional Health Authority v Taylor: “The positive burden of demonstrating that the justice of the case requires that extension.”

[142] The starting-point is therefore to examine the pursuer’s explanation for the delay and the equitable considerations it gives rise to. In accepting, for the purposes of considering this question that the reason for the delay in raising the action was dissociative amnesia it follows that: first, the pursuer’s failure to bring the action timeously was through no fault on his part and secondly, the dissociative amnesia was caused by the legal wrong which gives rise to the present proceedings.

[143] I accept that as [was] said by Lord Hoffmann and Lady Hale in A v Hoare that the reasons for delay are highly relevant in the exercise of the discretion (Lord Hope in AS v Poor Sisters says the same in the passage above quoted). Whereas here I am assuming that there was no fault on the part of the pursuer in the delay in raising the action and moreover the delay resulted from the legal wrong which is the subject of the action these are factors which should weigh heavily in favour of the pursuer when striking the balance of equities.

[144] However, it appeared to be senior counsel for the pursuer’s position that the observations made by Lady Hale and Lord Hoffmann in A v Hoare

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undermined or put a gloss on the observations of Lord Hope as to the approach to the exercise of the discretion as set out above. I am persuaded that this assertion by senior counsel for the pursuer is wrong. A v Hoare was cited and considered in AS v Poor Sisters. Lord Hoffmann was one of the justices sitting in AS v Poor Sisters and he dismissed the appeal for the reasons given by Lord Hope. Accordingly, Lord Hope’s guidance was given in the light of what had been said earlier in A v Hoare and therefore nothing said in A v Hoare in any way undermines what was said by Lord Hope in AS v Poor Sisters. I agree with senior counsel for the defenders submission: the decision i[n] A v Hoare is subsumed within the conclusion of the House of Lords in AS v Poor Sisters.

The key guidance given on the questions before me is that given by Lord Hope.

[145] However, accepting that the late raising of the pursuer’s action was not due to his fault did no more than place him in the same position as the pursuers in B v Murray (No.2), where it was accepted by Lord Drummond Young that the failure to raise the action timeously was not due to fault on the part of the pursuers, but rather due to various conditions from which they suffered.

[146] For reasons which I will now discuss I am persuaded that the equitable factors in favour of the exercise of the discretion in favour of the pursuer are far outweighed by the significant prejudice to the defenders if the action were to proceed. I believe, if the case were to proceed, the defenders could not be given a fair trial.

[147] I now turn to consider the issue of prejudice in the instant case. I would observe that I have reviewed and been greatly assisted by the most helpful exposition of the development of judicial opinion on the approach to be adopted by the court in considering the exercise of its discretion in terms of s.19A and the relevant factors to which the court should have regard when considering the exercise of its discretion by Lord Drummond Young in B v Murray (No.2). The key question in considering prejudice is this: have the defenders as a result of the delay in raising the proceedings suffered prejudice of a significant kind?

Prejudice to the defenders case by the loss of evidence

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[148] In this case the allegations of abuse are directed against a single person, namely: Miss D. It was not a contentious matter that Miss D died at a date that was within the triennium, namely: on 30 January 1980 (see No.7/9 of Process).

[149] I am persuaded that it is difficult to envisage a more highly material loss of evidence to the defenders than the denial to them of the evidence of Miss D. I accept senior counsel for the defenders’ submission that the loss of Miss D’s evidence is more grave than the loss of evidence in the AS v Poor Sisters case where some of the alleged abusers were still alive. It appears to me that where the allegations of abuse are made against a single person and that person’s evidence has been lost to the defenders then it is really impossible for the defenders to have a fair trial. The defenders are denied the evidence of what would have been their most important witness. They are not able to properly defend themselves. They cannot, without Miss D’s evidence, properly cross-examine the pursuer as to the merits of his claim. Nor can they properly cross-examine any witness he may produce in support of his claim such as Mr J. [150] Beyond the above it was clear from the evidence that it would be extremely difficult to find other witnesses who were present in cottage 20 at

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the material time. Ms Bell in her evidence made it clear that the defenders’ records (which were now in a digitised form) were held under the names of individual children and could not be searched by the entry of “cottage 20” and thus identify children who resided in that cottage at the material time. Thus the defenders in order to seek to identify children who were in cottage 20 at the material time would have to check through all of their records. That appears to me to be a hugely time consuming and very expensive exercise.

[151] Suggestions were made by senior counsel for the pursuer in the course of his cross-examination of Ms Bell, that new software could perhaps search the records more speedily and identify who was present in the cottage at the material time, however, Ms Bell was unable to give any concluded view on this and no expert evidence was led as to whether such searches could be carried out on these digitised records.

[152] Even, if such children could be identified, there is clearly an issue as to whether it is appropriate to approach such children, unsolicited and out of the blue, about events which occurred many years ago. Ms Bell in her evidence was wary of such approaches. Lord Drummond Young at para.123 in B v Murray (No.2) said this about such approaches: “Dr Abernathy stated that the defenders were reluctant to make unsolicited approaches to children who had been in care at the material time to discover whether they had any relevant evidence, even if the current whereabouts of such children could be traced. I find this entirely understandable. Records are available and in respect to visitations undertaken by the second defenders at Cardonald. These are in very general terms, however, and the individuals responsible for the visitations are now all dead apart from one who is resident in Australia.”

[153] If any confirmation were needed as to why such reluctance is justified it was provided in this case by what occurred following upon the unsolicited approach by the pursuer’s agents to Mr A which was this: he was upset and distressed by the approach.

[154] Senior counsel for the pursuer sought to advance an argument that such approaches were appropriate, despite what he described as Mr A’s “unfortunate reaction”. He referred to people who approached the defenders and obtained their records. There was evidence from Ms Bell that such approaches were made. That is an approach by the former resident, not an unsolicited approach and is completely different from what senior counsel for the pursuer was suggesting. He also referred to residents being approached in terms of a government project. Again that type of controlled project seems very different from the approach which would have to be made by the defenders.

[155] The raising of their childhood with persons who have spent time in a children’s home is clearly a very sensitive issue. It may raise all sorts of memories for that person. In such circumstances it appears to me that the defenders are right to be wary about making unsolicited approaches to such persons. I am satisfied that it is entirely inappropriate for the defenders to make unsolicited approaches to such persons where the results can very easily be of the type exhibited by Mr A. [156] With respect to seeking to identify other staff members who may have relevant evidence in relation to this matter, it is clear that the only members of staff who could be approached would be those who worked in cottage 20 at the material time. Mr Dunbar in his evidence made it clear that each cottage was an individual unit and each cottage had its own rules. Thus those working in

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other parts of Quarriers at the material time would not be in a position to give any real insight into what may have been happening at cottage 20 at that time.

[157] No.7/26 of Process showed the names of two assistants who worked in cottage 20 at the material time. However, I accept senior counsel for the defenders’ argument that even if these two persons could be traced at this distance from the events, this does not make up for the absence of Miss D. The allegations against Miss D could properly be described as highly personal and for the reasons I have already given the finding of these assistants could not make up for the loss of her evidence. It is noteworthy that the most serious allegations of abuse made by the pursuer against Miss D appear to have happened in private and at night. In any event even if they could be found, as submitted by senior counsel for the defenders, this would put the defenders in no better position than the defenders in B v Murray (No.2).

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[158] The length of delay is of itself an important factor prejudicing the defenders’ position. The triennium expired on 22 April 1979. The first notification of the claim to the defenders was dated 22 July 2004 and the present action was signetted on 17 December 2004. The events which are the subject of the action date from more than 40 years ago, namely: between 1965 and 1971. Thus these events ended 33 years before the raising of the action.

This action by the date that it was raised was very stale. This raises the issue of not simply the entire loss of evidence but the decline in the quality of evidence that is available.

[159] Lord Drummond Young in B v Murray (No.2), considers the possible prejudice which may arise in a case of such age and makes the following observations at para.24: “Two further aspects of McHugh J’s opinion call for particular comment in the present case. The first of these is his comment that important and perhaps decisive, evidence may have disappeared without anyone now ‘knowing’ that it ever existed. That consideration is particularly important in a case where events occurred more than 20 years before any action was raised, and where the actual disputes are likely to relate not merely to one or two vivid incidents but to the everyday currency of the daily life of those involved. The present cases are of that nature; while a few specific incidents are highlighted in the pursuers pleadings, the major part of their complaints relates to a culture where repeated physical punishment was the norm. It seems very obvious that many of the details of daily life so long ago will have been forgotten and will be incapable of retrieval. That inevitably results in a marked deterioration in the quality of justice.”

[160] In my view the above observations are pertinent to the circumstances of this case; which is even staler than the cases in front of Lord Drummond Young and where again the complaint relates to a culture put in place by Miss D within cottage 20. I agree with his conclusion that in these circumstances even if witnesses could be obtained: “details of daily life long ago will have been forgotten and will be incapable of retrieval” and that the result is “a marked deterioration in the quality of justice”. I am persuaded that given how stale the instant case is and the nature of the case the decline in the quality of justice would be material. It flows from the above, as observed by Lord Drummond Young, that inevitably this will have a serious effect with respect to the cross-examination of witnesses.

[161] There is a further aspect to the issue of delay and this is described by Lord Drummond Young at para.22 in B v Murray (No.2) as follows:

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“The loss of evidence and the decline in its quality are especially important when the delay following the events complained of is measured in decades rather than years. Cases involving such a delay present one particularly difficult feature. This is the proper understanding and assessment of events that occurred at a time when social attitudes were markedly different from those that now prevail. It would be quite unfair to judge events by any standards other than those that prevailed at the time; the social attitudes of today cannot be the test of matters that occurred 20 or 30 years ago. Consequently a judge who is called upon to decide a question relating to events of the 1950s, 1960s and 1970s must assess the propriety of what happened against the standards that then prevailed in society. That is not easy. It involves historical reconstruction not of events themselves but of the underlying perceptions and attitudes that underlay those events, which is a much more subtle exercise. This point is especially well illustrated by the present cases. The pursuers’ complaints relate in large measure to the administration of corporal punishment. In the 1960s, and probably also in the 1970s, corporal punishment was the norm in Scottish schools and homes. Now it has been abolished in schools, and is to be substantially restricted even in the home. It can scarcely be doubted that these changes in practice reflect changes in the general attitudes that prevail in society. Nevertheless, the allegations of excessive corporal punishment must be assessed not against the norms that would be considered reasonable today but against the norms that were considered reasonable between 25 and 50 years ago. No doubt it can be said that anyone who was at school in the 1950s and 1960s will be aware that attitudes to corporal punishment were different, and will indeed probably have had direct experience of those different attitudes. It may also be possible to point to contemporary documents that indicate the sort of standards that were considered acceptable at the time. What is required for a proper assessment of events, however, is an appreciation of the cultural climate that prevailed in schools and homes at that time. This is relevant not merely to determining whether there was an excess of corporal punishment in any particular case. It is also relevant, if there was such an excess, to determining how serious the resulting injury is likely to have been, and what is reasonable compensation must be measured against the standards of the time when the individual pursuers were in the care of the defenders, not the standards of today. A beating that today seems clearly excessive might have seemed only slightly above the norm at that time, and the compensation for it would have to be reduced accordingly. Moreover, it must be borne in mind that the most serious injuries complained of by the pursuers are psychological in nature. What they seek compensation for is not so much the pain and suffering caused by any particular beating but the cumulative psychological effects of repeated physical punishment. Once again, the relevant standard is the social and educational norms of the 1960s and 1970s, not to those of today. When physical punishment was widespread the effect of any individual instance was clearly less than be the case today. All of these matters make the judge’s task, at a range of between 25 and 45 years, peculiarly difficult.”

[162] Senior counsel for the pursuer’s position with respect to this factor was that it was not relied upon by the defenders. I do not believe that he is correct in saying this. The defenders’ submission on delay were made in the context of what Lord Drummond Young had opined in B v Murray (No.2). In their written submissions they relied on this at p.9: “The passage of time is itself significant. The events in question ended in 1971, more than 33 years before the action commenced in December 2004 and more than 43 years before the preliminary proof.”

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[163] Against that background I believe I am entitled to have regard to the issue of social mores and the changes in these since these events occurred.

Senior counsel for the pursuer’s position was that in this case the change in social mores was not in any case relevant given the nature of the abuse. I am not persuaded by this argument. The abuse founded upon by the pursuer includes: being required to call Miss D “mummy”, “being forced to eat all his food” and the way Miss D dealt with bedwetting. On all these matters, social mores I am sure, have changed markedly over the last 40 years. Equally in relation to excessive physical chastisement, what he complains of in terms of degree is not very different from what the complainers in the B v Murray (No.2) case alleged (see: paras 5–15). Accordingly, I am satisfied that the delay in bringing this action causes further prejudice in that it would be difficult to reconstruct the social attitudes of the 1960s and this again leads to a serious decline in the quality of justice.

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[164] In relation to the effect of the decision in Lister v Hesley Hall Ltd senior counsel for the pursuer’s first argument was that because the pursuer’s case involved physical and not sexual abuse Lister v Hesley Hall Ltd had not altered the law, it only having altered the law in relation to vicarious liability in the sphere of sexual assault.

[165] I do not believe that the above is a correct understanding of the law.

In Lister v Hesley Hall the House of Lords were looking at what was known as the Salmond test which with respect to vicarious liability drew a distinction between unauthorised conduct on the part of an employee and an unauthorised mode of carrying out work.

[166] The perceived difficulty with that test was said by the House of Lords to be highlighted in the judgment of Butler-Sloss LJ at p.591 in Trotman v North Yorkshire County Council at para.18: “Having looked at some of the relevant decisions on each side of the line, it is useful to stand back and ask: applying general principles, in which category in the Salmond test would one expect these facts to fall? A deputy headmaster of a special school, charged with the responsibility of caring for a handicapped teenager on a foreign holiday, sexually assaults him. Is that in principal an improper mode of carrying out an authorised act on behalf of the employer, the council, or an independent act outside the course of his employment? His position of caring for the plaintiff by sharing a bedroom with him gave him the opportunity to carry out the sexual assaults.

But availing himself of that opportunity seems to me to be far removed from an unauthorised mode of carrying out a teacher’s duties on behalf of his employer. Rather it is a negation of the duty of the council to look after children for whom it was responsible. Acts of physical assault may not be so easy to categorise, since they may range, for instance, from a brutal and unprovoked assault by a teacher to a forceful attempt to defend another pupil or the teacher himself. But in the field of serious sexual misconduct, I find it difficult to visualise circumstances in which an act of the teacher can be an unauthorised mode of carrying out an authorised act, although I would not wish to close the door on the possibility.”

[167] It is evident from the above passage that the Salmond test was equally applicable to sexual and physical assaults and that at least at the end of the spectrum relating to physical assaults by an employee on a child that was generally believed to fall within the category of unauthorised conduct for which there was no vicarious liability. The principal allegation made by the

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pursuer against Miss D is of repeated physical assaults and he is submitting that these amounted to criminal acts in the same way as if he had been sexually abused by a member of the staff while at Quarriers.

[168] It appears to me that Lord Drummond Young’s observations at para.118 in B v Murray (No.2) first when considering the state of the law prior to Lister and then his observations as to the change in the law following upon Lister accurately reflect the law before and after Lister. He observed as follows: “Lister can perhaps be regarded as an example of a more liberal approach to vicarious liability that has developed over the last ten or 15 years; the speeches in the House of Lords seem to support such a view. Sheriff AG McCulloch, who when still in practice as a solicitor had acted as Edinburgh agent for the pursuer, was asked in cross-examination about this matter. He was a very experienced personal injuries lawyer, and his views are accordingly worthy of note. He accepted that the question of vicarious liability had been clarified by the decision in Lister. He further accepted that in the 1980s the attitude of the legal profession to the present claims might have been different, although he stated that he would like to think that the pursuers would not have been turned away without a remedy. He did accept that these cases involved to some extent pushing out the boundaries of the law.

“I think it is clear that, if the present cases had been brought within the statutory time limits, that is to say, by at the latest 9 January 1990, it would have been difficulty if not impossible for the pursuer to establish vicarious liability on the part of the defenders for the criminal actings of individual nuns. It is perhaps significant that the members of the House of Lords attach particular importance to two Canadian cases decided in 1999.

That illustrates how recent developments in this area of the law have been. I accordingly conclude that there is significant prejudice to the defenders as a result of changes in the law since the statutory limitations periods expired.”

[169] I am persuaded that if the instant case had been brought within the statutory time limits and thus prior to the decision in Lister, the pursuer’s case founded principally, as I have said, on the alleged criminal assaults on him by Miss D it would have been difficult if not impossible for him to be successful, in that it would have been difficult if not impossible to establish vicarious liability for the acting’s of Miss D against the defenders. Senior counsel put forward a second argument on this issue and it was this: even if the conduct was excluded pre-Lister, a change in the common law was different from a change in the law by means of statute. I am not persuaded by this argument.

In the context of prejudice to the defenders the point is this: if the pursuer’s action had been brought within the triennium the matter would have been dealt with as the law was understood pre-Lister. On the other hand if the action was allowed to proceed now it would be dealt with as the law now is understood post-Lister. Under the law pre-Lister as I have above said the pursuer’s most serious allegations, namely: the physical assaults would not have resulted in the establishing of vicarious liability on the part of the defenders or it would have at least been very difficult to establish vicarious liability on the part of the defenders. In terms of the law post-Lister there is no question that the defenders would be vicariously liable for such actings by Miss D. Thus the defenders have been significantly prejudiced by the change in the law and it is irrelevant how that change in law has been brought about.

[170] For all of the above reasons I am clear that the defenders position has been significantly prejudiced by the change in the law affected by Lister, which changes have occurred since the expiry of the triennium period.

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Prejudice to defenders by the cost of the litigation and the irrecoverability of expenses

[171] A further factor which requires to be considered is the likely level of award to be made to the pursuer if he were to be successful. This was held to be a relevant factor for consideration by the court in the exercise of its discretion in provisions similar to s.19A in Adams v Bracknell Forrest Burgh Council, para.33.

[172] A further factor which is of relevance is the expenses incurred and likely to be incurred by the delay in the defending of the action see: Forsyth v A F Stoddard & Co Ltd, para.29 and Lannigan v Glasgow City Council, para.39.

[173] As to the likely level of award in this case the pursuer only concludes for ÂŁ50,000. As to what the pursuer would eventually recover there are clearly other factors at play in his condition beyond what is said to result from his alleged abuse at Quarriers. The pursuer admits on record his long history of psychiatric and psychological problems and he has been seen by psychiatric services from the 1970s. He has a personality disorder. He suffers from a depressive condition. There have been various other difficulties in his life.

Against that whole background, any award made, may not be a particularly large one.

[174] Turning to the issue of expenses there has already been a five-judge appeal in this case in which the defenders were successful. Further there was a procedure roll in which the defenders were successful. In addition the matter has had to call for procedural hearings before this court on a large number of occasions. The preliminary proof before me lasted for eight days. Further investigation of this case as in all cases of historical abuse would be difficult and costly. The pursuer is legally aided and the result of this would be that any award of expenses in favour of the defenders would in practical terms not be recoverable.

[175] Taking all those circumstances into account I believe the costs would be disproportionate to any award likely to be made to the pursuer. I believe this factor is a minor one, however, it is a factor I am entitled to take account of in the overall balancing exercise.

[176] In this case I am satisfied that the prejudice caused by: the loss of evidence; the lapse of time; and the change in the law brought about by the decision in Lister each on its own results in significant prejudice to the defenders. Taken together they clearly, I am persuaded, amount to significant prejudice to the defenders. In addition there is a further, if less significant factor, of the irrecoverable costs. Having regard to that level of prejudice I conclude that the defenders could not receive a fair trial. I do not believe it would be fair and just to require the defenders to meet the claim on the merits standing the material prejudice I have set out. I believe as I stated at the outset that the factors in favour of the exercise of discretion are far outweighed by this prejudice.

Second issue

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[177] My above decision is sufficient to decide the matter before me, however, having regard to the submissions made before me I believe it appropriate to consider the second broad issue in the case: Did the pursuer: (1) establish he was suffering from dissociative amnesia? and (2) establish the key averment at art.7 of condescendence?

[178] The first question for the court in considering the above questions is: assuming that the abuse happened, was it forgotten?

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[179] It is convenient at this stage to set out certain evidence in relation to which there was no dispute between the experts: First on the evidence there was no dispute that: (a) the pursuer suffers from a borderline personality disorder and was first diagnosed with that condition in 1978[; and] (b) he also suffers from persistent depressive disorder and with greater or less frequency, suffered from periods of depression for many years before 2003.

[180] Beyond that, I would observe, that in order to decide the questions regarding the key averment it has not been necessary to consider and come to a view upon what the literature and the two medical experts described as the memory wars. On a reading of the pleadings and in the early stages of the proof it appeared that the issue of false memory syndrome was a live one.

However, by the stage of submission it was clear that this syndrome did not form an issue. It became clear on hearing the evidence that both experts held the view that not all recovered memories were false. Dr Boakes, had changed her view between the preparation of her first and second reports, it having originally been her position that all such recovered memories were false. She had altered her view in light of developing research in the area.

[181] There seemed, as submitted by senior counsel for the defenders, to be a coming together of the two experts views around the opinions expressed in two papers in which one of the authors was Elke Geraerts. These papers were: ‘Recovered memories of childhood sexual abuse; current findings and their legal implications’ (see: App. to No. 6/5 of Process) and Geraerts E et al 2007 on ‘The reality of recovered memories, corroborating continuous and discontinuous memories of childhood sexual abuse.

[182] In her evidence Dr Boakes relied on this second paper. It was referred to at para.8.12 of her report No. 7/18 of Process.

[183] With respect to Professor Freeman he cited the first of these papers in his report No. 6/5 of Process. He accepted in his evidence that both he and Dr Boakes were using Geraerts’ papers. He agreed with what Dr Boakes said at para.8.12 of her second report about Geraerts’ 2007 paper and agreed with the research and opinions contained therein. Beyond these first two papers was a third paper involving Geraerts. This was McNally & Geraerts 2009, ‘A new solution to the recovered memory debate’ (No. 7/27 of Process). Dr Boakes relied on this paper. She described Professor McNally as the foremost authority in this area and said that the significance of the paper was that it put forward a non-polarised view and took a look at how some recovered memories could be true. Professor Freeman found McNally and Geraerts’ paper supportive of dissociative amnesia. He agreed that Professor McNally was highly respected and that the paper by McNally and Geraerts had a degree of standing and was based on a respected body of opinion. He said that what the authors had described as repression of memory he called dissociative amnesia.

He accepted that the McNally and Geraerts’ paper showed there was a responsible debate surrounding dissociative amnesia. On reviewing his evidence I could not find any point at which Professor Freeman expressed disagreement to any material context with the views put forward in the first two papers by Geraerts. With respect to the third paper involving McNally and Geraerts he found some support for his views on dissociative amnesia. He accepted that the McNally and Geraerts’ paper showed there was a responsible debate surrounding dissociative amnesia.

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[184] On reviewing his evidence Professor Freeman in particular, as I understood it, accepted that the first three of the four propositions which in the course of his submission, senior counsel for the defenders sought to take from the first Geraerts’ paper were correct.

[185] Against that background of agreement between the two experts I turn to consider the questions which I set out at the start of this section of my discussion.

[186] Given the measure of agreement between the experts as above noted it appears to me that the appropriate starting-point is to consider the issue of forgotten remembering.

[187] There were two broad categories of what senior counsel for the defenders contended was forgotten remembering: (a) bullying; and (b) running away by the pursuer from Quarriers.

[188] With respect to these matters their context was notes in the pursuer’s medical records which referred to him speaking of bullying and running away.

The pursuer sought to explain these entries while maintaining his position of not remembering any of the bad stuff until 2003. Senior counsel for the pursuer accepted in his submissions that the explanations given by the pursuer relative to these matters were not entirely convincing. I am clearly of the view that the explanations given by the pursuer were entirely unconvincing in relation to these issues. I accepted all of the submissions made by senior counsel for the defenders in relation to whether the pursuer’s explanations were convincing. For all these reasons I hold that they were not convincing.

The most telling factor in in so holding was this: his explanations when looked at could not be fitted to any extent with what was said within the contemporaneous records.

[189] As senior counsel for the pursuer submitted, merely because I have not accepted the pursuer’s explanations as convincing that does not mean that these are examples of forgotten memory. It was his position that the matters relied on by senior counsel for the defenders were not properly understood elements of “the bad stuff”.

[190] With respect to running away I am persuaded that on the evidence this was as a result of the bad stuff and should properly be understood as an element of the bad stuff and therefore of forgotten remembering.

[191] The pursuer’s position was that he ran away from Quarriers twice and that this was one of the memories which came back to him in 2003.

Senior counsel for the pursuer, sought to suggest that this was not part of the bad stuff and may have been as a result of general disaffection with life in Quarriers. I am not persuaded by this submission. First, the pursuer said it was one of the memories which came back in 2003, which by definition, shows that it was part of the bad stuff. If it was not part of the bad stuff why had he remembered it, according to him, only in 2003?

[192] Secondly, in evidence he said that on two occasions he had run away.

It was noteworthy that on record at art.4 of condescendence at p.7, letter B at the end of a section dealing with abuse which the pursuer alleged happened at Quarriers there is the following averment: “The pursuer ran away on two occasions.”

[193] The above averment I believe must refer to the two incidents to which the pursuer spoke in evidence. There is I believe no explanation for the foregoing averment being made on behalf of the pursuer at this point within the narration of his case unless it had been said to the pursuer’s agents by the pursuer that those incidents of running away flowed from the bad stuff that had been done to him by Miss D.

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[194] I conclude that the entries relied upon by the defenders in relation to running away are examples of forgotten remembering. It seems to me that this is a significant example of forgotten remembering.

[195] Equally with respect to the bullying I am persuaded that this is another example of forgotten remembering. Again senior counsel for the pursuer sought to explain this in broadly the same way as he had sought to explain the running away, namely: that it did not form part of the bad stuff.

Again I do not accept this explanation. Once more the pursuer accepted in evidence that this was something he had forgotten about until 2003 and therefore by definition it forms part of the bad stuff which he had forgotten due to dissociative amnesia.

[196] Senior counsel for the pursuer further in response to these points regarding forgotten remembering argued this: he pointed to the very extensive records relating to the pursuer which contained no reference to the bad stuff and on a single occasion contained in No.7/2 of Process at p.194 this entry “denies any abuse”. It was his position that if the pursuer had at any stage prior to 2003 remembered any of the bad stuff then given these extensive records there would be some reference therein to the bad stuff. I have considered that submission and I do not believe that it answers the above points regarding bullying and running away. These specific references in his records I believe do show, despite the lack of mention elsewhere of the bad stuff, memory of elements of the bad stuff by the pursuer prior to 2003.

[197] In summary I believe that the objective evidence shows that the pursuer had some memory of certain of the bad stuff pre–2003. I conclude that this being the case, that such evidence is inconsistent with his suffering from dissociative amnesia until 2003.

[198] It is perhaps convenient at this point to deal with what senior counsel for the defenders described as Professor Freeman’s alternative theory: this was to the effect that dissociative memory could be continuous or episodic and this could explain the pursuer’s memories pre–2003 relative to these matters.

However, this does not assist the pursuer for the reason advanced by senior counsel for the defenders, namely: for the purposes of considering the issues before the court it is sufficient that he has at some point pre–2003 remembered some element of the bad stuff.

[199] Another matter which strongly tended to undermine the pursuer’s position that he had no memory of the bad stuff pre–2003 was this: the lack of explanation as to what following the TV programme aroused the pursuer’s interest to recover his records from Quarriers? When asked in evidence in chief about this he simply said that after he saw the programme—went for records. He was again asked about this at the start of re-examination and said that he “wanted to see if Quarriers had records relative to me” then asked “what made him curious?” and answered: “don’t know it was after programme—wondered if any records—can’t explain”. The matter was returned to by senior counsel for the pursuer at the end of re-examination and when asked about what about the Frontline Scotland programme motivated him to go to see the records the pursuer answered: “I can’t say why—wondered if they had any records.”

Senior counsel for the pursuer then asked: “Was there a specific focus to your curiosity?”

The pursuer answered: “If said no records I wouldn’t have enquired further.”

Senior counsel for the pursuer did not leave the issue but rather asked a further question: “Why did this specific programme make you curious?”

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The pursuer answered: “No records given to father when left. Remembered Miss D kept records in a cupboard—curiosity—nothing specific—just curiosity.”

Once more senior counsel for the pursuer pursued the matter and asked: “Why want to find out what happened to Quarriers?”

The pursuer answered: “Not what happened curious to know if had records.”

The pursuer continued by saying that it was when he went down to Epsom following upon his having received the records that the bad stuff came back to him.

[200] I believe that the pursuer’s answers regarding this matter completely lacked plausibility. There must have been something which aroused his curiosity and made him seek his records. His position that he just wanted to see if Quarriers had records relative to him made no sense. Why did he want to know if they had any records relative to him? There is according to his evidence no trigger for this request. There is not said to have been anything about the programme which he watched on television which appears to have been a trigger. Senior counsel for the pursuer, as I have set out above, repeatedly in re-examination sought from the pursuer an explanation for his actings, however, he could obtain none. The repeated questioning by his senior counsel relative to this point, it seemed to me, emphasised the importance of this section of the evidence and the oddity of the pursuer’s position which again was very repetitive and had a mantra like feel to it. It appears to me that the common sense and obvious explanation for his seeking his records is that he had some memories of the bad stuff at that time, namely: before he had the records and went down to Epsom when he said these memories returned. In my view this conclusion is reinforced by the pursuer’s evidence which was to the effect that there was nothing in particular in what was shown in the programme that triggered his application for the records. Accordingly I believe it must have been memories on his part which already existed of the bad stuff which caused him to then apply for the records.

[201] I believe that the above evidence is strongly indicative of the pursuer having memories to some extent pre–2003 of some element of the bad stuff.

His evidence of going to Quarriers to get his records is inexplicable unless he had some such memories.

[202] For all the above reasons I am persuaded that the pursuer had memories of the bad stuff pre–2003.

[203] I now turn to the issue of the pursuer’s explanation as to when he forgot. Throughout his evidence the pursuer maintained that he could remember when he forgot and referred to his memories of the bad stuff being “blanked” or “blocked” and the shutters coming down when he was being driven away by his father from Quarriers.

[204] Senior counsel for the defenders referred to Professor Freeman accepting that it was oxymoronic to expect an individual who says he has forgotten something, nevertheless, to remember when he forgot it. It was, however, the position that the pursuer insisted he remembered when he had forgotten. That assertion makes no sense and cannot possibly be correct. This piece of evidence I am persuaded fundamentally undermines the acceptability of the pursuer’s evidence.

[205] Moving on, I turn to the issue of the pursuer’s general reliability and that was addressed under three heads by senior counsel for the defenders: • attempted suicide • being hit by his father • impact of sexual abuse

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[206] The pursuer’s case on dissociative amnesia proceeded on the basis that when he left Quarriers and returned to his father he was in a place of safety.

[207] Both, within the medical records and in the evidence of Professor Freeman there was reference to the pursuer having been hit by his father. This was denied by the pursuer in evidence.

[208] There are two separate aspects to this evidence. First, was returning to his father a place of safety for the pursuer? Senior counsel for the defenders submitted it could not be regarded as such given this evidence. On the other hand senior counsel for the pursuer’s position was that there was a difference in scale between what was normal chastisement by the father and the abuse by Miss D and that the pursuer could have perceived his father’s home as a place of safety and perception was according to what Professor Freeman had said in evidence was what was important. On balance I prefer senior counsel for the defenders’ position regarding this, the pursuer’s evidence regarding whether his father had hit him was contradictory. On top of this were the references to his attempted suicide following his return to his father. On the basis of this I could not hold myself satisfied that the pursuer regarded his father’s home as a place of safety.

[209] The second aspect of this evidence is this: how does this evidence affect the pursuer’s reliability. I am in no doubt that this evidence undermines the pursuer’s reliability. The pursuer’s evidence on this aspect is clearly unreliable. The entries in the records were not challenged. The pursuer’s explanations for these entries were again implausible. His evidence was contradictory.

[210] With reference to the suicide attempts I have set out above how I believe these interrelate with the father’s behaviour towards him and cause me to find that it was not established that he regarded the father’s home as a place of safety. With respect to the reliability of the pursuer’s evidence his position on these matters (which was not to accept what the records said regarding the suicide attempts) once more appeared unreliable. His explanations regarding the records on this issue did not seem plausible. His evidence was contradictory.

[211] Finally on the issue of general reliability there was the evidence of alleged sex abuse. With respect to this I agree with the submission made by senior counsel for the defenders that there was a radical reinterpretation of matters by the pursuer which again points to his unreliability. I also agreed with senior counsel for the defenders secondary submission on this aspect of the evidence relative to the paradox as to what the pursuer was prepared to speak about in evidence and this again was a marker of unreliability.

[212] There was I believe a further clear marker of unreliability in the pursuer’s evidence which was this: one of the major reasons put forward by senior counsel for the pursuer as to why I should accept the evidence of the pursuer was that the memories of the bad stuff came flooding back to him when he was in Epsom and that there was no other explanation for his breakdown which followed on from his period in Epsom.

[213] I believe it is worth examining this contention in a little detail.

[214] First I would observe that it is very striking that there is a complete lack of reference to abuse at Quarriers when the pursuer is admitted to the hospital in Penrith (following what he says was the flooding back of these memories in Epsom). If the cause of his breakdown was the flooding back of the memories of the bad stuff one would have expected that there would have been reference in the medical records at that time of this. There is none (see: No.7/1 of Process at pp.113–119).

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[215] Beyond the above the notes give a number of other possible reasons for his breakdown: • • • • • • • • • • •

“depressed for as long as can remember” “feels low all the time” “can’t hold down a job” “can’t cope with people” “argues all the time with wife” “wife will be cross with him for giving up job” “says they are £40,000 in debt” “also in trouble for harassing phone calls” “over eats for comfort” “he can’t sleep” “no hope for the future”

[216] This catalogue of stressors when taken together I conclude provide an obvious possible explanation for why the pursuer, a man with a pre-existing history of mental health difficulties, had a breakdown at that time. Thus there is a clear alternative explanation why the pursuer had a breakdown at this time and thus I reject senior counsel for the pursuer’s submission in relation to this.

[217] The pursuer’s position in evidence was, as I understood it, that he had been abused at Quarriers and the medical staff were advised of this.

However, there is no reference to this, so far as I can identify in the hospital records at Penrith. The only reference to Quarriers is this: “Spent most of childhood in care ‘unhappy’ ” I believe that the records of his admission at Penrith strongly undermine the reliability of the pursuer’s evidence that there was a flooding back of memories at Epsom.

[218] In summary I broadly agree with the submissions of senior counsel for the defenders regarding the pursuer’s reliability based on the Penrith records.

[219] Beyond the above there is the issue of the pursuer’s borderline personality disorder, it was agreed by the experts, that this would make the pursuer prone to inconsistency and this was shown clearly in the sections of the evidence relied on by senior counsel for the defenders and particularly with reference to whether his father had hit him.

[220] There is then the issue of the tainting of the pursuer’s evidence by what he had been told at one stage by his psychiatrist or psychologist about the mechanism as to how his memories had been suppressed. It is, I believe, not easy to be clear as to the extent to which the pursuer’s position has been tainted by this information. However, I am persuaded it is another factor which tends towards showing that the pursuer is unreliable.

[221] In summary I conclude: that for the foregoing reasons the pursuer is an unreliable witness. His evidence was littered with unreliable evidence. I believe Mr Moynihan was correct when he said this: “The pursuer is so unreliable a witness that no positive conclusion can be reached in his favour.”

For the foregoing reasons I conclude: • that the pursuer is an unreliable witness • that the basis upon which Professor Freeman arrived at his diagnosis was that he had been given a reliable account • that given that the pursuer is an unreliable witness the underpinning of Professor Freeman’s diagnosis collapses and there is no factual foundation to Professor Freeman’s opinion

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• that within the pursuer’s evidence there are examples of forgotten remembering of elements of the bad stuff or put another way there was evidence of the pursuer remembering elements of the bad stuff pre–2003.

[222] It follows from the above, I am persuaded that I cannot conclude the pursuer suffered from dissociative amnesia until 2003.

[223] I conclude that the proceedings were not delayed until December 2004 because the pursuer suffered from dissociative amnesia.

[224] There was considerable discussion in the submissions of senior counsel for the pursuer, as to which expert I should prefer. I do not believe that I am required to opine on that matter. I believe for the purpose of deciding this second issue I was able to do so on the basis of the measure of the agreement between the experts to which I have earlier referred. I was able to deal with the issue on the basis of looking at the factual evidence from which Professor Freeman’s opinion was based without entering into the wider reaches of the academic debate about the theory of repression of memory and dissociative amnesia about which there was a dispute between Professor Freeman and Dr Boakes.

[225] There was one final issue raised which arose from the objection made by senior counsel for the defenders to the relevancy and competency of the evidence of Mr J. For the reasons advanced by senior counsel for the defenders I do not find it of any relevance with respect to the matters before me.

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[226] For the foregoing reasons I am not prepared to exercise the discretion in terms of s.19A in favour of the pursuer and accordingly refuse to allow the pursuer to bring the present action. I have not been addressed on the issue of expenses and I reserve all questions of expenses.

D

For the pursuer: I Mitchell QC, Jamieson, instructed by Kennedys Scotland, Solicitors, Edinburgh.

For the defenders: Moynihan QC, Rolf, Solicitor advocate, instructed by Simpson & Marwick, Solicitors, Edinburgh.

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A COURT OF SESSION

25 June 2015

Outer House Lady Stacey B

KIRSTEEN STEWART

Petitioner

Judicial review—Nursing and Midwifery Council—Midwife suspended from duty—Delay by investigating committee—Recommendation that case be referred to Conduct and Competence Committee—Whether decision should be reduced

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The petitioner sought to reduce a decision of an investigating committee of the Nursing and Midwifery Council, which was to the refer the petitioner’s case to the respondents’ Conduct and Competence Committee in respect of certain allegations made about her fitness to practise. She also sought to interdict the respondents from taking any steps to convene a conduct hearing pursuant to that decision.

When a complaint is made in relation to a midwife the complaint is referred to an investigating committee, which has the power to investigate allegations and if appropriate, refer them to the Conduct and Competence Committee.

There is power to suspend the midwife while investigations are carried out, but once a suspension has lasted for 18 months, it is necessary to seek a continuation, if required, from the court. The petitioner was suspended in March 2010 and several extensions were sought. The petitioner opposed an extension which was sought on 15 November 2011 and tendered a report to the court by an expert in which it was stated that the expert had found no credible evidence against her. An extension was granted until 9 February 2012 when a further extension was sought with an explanation of the delay. The respondents explained that they had delayed investigation during the currency of a police enquiry. On a further application for an extension of the suspension in October 2012 the Lord Ordinary was advised that the Crown had decided not to prosecute on the information available to them. The papers from the Crown were made available to the respondents and they decided that they required a report from an independent consultant obstetrician and from a medical statistician. The respondents continued to request extensions and information was obtained that both doctors required further information. The position of the petitioner was that the respondents did not supply the further information sought and that, by failing to do so, they had failed in their duty to take all reasonable, practical steps to get as much information as possible.

Counsel for the petitioner argued that the decision to send the case to the Conduct and Competence Committee should be reduced because of three failings: (1) failure to adhere to statutory requirements; (2) unreasonableness; and (3) delay in breach of the petitioner’s art.6 rights.

Counsel for the respondents argued that, although the chronology of the case showed there had been delay, there was a great deal of material to be considered. The witnesses all gave evidence that the circumstances gave rise to suspicion. The submission that the respondents had failed to fulfil their statutory duty was based on a misconception. While there had been delay it did not justify reduction.

Held that the delay from 2010 until 2015 was not satisfactory but it was not such as to require reduction of the decision and it could not be said at the current stage that the petitioner was prejudiced and could not have a fair trial (para.26) and petition dismissed.

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Cases referred to:

A

Okeke v Nursing and Midwifery Council [2013] EWHC 714 (Admin) R on behalf of Martin Richard v General Teaching Council for England [2008] EWHC 133 (Admin) Siroky v Slovakia, European Court of Human Rights, 18 January 2006.

The full circumstances of the case and the arguments of counsel are to be found in the following opinion of the Lord Ordinary which was issued on 25 June 2015.

LADY STACEY [1] The petitioner is Mrs Kirsteen Stewart who is a midwife. She seeks to reduce a decision of the Investigating Committee of the Nursing and Midwifery Council (the respondents) made 24 July 2014 and intimated to her by letter dated 25 July 2014. The decision is to refer the petitioner to the respondents’ Conduct and Competence Committee in respect of certain allegations made about her fitness to practise. She also seeks to interdict the respondents from taking any steps to convene a conduct hearing pursuant to that decision. A motion for interdict ad interim was made on 3 December 2014 and dropped in light of an undertaking given by counsel for the respondents that they would not seek to fix a hearing during the subsistence of this judicial review.

[2] The respondents are responsible for regulating and supervising the fitness to practise of nurses and midwives registered with them under the Nursing and Midwifery Order 2001 (the order). The Nursing and Midwifery Council (Fitness to Practice) Rules 2004 was made under the order hereinafter referred to as ‘the Rules’. The respondents are a body corporate. Provision is made for the registration of nurses and midwives. Its principal function is to establish from time to time the standards of education, training, conduct and performance for nurses and midwifes and to ensure the maintenance of those standards. The main objective of the respondents in exercising its functions is to safeguard the health or wellbeing of persons using or needing the services of its registrants.

[3] Part V of the order concerns fitness to practise. Article 21(1)(b) is in the following terms: “(The Council shall) establish and keep under review effective arrangements to protect the public from persons whose fitness to practise is impaired.” Art.22 provides that if an allegation of impaired fitness to practise is made, the council of the respondents will refer the allegation to an investigating committee. Art.26 provides that the investigating committee shall investigate any allegation referred to it. Further it shall notify the person complained of and invite a response; may notify the person making the allegations of the representations made by the registrant and invite him to deal with points raised; shall take such steps as are reasonably practicable to obtain as much information as possible; shall consider whether there is a case to answer; if it concludes that in its opinion there is a case to answer, it shall refer the case to the Conduct and Competence Committee.

[4] The Conduct and Competence Committee has power under the order to hear allegations. It may decide that an allegation is or is not well founded.

Its powers if it finds an allegation to be well founded include making an order directing the registrar to strike off the registrant.

[5] Thus the investigating committee has a duty to investigate allegations; in order to do so it is required to notify the registrant and invite representations; it may seek the originator’s comments on those representations. It is required to take such steps as are reasonably practicable to obtain as much information

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as possible about the case. The issue raised by the petitioner concerns the duty last mentioned, and it concerns delay.

[6] Allegations were made against the [petitioner] and following an investigation by an investigation committee the committee decided that there was a case to answer and referred the matter to the Conduct and Competence Committee. That is the decision of 24 July 2014 which the petitioner seeks to reduce.

[7] The respondents have power to suspend a registrant while investigations are carried out. In terms of art.31 the Practice Committee may order suspension of a registrant against whom allegations have been made. Once that suspension has lasted for 18 months it is necessary to seek a continuation, if required, from the court.

[8] The matter has a considerable history. In March 2010 the petitioner was working as a midwife when concerns were raised about a case in which she was involved. The employers suspended the petitioner from their employment on 17 March 2010. On 15 April 2010 the petitioner’s employers, NHS Grampian, referred the matter to the respondents. The respondents, acting under the order and rules, suspended the petitioner from registration ad interim. The respondents sought several extensions. The petitioner opposed an extension sought on 15 November 2011. She tendered a report to the court

by Professor Kevin Dalton, in which he stated that he found no credible evidence against her. An extension was granted until 9 February 2012 when a further extension was sought. In explanation of the delay, the respondents explained that they had delayed investigation during the currency of a police enquiry. On a further application for an extension of the suspension in October 2012, Lord Doherty was advised that the Crown had decided not to prosecute on the information available to it. His Lordship indicated that the respondents should give priority to this case and that any further application by them for an extension would require demonstration that they had made every effort to expedite the conclusion of the investigation.

[9] In October 2012 the Crown made available to the respondents all witness statements taken during the Crown investigation. These included one from Dr Mathers, an independent consultant obstetrician. The respondents decided that they required a report from him, and as recommend by Dr Mathers a report from a medical statistician. Accordingly the respondents instructed Professor Campbell.

[10] The respondents continued to seek extensions of the suspension from the court. Due to the length of time which the investigation appeared to take, the court sought information from the respondents. It transpired that both Dr Mathers and Professor Campbell gave opinions which were to the effect that they needed more information. Dr Mathers was of the view that the circumstances were suspicious, but he needed more information.

[11] Put shortly the petitioner’s position is that the respondents did not supply the further information sought and that by failing to do so, they have failed in their duty to take all reasonably practicable steps to get as much information as possible. She argues that the case needs statistical evidence, and that by changing its position on that, the respondents have acted unreasonably.

[12] The case called before Lady Wise on 9 December 2013. The court noted that the petitioner had not worked since April 2010 and had been suspended since 22 June 2010. (The dates do not accord with those in the petition but nothing turns on that.) The court had granted six extensions of the suspension. Lady Wise found that the respondents had taken a very relaxed

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approach to the investigation. They had been represented before her on 6 December 2013 but had brought no material detailing the specific allegations made and nature of the evidence available; the court granted a short continuation. At the hearing on 9 December 2013 specific allegations were available and the court was told that there was no eyewitness evidence, no toxicological evidence and no statistical evidence. The respondents’ case, if taken before the Conduct and Competence Committee, would rest on expert opinion applied to the known facts of the labour of up to 20 separate patients.

The respondents advised the court that they had had a statement from Dr Mathers since at least October 2012. He had given a statement to police some time before that. Despite the earlier delays in progressing with the case, the respondents had not instructed a formal expert opinion from Dr Mathers until August 2013. That report was not available but could be drafted within days. Lady Wise, reluctantly, decided that given the gravity of the allegations she was prepared to allow the respondents a short time to decide whether or not they had a sufficient basis to pursue a case against the petitioner.

[13] The case called again in front of Lady Wise on 18 December 2013.

The respondents stated that a report and email correspondence from Dr Mathers had been made available but would not be put before an investigating committee which had been fixed to meet on 15 January 2014. The reason for that was explained to the court as being that the respondents had failed to provide the doctor with statistical analysis that he considered important in reaching a concluded view in the case.

[14] The position was that the investigations which the respondents sought to make, included obtaining statements from a specialist obstetrician and from a medical statistician. Put broadly, it was suspected there were several cases where mothers in labour were given a particular drug, syntocinon, by the petitioner, when it was not needed. That caused significant bradycardia in the foetus.

[15] The investigating committee sent a report to the Conduct and Competence Committee but the procedure went awry. The committee had purported to decide the case in ignorance of the fact that the petitioner had lodged a response. Once they realised there was a response they decided to look at it again; the committee was incomplete, one of their members having left. It was recognised that the decision could not stand in those circumstances.

[16] The respondents made a fresh decision to send the matter to the Conduct and Competence Committee. The respondents’ position was that [they have] decided to do without a report from an obstetrician or a medical statistician. [They have] decided to present [their] case against the petitioner on the material [they] had.

[17] On 7 July 2014 the court refused the petition for continuation of the suspension. The petitioner I am advised, does not work as a midwife at present and has not done so since her suspension but I also note that she is no longer suspended by the respondents.

[18] Counsel for the petitioner argued that the decision should be reduced because of three failings: 1.

2.

3.

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failure to adhere to statutory requirements; unreasonableness; delay in breach of the petitioner’s art.6 rights.

[19] The petitioner has always accepted that the allegations made against her are very serious. Counsel argued on her behalf that in terms of r.26 the

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respondents are obliged to take such steps as reasonably practicable to get as much information about the case as possible. He argued that the dictionary definition of “reasonably practicable” meant “in a reasonable manner, sufficiently fully”. If it was necessary in this case to have statistical information then the respondents had to produce that or to explain why it was not practicable to have it. The allegations in this case amounted to a suggestion that much the same thing had happened to about a total of 20 patients and counsel argued that such a case was one which cried out for evidence from a medical statistician. The respondents did not proceed with the report instructed from Professor Campbell. Counsel referred to the case of R on behalf of Martin Richard v General Teaching Council for England and in particular to para.24. Munby J was there dealing with submission (in a case in which a school teacher had been suspended by a regulatory body) to the effect that the rules do not impose obligations on the regulatory body. His Lordship in para.25 noted that the rules are published by a public body as a definitive statement of how it operates the disciplinary powers vested in it by statute. He found that in those circumstances a breach of the rules could in an otherwise appropriate case form the basis of an application for judicial review. Counsel argued that in the current case the respondents were a creature of statute and that the order and the rules made thereunder set out what the public and any registrant could expect the respondents to do. That being so, he argued that a failure to follow up statistical evidence was a breach of the respondents’ duty to investigate allegations fully.

[20] Counsel criticised what the respondents had done.They had considered the draft report of Dr Mathers but it suffered from a similar difficulty to that affecting Professor Campbell in that statistics had not been available to Dr Mathers. Counsel emphasised that the petitioner wished to have the matter fully investigated and that she had a right to expect the respondents to do so.

In further reference to the Martin Richard case counsel argued that delay was prejudicial to the petitioner. He explained that the petitioner’s mental health is suffering. He noted that in the Martin Richard case that the judge had found that he could not at that time assess whether a fair trial was possible. As I understood him, counsel accepted the same position in the current case.

Counsel also referred to the case of Siroky v Slovakia in the European Court of Human Rights. He relied on paras 18–20 for the proposition that the reasonableness of the length of proceedings must be assessed in light of all of the circumstances of the case including the following criteria: the complexity of the case; the conduct of the applicant and the relevant authorities; and what was at stake for the applicant in the dispute. He argued that the delay in this case was prejudicial but he did not seek to have the case dismissed.

[21] Mr Stuart, counsel for the respondents, submitted that I should sustain the second and third pleas-in-law and dismiss the petition. Counsel accepted that the chronology of the case showed that there had been delay. He explained that time had been taken up getting medical records and waiting for the police investigation; although he accepted that the respondents should not have waited for the police investigation. The police papers included 486 police statements. There was therefore a great deal of material to be considered.

[22] Counsel argued that investigating committee had ample material to make the decision of 24 July 2014. They had reports from Geraldine Butcher, from Tara Fairley, and from Tracey Humphrey, all witnesses professionally qualified to give opinions, all of whom were concerned that the circumstance seemed to be very suspicious. Dr Mathers’ police statement indicated that he was of the same view; he thought the circumstances were suspicious. These

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views were not based on statistical evidence but were based on a professional view that sudden bradycardia in a foetus is unusual and may be brought about by intervention. The fact that the petitioner was the midwife concerned with the labour in so many cases was a matter that gave rise to suspicion.

[23] Counsel understood that the petitioner submitted that the respondents failed to discharge their statutory duty to get as much information as is reasonably practicable. He argued that this submission was based on a misconception. It was for the committee to decide what information it required and to make a judgment as to which witnesses were necessary. If in the course of investigation the respondents obtained information from persons who may have been witnesses, but then decided to take the line of enquiry no further, then that did not mean that they had failed in their duty to obtain as much information as was reasonably practicable. In any event, counsel argued, the petitioner was not prejudiced because she had the information from Dr Mathers and Professor Campbell and she could pursue the lines of enquiry herself if so advised. She could also argue that the information presented at the conduct hearing is incomplete. At that hearing the burden is on the respondents.

[24] With regard to delay, counsel accepted that the start date was 10 April 2010. The case was not dependant on eyewitness evidence. Rather it was dependent on a pattern which could be seen without complicated statistical analysis, and without eyewitnesses whose recollection may be diminished by the passage of time. While counsel accepted that there had been delay, he argued that that should not lead to reduction. He referred to the case of Okeke v Nursing and Midwifery Counsel in which it was stated at para.38 that any remedy depends on the nature of the breach. In the present case if there has been any disadvantage to the petitioner caused by delay then that can be taken into account but it does not justify reduction.

[25] Counsel for the respondents argued that the petition should be dismissed as having no merit. His fall-back position were I not with him was that I should acknowledge that there has been a breach caused by delay but that the outcome of that should be that I recommend or order that be heard as soon as possible.

[26] My decision in this case is that the petition must be dismissed. The delay from 2010 until 2015 is not satisfactory but I am not persuaded at this stage that it is such as to require reduction of the decision to send the case to the Conduct and Compliance Committee. I cannot say at this stage that the petitioner is prejudiced and cannot have a fair trial. In any event the petitioner does not seek that; rather she seeks to have the matter returned to the committee in order that it may obtain more information. Counsel for the respondents are correct to say that it is for the respondents to decide what information it shall consider. I appreciate that the order and rules provides that the respondents shall obtain as much information as is reasonably practicable but it will always be an exercise of professional judgment to decide if a particular line should be pursued or not. So long as the committee has made a decision which is not irrational, there are no grounds of reduction.

Thus in the present case the investigating committee has information from witnesses which enables it to make a decision that there is a case to answer which cannot be described as irrational. It is a decision the investigating committee was entitled to make. I make no judgment about the good sense or otherwise of obtaining statistical reports and I make no judgment about any submission that may be made on behalf of the petitioner to the effect that without such statistical reports no inference against her should be drawn.

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There are however no grounds put before me to show the decision to be irrational.

[27] Counsel for the respondents argued that the petitioner had delayed in seeking judicial review of the decision complained of. She received intimation of the decision by letter of 25 July 2014. She was advised by letter of 18 September 2014 that a ten-day hearing was set down to commence on 8 December 2014. She sought first orders in this petition on 25 November 2014. Thus the hearing could not go ahead. Counsel argued that the petitioner had thus been responsible for some of the delay in resolution of this case.

While it is correct to say that the petitioner’s actions have caused some delay, the majority of the time has been taken by the respondents. Counsel for the respondents did not submit, quite properly, that any delay caused by the petitioner should lead to this petition being dismissed.

[28] I share the view expressed by other judges that the delays in this case are unfortunate and I urge the respondents to give it priority.

For the petitioner: Forsyth, instructed by Campbell Smith, Solicitors, Edinburgh.

For the respondent: Stuart, instructed by NHS (Scotland) Central Legal Office, Edinburgh.

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A SHERIFF COURT

November 2015

Edinburgh Sheriff N A Ross BLAIR CARNAGIE NIMMO as liquidator of Glasgow & Weir Blacksmiths Ltd

Noter

B

against DAVID GLASGOW

Defender

Companies—Liquidation—Liquidator claiming contribution from director equal to total of assets improperly diverted or transferred— Whether breach of fiduciary duty necessary—Whether director honestly believed acts in question were in interests of company— Whether director should be relieved of liability—Insolvency Act 1986 (c.45), s.212—Companies Act 2006 (c.46), s.1157 Section 212(1) of the Insolvency Act 1986 provides a remedy where: “. . . an officer of the company . . . has misapplied or retained or become, accountable for, any money or other property of the company, or been guilty of any misfeasance or breach of any fiduciary or other duty in relation to the company”.

Section 212(3) of the 1986 Act allows the court to: “. . . examine into the conduct of the person falling within subsection (1) and compel him— (a) to repay, restore or account for the money or property or any part of it, with interest at such rate as the court thinks just, or (b) to contribute such sum to the company’s assets by way of compensation in respect of the misfeasance or breach of fiduciary or other duty as the court thinks just”.

Section 1157 of the Companies Act 2006 provides, inter alia: “(1) If in proceedings for negligence, default, breach of any duty or breach of trust against— (a) an officer of a company . . . it appears to the court hearing the case that the officer or person is, or may be liable but that he acted honestly and reasonably, and that having regard to all the circumstances of the case (including those connected with his appointment) he ought fairly to be excused, the court may relieve him, either wholly or in part, from his liability on such terms as it thinks fit. . . .”

The noter raised an action against the sole director of a company, Glasgow & Weir Blacksmiths Ltd (the company), who had presented a petition for winding up the company. The defender was also a director of another company called Glasgow & Weir Windows Ltd. The noter sought payment of certain sums said to be due by the defender to the company.

The statement of affairs of the company disclosed liabilities, the majority of which were due to HMRC. Many of the contracts entered into by the defender were on an informal basis, including a contract where work was carried out at a Travelodge site. The company subcontracted much of the work to Windows

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without any formal contract being entered into. Payment certificates were issued to “Glasgow & Weir” and payment was diverted to Windows’ bank account although the payments were properly payable to the company.

Payment was also diverted of other contracts’ proceeds to Windows at a time when the company was unable to pay its debts as they fell due. At all material times the defender personally directed the activities of both the company and Windows. He caused both companies to be run as if their interests and creditors were identical. Each provided labour and materials to the other, from time to time, on an informal basis but no formal contractual relations between the two companies were created nor was there adequate formalisation of any contractual relationship between them. In so doing the defender failed adequately to safeguard the interests of the creditors of either company.

The noter relied on s.212 of the Insolvency Act 1986, claiming that the defender had misapplied or retained or had become accountable for money or other property of the company.

The solicitor for the noter submitted that it was the duty of a director to act in accordance with the company’s constitution and only exercise the powers for the purposes for which they were confirmed and act in good faith.

Importantly, in a situation where the company was of doubtful solvency the company’s own interests were not the only criterion, the interests of the creditors became equally or more important. Thus when considering the nature of any transaction by an insolvent company, a director’s decisions are measured by whether he acted in good faith and in the interests of the company and of the creditors as a whole. As a result of the fiduciary nature of the director’s position a director became obliged to account for his actions and to demonstrate that he had acted properly. It was no defence for a director to say that he had relied on accountants or third parties unless he had made enquiries and satisfied himself that they were in fact doing what was required of them.

Counsel for the defender accepted that the onus shifted to the defender to explain why funds ostensibly due to the company were paid to Windows but submitted that the onus had been discharged. He submitted that the trading of the defender had been with a view to keeping the company afloat and thereby in a position in due course to meet its debts. There was no evidence of bad intent and no evidence of dishonesty nor a breach of fiduciary duty.

Section 212 was a procedural provision only and therefore required an underlying breach of law. It was framed in terms of breach of fiduciary duty which required underlying dishonesty which had not been demonstrated.

If there were some liability, then the court should grant relief under s.1157 of the Companies Act 2006. The defender’s clear motivation was to keep the company running and it was reasonable to attempt to trade out of insolvency unless the position was plainly hopeless. The defender had invested his own money for no personal benefit, and he had taken no salary for 15 months prior to insolvency.

Held (1) that s.212 did not require any breach of fiduciary duty in order to operate and although it might be correct to describe it as a procedural provision it was still available for a wide variety of wrongful acts by a director including breach of trust, misfeasance, negligence or other wrongful acts or omissions (para.91); (2) that it was clear that funds due to the company had been diverted and it was appropriate that the defender be compelled to restore to the company the sums which were misapplied totalling £177,259.17 (para.99); and (3) that the s.1157 test was not satisfied (para.109); and order granted.

Cases referred to:

G

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Blin v Johnstone, 1988 S.C. 63; 1988 S.L.T. 335 Derek Randall Enterprises Ltd, re [1990] B.C.C. 749 Gwyer v London Wharf (Warehouses) Ltd [2000] EWHC 48 (Ch.)

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HLC Environmental Projects Ltd, re [2013] EWHC 2876 (Ch.) Micra Contracts Ltd (in Liquidation), re [2015] All E.R. (D.) 24.

A

The full circumstances of the case and the arguments of counsel are to be found in the following judgement of the sheriff which was issued on November 2015.

SHERIFF ROSS [1] This action is derivative from the liquidation process relating to Glasgow & Weir Blacksmiths Ltd (the company), in which the noter is the liquidator of the company and the defender is the sole director. He and his former wife are the only shareholders. The action is brought under s.212 and related sections of the Insolvency Act 1986.The noter craves an examination of the respondent’s conduct in relation to certain of the company assets, together with payment of certain sums which he claims were improperly diverted or transferred, and which ought to be available for settling the claims of the company’s creditors.

The examination took the form of the present proof, and evidence was led over three days.

B

C

The liquidation of the company

[2] The details of the company liquidation are not in dispute. In June 2012 the defender, as director, presented a petition to wind up the company. The grounds of winding up were that the company could not pay its debts as they fell due. The noter was appointed provisional liquidator by interlocutor dated 29 June 2012. He was thereafter appointed interim liquidator on 30 July 2012, and liquidator on 4 September 2012. The director was the sole director, and he and his wife, Susan Glasgow, were the only shareholders. The director’s statement of affairs dated 29 June 2012 discloses a deficit of £156,100, a director’s loan of £5,000 and total trade creditors of £50,000. A further statement of affairs was prepared to 2 July 2012, and disclosed a deficit of £147,283, director’s loan of £11,342 and trade creditors of £44,428.

Following investigation, the noter submitted the present note seeking sanction by the court to raise these proceedings against the defender. Sanction was granted on 18 November 2014.

[3] The noter now seeks recovery from the defender of certain sums which, in short, should have been paid to the company under certain trade contracts, but were instead paid to an associated company, namely Glasgow and Weir Windows Ltd (Windows). The director is also the sole director of Windows, and he and Susan Glasgow are the only shareholders.

D

E

The statutory remedy

[4] The noter relies on s.212 of the Insolvency Act 1986. Section 212(1) applies a remedy where an officer of the company has “misapplied or retained, or become accountable for, any money or other property of the company, or been guilty of any misfeasance or breach of any fiduciary or other duty in relation to the company”. Section 212(3) allows the court, in these circumstances, to: [the sheriff quoted the section as set out above and continued:] [5] This section does not create any new remedy, but is “procedural” in nature (Blin v Johnstone, under reference to the predecessor statute) because it “only provides a method of litigating particular claims; and in providing a method, it is not exclusive” (p.67). It would be open to the company, for example, to raise an action against the recipients of sums wrongfully transferred

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or paid, under the gratuitous alienation or unfair preference principles. Section 212 provides the noter with an alternative method of achieving the same result, in exercise of his duty to recover and distribute the company assets to the creditors.

The evidence

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[6] Mark Davidson is a colleague of the noter, who met with the defender and various advisers in June 2012 to discuss the company’s financial position. In meeting on 13 June 2012 it was noted that the company had approximate debts of £68,000 to HMRC and £50,000 to various trade creditors, whereas it had cash reserves of £20,000 and £30,000 in trade debtors (minutes at No.11/4/4 of Process). This position arose primarily because the company had not recovered from losses made on a contract some years earlier. Mr Morren, the company accountant, had been present, and noted that Windows was likely to be a creditor of the company. All were agreed that the company was insolvent at that point. Various options and consequences were discussed. A further meeting took place on 14 June 2012 (No.11/4/5 of Process), in similar vein. HMRC were pressuring for payment. There was no list of assets yet prepared. The company’s board meeting minutes of 28 June 2012 recorded the insolvency of the company (No.11/4/6 of Process), and resolved to present a petition for winding up.

[7] A statement of affairs (No.11/4/7 of Process) was prepared to that date.

It noted total assets of £19,000 and total debts of £175,000, markedly worse than the figures discussed on 13 June 2012. Total debts to HMRC alone were £120,000. This was updated on 2 July (No.11/4/8 of Process). The accompanying analysis of creditors (No.11/4/9 of Process) shows total trade creditors of £44,428. It does not include Windows as a creditor—Mark Davidson commented that it should have done so.

[8] The defender filled in a “proof of debt” form (r.6.96) (No.11/5/3 of Process) dated October 2013 claiming, for the first time, to be creditor of the company. He designed the claim as, “David Glasgow trading as Glasgow & Weir Windows Ltd”, and claimed £50,063.96. This claim, whether personal or Windows’, had not previously been made, and came 15 months after the liquidation date. The “pre-liquidation” claim totalled £84,168.61, and the “during liquidation—trade creditors settled” claim totalled £33,226.32. Mr Davidson could not tell if these debts were genuine, but it was a matter of note that these were appearing for the first time many months after liquidation.

[9] Torquil Murray discussed investigation of the company affairs. He is a self-employed chartered surveyor who specialises in construction disputes, and in particular the recovery of ledger debts for construction companies in liquidation. He was engaged by the noter’s firm to carry out such work in respect of the company, and reported to Jenny Veitch (No.11/4/11c of Process).

[10] His evidence forms the basis of the precise sums claimed. He met the defender at the company offices on 4 July 2012. He received some information, and discussed the debtors. He was provided with an aged debtors analysis (No.11/4/12a of Process) and a customer activity sheet (No.11/4/13 of Process). The latter showed, amongst others, customer’s payments by George Sharkey & Sons Ltd (Sharkey) and TKS Plumbing Services (TKS). The Sharkey entry showed a netting off of £49,000, which led to further enquiry.

The TKS and HR entries showed reference to “work done by Windows”. Mr Murray made further enquiries.

[11] He requested payment from TKS’s principal, Mr Knight, who told him that he had been asked by an employee of the company to make payment

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to Windows, not the company, and had done so (No.11/4/23a of Process). (I record here that Mr Knight mentioned that he had been told that the defender was trying to hide assets from his wife, because there was an ongoing divorce.

This was agreed by parties as unfounded in evidence and indeed, illogical, because the defender’s wife was a shareholder of both the company and of Windows. I mention this only to dismiss it as a factor.) The defender said that Windows had done the work, but the company had issued the invoice. Mr Murray concluded that funds had been diverted away from the company, to Windows. This is the sum craved at 2(e), of £6,588.

[12] He requested payment from HR for “work done by Windows”. They paid this invoice. The invoices were for steelwork, not windows products.

[13] Mr Murray reported in writing to Ms Veitch, saying: “It seems to be the case that the (company] and [Windows] were run as effectively the same. There appear to be two large contracts that I have valuations for but do not appear to be recognised in the (company) accounts.

The valuations appear to indicate that both blacksmith work and windows work were undertaken under the contract. . . .”

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He noted the lack of documentation, and that everything seemed to be administered through Windows (No.11/4/16 of Process). The two large contracts referred to were with Sharkey, being the “Motel One” contract and the “Travelodge” contract. He did not know which company was the party to these contracts with Sharkey. He attempted to follow up a spreadsheet of which company was owed money by Sharkey (No.11/4/22 of Process). Sharkey was not on the existing debtors’ list. Once provided with information, Mr Murray could not reconcile the sums in the company bank account with the sums due.

[14] Sharkey later confirmed that the two contracts were both with the company (see two orders No.11/4/1a, b, c of Process, for £171,000 and £26,887, both for Travelodge, and No.11/1/10 of Process, for £141,709, for Motel One). The defender later confirmed to him that the company sub-contracted some of the work to Windows. The only written documentation provided was: (i) a purchase order by the company to Windows (No.11/4/2 of Process) for the whole value of the Motel One contract (£141,709); and (ii) a similar purchase order (No.11/4/3 of Process) for part of the value of the Travelodge contract (£29,775) [15] Notwithstanding that the work for Motel One was sub-contracted by the company to Windows, Mr Murray noted that the company provided labour (see timesheets Nos.11/4/29–34 of Process) and materials (shown in the company bank accounts). Mr Murray analysed the timesheets and employee lists, and produced an abstraction of what labour was provided by the company (see No.11/5/14 of Process). In total the company supplied 412 employee hours for the Motel One contract, and 283.5 hours for the Travelodge contract. This showed company resources being used for the Windows sub-contracts. Although not directly relevant, he noted the confusing use of company timesheets thereafter for Windows employees (Nos.11/5/15–20 of Process).

[16] Sharkey determined the Motel One contract by letter dated 14 June 2012 to the company, and made a final payment of £52,539.62 (Nos.11/1/11 and 12 of Process). Mr Murray could not find this payment in the company bank account.

[17] On the same day, Sharkey appointed Windows as replacement contractors on the same job (No.11/5/5 of Process), at a contract price of

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£69,562.80. Mr Murray could not account for this switch between the two companies. He had no entitlement to see theWindows company documentation.

[18] He carried out an analysis of these contracts. The analysis of the Travelodge contract (see defender’s inventory 12/4, App.D) shows the sums payable to the company of £59,264.96 (the sum craved at 2a) and £58,866.59 (the sum craved at 2b). These sums are shown as having been paid by Sharkey on 11 April 2012 and 18 April 2012 respectively, under the company contract, but having been “banked in (Windows)”.

[19] In cross-examination he did accept that there was a history of payment of sums due to the company into the Windows bank account, under this contract. This appeared to be a normal application of funds (in the sense that it was in fact how these companies behaved), but it was not correct. They should have gone to the company, not Windows. He resisted the suggestion that it was easier for this to happen, in circumstances where Windows were actually doing the work and paying the costs, because of the formal contractual relationship. What ought to have happened was payment by Sharkey to the company, and thereafter an application by Windows to the company for payment. He had seen informal payment arrangements before, in small, casually run groups, but this had not protected the group companies from having to make payment upon liquidation.

[20] He was referred to various entries in App.D (No.12/4 of Process), but did not claim expertise in accountancy. He accepted Windows may have made payment to company employees from time to time, but this appeared only to amount to about £9,500, and did not resolve the underlying contractual point.

He could not comment as to the actual arrangements amongst the various companies. He could not say what sums had been spent by Windows on these projects. He could not tell from the documentation which company had made payments for labour or services in carrying out these Sharkey contracts. He noted that named employees might work for both companies at different times. The documents showed only limited payment by Windows for labour.

[21] Gavin Park gave evidence. He is a senior manager colleague of the noter, working in restructuring. He was one of the case managers for the present liquidation, with Jenny Veitch. He spoke to the meetings with the defender, and noted the statement of affairs prepared by the defender, as director (No.11/4/14 of Process). He confirmed that this is one of the most important documents in a liquidation, as it sets out the view of those who controlled the business, and is therefore the starting-point for the liquidator.

This statement of affairs set out £29,766 of assets and £171,892 of liabilities.

Debtors amounted to £18,745.

[22] He noted the proof of debt (No.11/5/3 of Process) dated 17 October 2013, an (English) form claiming a debt of £50,063.96 by the defender “trading as (Windows)”. This claim had not previously featured in the statement of affairs, some 15 months earlier. There was also another claim for £84,168.61 and £33,226.32 by the defender (No.11/5/4 of Process). He was surprised to see this, because it was a large claim which had not previously been submitted by the same director. The sums were said to comprise £84,168 for “personal monies paid” and £33,226 for “trade creditors settled”, but contrasted with a director’s loan figure in the statement of affairs of only £14,000. In all, these claims amounted to an extra £134,000 or thereby, which did not feature in the original statement of affairs.

[23] He also commented on the company accounts to 31 March 2011 (11/4/27), and noted the increasing debt of the company. By 13 June 2012 HMRC had demanded payment of about £81,000. He could not say over

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what period this had been accrued, but he would judge a number of months, as the HMRC would issue a demand only when the sum was significantly overdue. He would assess that the sum due to HMRC, taken together with the new claims by the defender of around £165,000, would mean “without doubt” that in April and May 2012, and thereafter, the company was unable to pay its debts as they fell due. Within that period, any payment to an associated company such as Windows, in the context of the customer payments, would amount to a preference.

[24] Again, the tenor of cross-examination was that the payment of sums due to Windows would be easiest paid straight to Windows, and might be in the normal course of trade. Mr Park could not comment. He accepted that payments might have to be made to Windows to allow them to keep trading, but that did not stop such payments being a preference. (I record that ultimately the “normal course of trade” argument was not insisted in in submission.)

[25] Jennifer Veitch was the other case manager. She spoke to similar matters. She confirmed that in June 2012 HMRC were pressuring, and were definitely going to appoint a liquidator if the company had not already done so. No repayment plan was possible. She spoke to the informal statements of affairs (Nos.11/4/7 and 8 of Process), prepared by the defender. The liquidator was appointed on Friday, 29 June 2012. A notarised statement of affairs was sworn on that date (No.1/4/14 of Process) by the defender. Ms Veitch was on site by the Monday, discussing matters with the defender. She engaged Torquil Murray to realise the assets of the company. The company accountant was Mr Morren. After various investigations, Mr Murray was not getting anywhere, so a meeting was held on 1 November 2012 to discuss matters (No.11/4/24 of Process). The defender stated, to her surprise, that he had not been “hands on” with the company for around 12 months prior to liquidation. This contrasted with his apparent knowledge of the company affairs, and that it was his decision to liquidate the company. Further, he had signed a notarised statement of affairs. Following discussion, she understood that a lot of work had been carried out by the company, but payment had been made to Windows instead. The company had been removed from the Motel One contract, but the defender could not explain why it had been awarded to his other company.

[26] At that meeting she asked him about contracts. On the Travelodge contract, the defender could not say if it had been completed. The contract had valued the job at “£260k” but had been settled at “£201k”’ He could not say why. He could not say why the company received “£18k” (based on customer activity schedule) whereas there was a payment certificate to the company for “£173k”. It appeared to her that he was avoiding answering these questions. She would expect a director in his position to be “quite comfortable” in answering questions about the company’s trading.

[27] There was a failure to account for the discrepancy between a zero balance with one trade supplier, but that supplier was quite happy to pay “£7.7k” on demand to the company. In relation to sums paid to Windows, such as the TKS payments, he said that, “it alarms me that it has not gone through the accounts”. He said that Mr Morren, the company accountant, would provide documentation.

[28] There was a further meeting on 30 November 2012, because the defender had not provided documentary evidence about sums owed to the company. On that occasion, he stated that, “Windows had carried out work for (the company)”, which was different from what he had stated on 1 November (namely that Windows were directly entitled to payment). It was then apparent

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that monies should have been paid to the company, not Windows. By that stage, the large amount of the HMRC claim, the percentage of the PAYE and NIC element, and the small number of employees (13), meant it could be established that the HMRC debt had been built up over a number of years.

The balance sheet to 31 March 2011 (No.11/4/27 of Process) showed creditors of £157,687, against funds of £520. It appeared that the company was insolvent by April 2012 at least.

[29] She spoke to the proof of debt (No.11/5/4 of Process), which was quite different to claims made earlier by the defender.

[30] There was an element of personal spending by the defender on the company credit card. Their analysis was that this amounted to £13,684.18 (No.11/5/11 of Process, email of 20 March 2013).

[31] In cross-examination, Ms Veitch could not say that the company was trading while insolvent in the period leading up to liquidation, but noted that the level of outstanding debtors, mainly HMRC, was significant. She accepted that trading might be possible if there were good relationships with trade creditors and suppliers, but HMRC would not agree to such an arrangement.

The Insolvency Service had not taken steps to disqualify the defender. When it came to the defender personally meeting the payments to company creditors, she could not comment.

[32] She stated that, if trade creditors were of the order of £176,000 (being HMRC debt of more than £80,000, plus £50,000 or thereby due to Windows) then it is likely to have been insolvent during April and May 2012.

[33] David Glasgow gave evidence in response. He is 51 years old, and is the director of the company and of Windows. The company specialised in architectural metalwork, and structural metalwork. Windows started as an “offshoot” of the company, and manufactured and supplied sash and case windows and related joinery services. He and his former wife were the sole shareholders of both companies. The company had traded for 18 years, and Windows for 21 years.

[34] The companies would interact, and assist each other with work orders on large contracts, by using each other’s labour. It was advantageous, as they knew the workers. They worked under the “same umbrella”. The companies would also work together. The company might get a contract for metalwork and window work, and Windows would carry out the windows element and the company would pay them. He could not guarantee when Windows would be paid, as in the construction industry payment was made by monthly application which might not be paid in full. He refused bank borrowing. He had very good historical relations with his suppliers, who would allow lengthy credit terms.

[35] After the financial crash in 2009, work dried up. He tried to keep the companies going. At present, the industry was just picking up. The company has 12 or 13 employees. Windows has five or six employees.

[36] The Travelodge contract was for items such as window repairs, secondary glass and curtain walling. Windows carried out the work, with assistance from the company, and was sub-contracted by them. The company would manage the contract, and supply labour. The contract was between the company and Sharkey owing to the defender’s family contacts with Sharkey since the 1950s. Sharkey’s manager, Mr Scott, had faith in the company, but not in the management of Windows. He was happy, though, that the work be sub-contracted to them. The company paid suppliers initially, but later Window paid their own suppliers. Each company paid for their own labour.

Details were set out in App.D of No.12/1/4 of Process.

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[37] Sharkey payments were to “Glasgow & Weir”, and were therefore unspecific. They were passed to Windows, because Windows were carrying out the work. Had they not received this payment, they could not have paid their own suppliers. It was necessary for the purpose of keeping the job going. If the job was not carried out, Sharkey would get in another contractor, and sue for the difference in cost. There was no written contract, other than a purchase order for the full value.

[38] The Motel One contract was for installation of sash and case windows, and some other elements. The same arrangement existed—Sharkey contracted with the company, who subcontracted to Windows. One job transferred over to the other. He was “not too clear” but thought that Windows paid suppliers direct for that job. The company supplied some labour. Details were set out in App.F of No.12/1/4 of Process.

[39] The same arrangement applied. Windows was not cash-rich, so if they were not paid, they could not continue with the contract. They had no bank borrowing, so were reliant on cashflow.

[40] The Motel One contract ended, and Windows contracted directly with Sharkey, because Sharkey became disgruntled with the company’s management. Two managers failed to attend monthly site meetings, whereas Window’s manager, Mr Scullion, ran the job single-handed. Sharkeys were impressed by his management, and terminated the contract with the company, with the company’s consent.

[41] The TKS plumbing contract activity was as shown in the summary No.11/4/13 of Process. (I record that here Mr Glasgow’s evidence was somewhat unclear and unspecific, but the summary was that cash was paid by TKS to Windows, because the company had contracted with TKS, but Windows had in fact carried out the work.) Windows did so because the company was busy on other projects. The invoice was only ever submitted by the company for administrative reasons—the TKS system was set up with the company as a client, but it did not recognise Windows. For that reason, an invoice which would otherwise have been from Windows was in fact submitted by the company, but the payment was made direct to Windows.

(I record here that this evidence paid, apparently, absolutely no regard to the niceties of contract law or proper governance—it was perhaps the most stark evidence of a director paying virtually no attention to governance or the preference of creditors.)

[42] The defender used a company credit card, which had some personal expenditure and some company expenditure, such as paying creditors. Of this, £2,000–£3,000 was for his wife’s expenditure, and £5,000–£6,000 was his own. He stopped using the credit card in March 2011, in order to streamline expenditure and keep control over credit.

[43] He accepted that HMRC had visited his premises in relation to the debt on a couple of occasions prior to liquidation, and had sent reminders of money due. He had remortgaged his own property, and put money into both companies to meet some of this debt. He gave £50,000 to the company, and £25,000 to Windows. This was in about September 2011. The defender also paid creditors personally. He had a good relationship with his suppliers, built up over a long period, and he felt “morally obliged” to make payment to them, so they did not suffer. He had taken reduced payments from Windows, and had taken no dividend from either company after July 2011.

[44] In cross-examination, the defender was asked how all this crossassistance was documented. He said that the accountant, Mr Morren, would look at expenditure by each company. There was a history of cross-supply, and

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this “would often balance out”. However, he could “only imagine” what documents were involved, as he was not involved in that part of the business.

These would be internal invoices. The defender identified himself as the management of each company, with others as site managers. He accepted that, as sole director, it was for him to oversee the whole operation. He accepted that internal invoicing for employees supplied would be necessary, but he did not do this. He “would expect” a trail of internal invoices. His accountant would do the internal setting off of one invoice against another.

[45] He accepted that the norm for the industry was payment applications, and this was what happened when the company applied for payment. He accepted this should be the system for applications as between Windows and the company, except that the two companies were managed together and worked “hand-in-hand”. He accepted that it was a casual arrangement.

[46] In applying for payment, Windows would carry out the measurements, and inform the company, who would submit the application. There was “probably” a paper trail, with the site manager preparing the tender document and passing this up. He did not know if an invoice was ever raised by Windows and submitted to the company. When Sharkey made payment, the cheque was ambiguous, naming only “Glasgow & Weir”, so the defender chose to pay it to Windows. He was asked whether there was any documentation justifying this apparent diversion of payment and said that he’d “like to think that there was documentation”. He could not give an honest answer, because Mr Morren looked after inter-company trading, and he left things to him. (Unfortunately, Mr Morren did not give evidence.)

[47] He spoke to various timesheets, and was unable to describe in detail any arrangement by which one company would account to another for labour used. Again, this was for Mr Morren. He could not demonstrate where the company received any credit for resources it supplied to the Sharkey contracts, even though all payment went to Windows.

[48] He reiterated that he had a fantastic relationship with his suppliers, and that he had paid some personally. He had paid £33,226 of creditors personally post-liquidation (No.11/5/4 of Process). Creditors totalled, however, £350,850.54 (No.11/4/26 of Process), of which £117,394 was due to him personally. This still left a lot of unpaid creditors. He insisted that his creditors would be paid, as long as he was in business.

[49] He could not say if business had improved after the accounts of March 2011, which showed a credit balance only of a few hundred pounds. He had tried to condense it to a more manageable level. He agreed that he had to put in £84,000 or thereby to keep the business afloat. He could not say what the HMRC debt was from time to time. He would keep trading as long as he had contracts, and as long as he could put money in, until he was “told that I was running at a loss”. It was only after Mr Bolland investigated that he discovered he was owed £84,000, and not £14,000, but he did not know how this conclusion was reached.

[50] Although he had paid company receipts straight to Windows, this was because the work had been done by Windows. He insisted that he had kept creditors in mind, and had tried to talk to HMRC. His position was that “until someone tells you, I’ll continue to run the business”. When asked how he’d find out if the companies were insolvent, he said, “it was a bit laxy-daisy maybe. It was for the accountant to come to me”. He admitted that he chose not to pay HMRC, for cashflow reasons. He’d meet with Mr Morren about once a month, and would tell him about receipts, and they would discuss who they could pay. They had to pick and choose who they would pay.

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[51] The TKS plumbing invoice went via the company because TKS had them, and not Windows, on their computer system. There was no internal documentation.

[52] The defender could not give any evidence about treatment of the credit card. He intended that personal expenditure would be netted off against his director’s loan.

[53] The defender led Ian Bolland, an experienced forensic accountant whose remit was limited to carrying out an investigation into the intercompany dealings between the company and Windows. He looked at all intercompany transactions over a period of time. His findings are set out in a series of financial analyses at No.12/1/4 of Process. His analyses come from the bank statements of the companies, and he had access to the books and records of Windows, which the noter, as liquidator of the company, was not entitled to do. It was Mr Bolland who prepared the proof of debt form (No.11/5/3 of Process), showing sums due to Windows of £50,000. Separate sums were due to the defender. It proved, in his view, that the defender had been subsidising the company.The original estimate of £14,000 had been hasty and understated.

The true figure was much higher. He had not analysed the inter-company supply of labour in full, but rather the supply by the company of labour to Windows. He was only looking at inter-company transactions, not a full analysis of the workings of the contracts. He was “disappointed” that Mr Morran’s estimate of the defender’s loan account wasn’t closer to the true figure, but he may not have been aware of all of the cash injections.

[54] Mr Bolland’s analysis was interesting as far as it goes, but the focus of this proof is not the level of support given by the defender to the company, or the support given by the companies to each other. Rather, it is whether the company, acting by the defender, wrongfully paid, or subsidised the operation of, some creditors in preference to others, particularly HMRC.

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Discussion of the evidence

[55] There was little dispute between parties as to the facts, and I was able to accept all the witnesses as credible and reliable. This was not without some hesitation in relation to the defender, but on reflection I can accept that he probably acted in good faith, and that his failing was one of governance rather than dishonesty. There is no evidence that he diverted funds to himself, and it appears clear that he in fact paid substantial amounts of his own cash into the company to keep it running.

[56] A clear picture emerges of a director who has operated two companies interchangeably, but with little regard to the formalities of legal relations, either between the companies or between company and creditors. The defender has concentrated on the operation and survival of the respective businesses and has nurtured the interests of his trade creditors, sometimes to the point of paying the creditors out of his own personal assets. That is to his credit. In doing so, however, he has paid insufficient attention to the financial health of his companies from time to time, and has paid no adequate attention to the interests of the major creditor, namely HMRC. He used the world “umbrella” to describe the two businesses, and that appears to have been how he approached matters.

In doing so, he had no regard to the separate interests, and as a result the separate creditors, of the companies. His position that he “liked to think that there was” inter-company documentation, and that he was “alarmed” that intercompany debts had not gone through the accounts, is eloquent of an almost total failure to recognise and protect the separate interests of each company.

That is his first significant failing, and is the reason for the current proceedings.

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[57] His second significant failing is an inadequate level of monitoring of the solvency of the company. This is not directly relevant to the present claim, and little detailed evidence was led upon it, but his answers to some questions were quite startling. When asked about continuing to trade, he answered that he would do so until he was “told I was running at a loss”, while he would find out about insolvency when the accountant told him, because “it was for the accountant to come to me”. His evidence showed he had entirely delegated financial monitoring to the company accountant. No director is entitled to delegate this duty.

[58] The third significant failing is a failure to respect the equal rights of creditors, and the preference of trade creditors over non-trade creditors. The result is that HMRC assets were illicitly used to prop up the two businesses, and each company was used to cross-fund the other without adequate regard to safeguarding the interests of their respective creditors.

[59] I accept on the evidence of the pursuer’s witnesses that the company was insolvent by at least April 2012. The meetings in June 2012, shortly before insolvency, noted significant deficits, including indebtedness to HMRC of £68,000, later updated to £120,000, and all were agreed that the company was then insolvent. The difficulties were not recent. By June 2012 HMRC had demanded payment of £81,000, which they only did when debts were significantly overdue. Ms Veitch confirmed that insolvency was likely during April and May 2012. The accounts to 31 March 2011 showed the company was no more than breaking even.

[60] It is clear, in my view, that the defender did not sufficiently inform himself from time to time as to the financial health of the company. As a result, the company was able to sink into an insolvent position to the detriment of its creditors. Ms Veitch was surprised at the defender admitting that he had not been “hands on” for the previous 12 months. He was unable to explain why the company had been replaced by Windows on the Motel One contract. He could not say why a lower figure had been accepted for the Travelodge contract.

He was not able to answer elementary questions about the company’s running.

His answer that he could “only imagine” how the cross-supply between the two companies was documented shows a failure to make sure that the companies were in a formal, contractual relationship with each other, or that their respective finances, and thereby their respective creditors’ interests, were adequately identified and preserved. It is all neatly summed up by Mr Murray, who reported that the two companies were “run as effectively as the same”.

This position was not challenged or contradicted.

[61] The defender has submitted widely divergent claims for sums owed to himself. The director’s loan figure in the statement of affairs was only £14,000.

However, he submitted two claims on 17 October 2013 claiming personal sums due of £84,168 for “personal monies paid” and £33,226 for “trade creditors settled”. I do not regard this as evidence of dishonesty, but rather a consequence of the defender’s inadequate financial controls. I accept that the defender submitted the first claim without any real idea of the extent of his own loans, and that the second claim is likely to be based on adequate financial material. The second claim was much more forensic in its approach, and was based on the work of Mr Bolland, and I have no reason to doubt that it correctly reflects the results of Mr Bolland’s work.

[62] Of course, Mr Bolland’s analysis is only as good as the material upon which it is calculated, and I have no means of assessing the accuracy of that underlying documentation. There was no evidence from the company accountant, and the defender’s approach was to rely on the advice of others,

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rather than keep a clear view of the finances himself. I therefore have not made any finding in fact about the true sums due to or by the creditors, or the defender. That will be a matter for investigation by the noter in the continued administration of the liquidation of the company.

[63] It is clear that the defender did not pay adequate attention to the financial boundaries between the companies or with his own finances. He operated to keep the companies running, and was prepared to dip into his own finances on an ad hoc and informal manner. I would question whether the defender ever really troubled to understand the nature of the arrangement : to describe a debt of £50,063.96 as a claim by “David Glasgow trading as (Windows)” makes no sense as an analysis. It is either Window’s claim, or his own claim.

[64] The defender’s use of the company credit card is not, in my view, directly relevant evidence because of the timing. He took the same, slack view of the boundaries between the company finances and his own, but I accept the defender’s evidence that he offset this use from time to time against his director’s loans, and had substantially scaled back use of, and indeed had disposed of, the company credit card significantly prior to liquidation.

[65] The defender was referred to certain payments made between the companies, as set out in Apps.D (Travelodge contract) and F (Motel One contract) of No.12/1/4 of Process (Mr Bolland’s report). I have no reason to doubt these figures, but equally I have no detailed evidence as to why they are the correct figures. Mr Bolland presented these as accurate, and they were not substantially challenged, but that was not to say they were established in evidence, because they were not discussed in detail. It is the noter’s position that the overall inter-company debt is not the subject of these proceedings; rather, it is about a single element, namely recovery of sums which were wrongfully diverted from the company. In my view, it is for the noter, going forward, to examine these figures as part of the liquidation, and it would not be justified for me to find that these figures are proven correct, because no detailed examination of these was undertaken at proof. I have therefore not made any such findings in fact which might have the effect of binding the noter.

[66] Equally, the defender’s pleadings contain detailed figures of balances claimed by the defender, and the inter-company debt. These were not broken down in evidence, and they form part of the liquidation investigations. Again, it is for the noter to take these into consideration, and if they are correct, the defender will rank as a creditor for any such sums. I have not made findings in fact about these figures, as I do not have the material to make such findings, and they properly form part of the liquidation investigations.

[67] Against that factual background, I turn to consider the legal position.

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[68] Sections 171–177 of the Companies Act 2006 set out general duties of a director. Ms Buchanan, as part of a careful and comprehensive submission, set these out as including the following: – –

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to act in accordance with the company’s constitution and only exercise the powers for the purposes for which they are conferred; to act in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole. This duty has effect subject to any enactment or rule of law requiring directors, in certain circumstances, to consider or act in the interests of creditors;

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to exercise independent judgement; to exercise reasonable care, skill and diligence, being that which would be reasonably expected of a person carrying out the functions carried out by the director in relation to the company and the general knowledge, skill and experience that the director has; to avoid a situation in which he has, or can have, a direct or indirect interest that conflicts, or may conflict, with the interests of the company; not to accept a benefit from a third party; if interested, directly or indirectly, in a proposed transaction or arrangement with the company, he must make a declaration of that interest to the other directors.

[69] The director’s fiduciary duties are to act in good faith in the interests of the company, to exercise powers for a proper purpose, not to create or permit a conflict of interest and not to take any secret profit. In exercising skill and care a director need only exercise the skills he possesses, need not devote his continuing attention to the business, and can rely on his co-directors and officers, but he cannot use ignorance as a defence, and is expected to supervise activities.

[70] Importantly, in a situation where the company is of doubtful solvency, the company’s own interests are not the only criterion. The interests of the creditors become equally, or more, important: “Where the company is insolvent or insolvency is reasonably foreseeable, a director’s duty to act in the way he considers, in good faith, would be most likely to promote the success of the company is regarded as a duty to act in the way he considers, in good faith, would be in the best interests of its creditors as a whole. At this stage, the interests of the company are regarded as the interests of the creditors alone; their interests become paramount. . . . ” (Re Micra Contracts Ltd (in Liquidation), para.23.

[71] Therefore, when considering the nature of any transaction by an insolvent company, a director’s decisions are measured by whether he acted in good faith and in the interests of the company, and of the creditors as a whole.

Where the director has omitted to consider these criteria, the standard becomes an objective one, namely whether an intelligent and honest man in the position of the director of the company could, in the circumstances, have reasonably believed that the transaction was for the benefit of the company and its creditors (Re Micra Contracts Ltd, paras. 25–27) The burden of proof

F

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[72] As a result of the fiduciary nature of the director’s position, a director becomes obliged, in certain circumstances, to account for his actions and to demonstrate that he has acted properly. For example, once a liquidator has demonstrated that company funds have been transferred to the detriment of the company, and without apparent purpose of benefiting the company, the directors are then obliged to show that the transfer was legitimately in the interests of the company and its creditors. This obligation would also arise where a director has obtained personal benefit from company assets. It also applies to the fairness of distribution of assets in repayment of debt amongst the creditors. As set out in Re Micra Contracts Ltd [para.22]: “what is important is the adequacy of the fiduciary’s evidence as an explanation for the transactions with which the court is dealing. Such evidence may take different forms . . . Unsurprisingly, then, the court must look at the evidence and the facts quite closely and in the round’.

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[73] This exercise is not simply an arithmetical exercise, but requires the court to make a judgment whether, looking at the company assets and liabilities, the company could be reasonably expected to meet those liabilities. Directors are not free to take any action which put at real risk the creditors’ prospects of being paid without having first considered the creditors’ interests, rather than those of the company and shareholders (Re HLC Environmental Projects Ltd (in Liquidation)). The duty to consider the creditors’ interests are paramount arise when the company is insolvent or even of doubtful insolvency (Gwyer v London Wharf (Warehouse) Ltd). Insolvency is not pre-requisite. Exactly when the risk to creditors’ interests becomes real for these purposes is judged on a case-bycase basis (Re HLC Environmental).

A

B

The director’s duties in insolvency

[74] The particular duties in the present case were summarised by Ms Buchanan, as: – – –

a director has a duty to act in good faith and in a way that is most likely to promote the success of the company; where a company is insolvent or of doubtful insolvency this duty extends to consideration of the interests of creditors and their interest must be paramount; the duty imposed on directors to act bona fide in the interests of the a company and its creditors is a subjective one subject to three qualifications, namely: (i) where the duty extends to consideration of the interests of the creditors their interests must be considered paramount; (ii) the subjective test only applies where there is actual evidence of actual consideration of the best interest of the company, so where there is no such evidence the proper test is objective: whether an intelligent and honest man in the position of a director of the company concerned could in the circumstances have reasonably believed that the transaction was for the benefit of the company; and (iii) where a very material interest such as that of a large creditor in a company of doubtful solvency was unreasonably overlooked and not taken into account, the objective test must be applied;

[75] A court requires to ask itself whether the director in question honestly believed the act in question was in the interests of the company. Where there is no evidence that the director considered the best interests of the company, the test is whether an intelligent and honest man in the position of the director could have reasonably believed that the transaction was for the benefit of the creditors.

[76] The evidential burden is on a director to establish that the transaction was genuine.

[77] It is no defence for a director to say that he relied on accountants or third parties unless he had made enquiries and satisfied himself that they were in fact doing what he had required them to do.

[78] A company is unable to pay its debts as they fall due if that fact is proved or if the value of its assets was less than its liabilities taking into account contingent and prospective liabilities throughout the period when the challenged payments were made.

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D

E

F

The defender’s submission

[79] Counsel for the defender did not demur from these propositions. He accepted that the onus had shifted to the defender to explain why funds,

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ostensibly due to the company, were paid to Windows, but submitted that the onus had been discharged. He accepted that, in an insolvent trading position, the director would owe an equal duty to the creditors as he did to the company itself.

[80] He submitted that all sums had been vouched and had not been hidden. It was not an attempt to divert funds from the company. It was legitimate to trade out of an insolvent position, and the evidence showed that trading was with a view to keeping the company afloat and thereby in a position, in due course, to meet its debts. The company had excellent relations with its suppliers.

[81] It followed that there was no evidence of bad intent, and no evidence of dishonesty, nor a breach of fiduciary duty. The defender had injected his own funds into the company to keep it going, and had paid creditors himself.

[82] The company credit card had been used between October 2009 and April 2011, when there was no evidence that the company was facing insolvency. Such evidence did not emerge until April or May 2012. The entries had been dealt with by the accountant, and personal expenditure was reflected by adjusting the director’s loan account. The defender was previously living a “good lifestyle”, but had acted responsibly by bringing this to an end in about March 2011, when it became evident that trading conditions were difficult.

[83] As to the law, counsel submitted that s.212 was a “procedural” provision only (Blin v Johnstone). It therefore required an underlying breach of law. Whereas the court could ordain repayment of the approximately £187,000 claimed, this sum was extinguished by sums paid by the director to extinguish company liabilities. Any such order would therefore amount to a windfall to the company. In the present case, Windows had been paid off, so was not a creditor, and any sum repaid would be split amongst fewer creditors, rendering them better off than they would have been.

[84] Counsel submitted that there would be double recovery in such an event, which should not be ordered (Re Derek Randall Enterprises Ltd—no misfeasance because no loss by the company).

[85] Further, s.212 was framed in terms of breach of fiduciary duty, which required underlying dishonesty, which had not been demonstrated. The section did not create new duties or remedies.

[86] In context, recovery of sums was not a live issue, and there was no breach of duty.

[87] Further and in any event, if there were some liability, then the court should grant relief under s.1157 of the Companies Act 2006. Quite apart from any substantive defence, the defender’s clear motivation was to keep the company running. It was reasonable to attempt to trade out of insolvency, unless the position was plainly hopeless. The defender had invested his own money for no personal benefit. He had taken no salary for 15 months prior to insolvency, and no dividends since July 2011. He was not seeking to gain any personal benefit. There was no guidance in the authorities that counsel could discover which related to when s.1157 relief would be granted.

Decision on s.212 remedy

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[88] In my view, it is clearly appropriate that the noter be ordained to pay the sums craved.

[89] I can agree with many of the mitigatory features founded upon by counsel. The payment of these sums was not hidden. The defender has not been shown to have acted dishonestly, or with bad intent. These sums were diverted in order to keep either or both companies trading, to fulfil the relevant

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contracts. It is legitimate, in some circumstances, to trade out of an insolvent position. These points, however, are not sufficient to avoid such liability.

[90] I note in passing that the tenor of some of the questioning, to the effect that it was more efficient for a main contractor to make payment direct to a sub-contractor, or that such an arrangement might be excused as normal, were not insisted in in submission. To depart from any such submission was entirely correct, in my view, as such an approach could not succeed. Counsel focused instead on a submission that the defender had not acted in breach of any fiduciary duty, and that therefore s.212 should not apply.

[91] I have set out excerpts of s.212. It does not require any breach of fiduciary duty in order to operate. It might be correct to describe it as a “procedural” provision, but it [is] still, as Blin makes clear, available for a wide variety of wrongful acts by a director, including breach of trust, misfeasance, negligence or other wrongful acts or omissions. The section itself applies where a director has “misapplied or retained, or become accountable for, any money or other property of the company” as well as where a director is in breach of any fiduciary duty. I am unable to read the section in the narrow sense submitted by counsel. It is plain on the wording that s.212 is available as a remedy where, as here, a director has caused or permitted a payment due to the company to be paid to a third party. I therefore repel that submission.

[92] I have stated that I do not believe the defender to have acted dishonestly.

It is abundantly clear, however, that funds due to the company have been diverted. Specifically: (a) The sum of £59,264.96 identified by Mr Bolland (at No.12/4 of Process, App.D, p.1 of 15) was paid on 19 April 2012 to Windows’ bank account.

It was due under the Travelodge contract, which was a contract between the company and Sharkey. It was paid by cheque made out to “Glasgow & Weir”, and was paid either by the defender or with his knowledge into the Windows account. It was therefore placed beyond the reach of creditors of the company. Windows ought to have ranked only as a creditor for that money, under any sub-contract, and was not entitled to be preferred to this debt. The defender has failed to discharge the onus of showing that any such payment was justified. (b) The sum of £58,866.59, also so identified, was similarly paid to Windows bank account on 16 May 2012. The same observations apply. It amounted to a preference of Windows over the company’s other creditors. The defender has failed to discharge the said onus. (c) The sum of £22,087.50 identified by Mr Bolland (at No.12/4 of Process, App.E, p.1 of 6) was paid to Windows’ bank account. It was due under the Motel One contract, which was a contract between the company and Sharkey. The same observations apply. The defender has failed to discharge the said onus. (d) The sum of £30,452.12 also so identified, was similarly paid to Windows’ bank account on 8 June 2012. The same observations apply. The defender has failed to discharge the said onus. (e) The sum of £6,588 was paid by TKS Plumbing for work carried out under its contract with the company. It was paid to Windows. The same observations apply. The defender has failed to discharge the said onus.

[93] The sum of £13,684 was charged to personal expenditure on the company credit card. However, the defender has proved that he ceased use of this credit source in about 2011. It was his practice to net-off any such sums against his

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director’s loan from time to time. There is no sufficient evidence to show that this sum remained outstanding by April, May or June 2012, or that it properly remains to be refunded to the company.

[94] Accordingly, it is appropriate that the defender be compelled to restore to the company the sums which were misapplied, namely the sums set out (a)–(e) above. These sums total £177,259.17.

[95] I have already set out my findings about the defender’s conduct. In my view he was substantially in breach of his director’s duties to the company creditors. While I can accept he was trying to keep the company afloat, with the likely aim of paying off the creditors in due course, he did so in a manner which was not legitimate, namely by preferring the debts of Windows, and by trading using funds properly payable to the creditors. I have heard no evidence of any precautions taken to ensure that such acts were in the best interests of the company and its creditors, and I do not accept that the defender took any steps, beyond merely remaining in business, to safeguard the creditors’ interests. It is not enough simply to be well-meaning. Even if there were such evidence, I could not accept that an intelligent and honest man in the position of the defender could have reasonably believed that diverting funds was for the benefit of all the creditors. In any event, the defender has failed to show that the diversion of funds was justified in the face of these competing interests of other creditors.

[96] Accordingly, these sums should be restored to the company. The defender, having been the sole architect of the funds being diverted to Windows, and the same having been in breach of his duties under s.212, is liable to do so. He may have a derivative claim for these sums from Windows, but that is beyond the scope of the present case and I give no view on that.

[97] I turn to consider counsel’s application for relief.

Application for relief

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[98] Section 1157 of the Companies Act 2006 provides: [the sheriff quoted the section as set out above and continued:] [99] In the present case, I can accept that the defender has acted honestly.

It would take direct and compelling evidence for me to find otherwise.

However, I cannot find that he has acted reasonably, at least in his capacity as director. While it may make sense to a layman to leapfrog payment from main contractor to sub-contractor, such an operation does not pay any heed to the fact that the other creditors of the company are thereby bypassed and prejudiced. To ignore the company’s creditor’s interests in this way cannot be described as reasonable.

[100] Second, as already discussed, there was nothing reasonable about leaving the monitoring of insolvency, and the documentation of inter-company contracts, to an unsupervised accountant. A director cannot simply shrug off and delegate his duties in that way.

[101] Third, as already discussed, the circumstances of the case show that the defender preferred some creditors over others. Not only was Windows preferred as a creditor, but so were the trade creditors upon which one or both of the companies depended for continued trading. The biggest outstanding creditor was HMRC, who were left to make repeated requests for payment, without result. I heard no evidence of the any concern for that liability, or for protection of the interests of non-trade creditors in general.

[102] Fourth, the defender has paid his own financial resources into the company, but has no right to be treated as a preferential creditor. He has a right to recover those moneys in a liquidation, but will rank alongside the

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other creditors. It is therefore not fair to offset any sums paid in against moneys owing, because there is no guarantee, or indeed likelihood, that the liquidation will make payment in full to creditors. To allow him relief would be to prefer the defender as a creditor.

[103] Fifth, counsel submitted that there might be double recovery by the creditors if the defender were to pay these sums to the company. I cannot accept that, because these sums ought to have been available to those creditors in any event, and were wrongly diverted away from the company. In any event, it cannot be described as a “windfall benefit” when a creditor loses less than it might otherwise have—no creditor intends to make a loss on sums owed.

[104] For all these reasons, the s.1157 test is not satisfied, and I will refuse to make any order thereunder.

A

B

Disposal

[105] I will grant an order under s.212 in respect of the sums set out at (a)–(e) above. In doing so, I note that the sums claimed by way of interest are at the full judicial rate from various dates in 2012. In my view, such a recovery is likely to materially exceed the actual loss to the company, as the interest rate is high and over several years. Neither party addressed me specifically on the interest rate, and I will give parties the opportunity of being heard on that point.

[106] The only other issue is the expenses of this process. I will fix a case management conference on a date to be afterwards fixed, and parties can contact the court to arrange a date at their convenience, if the matter cannot be otherwise agreed between them.

For the pursuer: Buchanan.

For the defender: Edward.

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A SHERIFF COURT

8 February 2016

Edinburgh Sheriff Peter J Braid B

ARGYLL AND BUTE COUNCIL

Pursuer

against JOSEPHINE CLARE LINZEE GORDON

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Defender

Local authorities—Provision of care accommodation—Person in receipt of care disponing heritable property to third party for no consideration—Whether gratuitous alienation with intention of avoiding charges for accommodation—Health and Social Services and Social Security Adjudications Act 1983 (c.41), s.21 Section 21 of the Health and Social Services and Social Security Adjudications Act 1983 provides, inter alia: “(1) . . . where— (a) a person avails himself of part III accommodation; and (b) that person knowingly and with the intention of avoiding charges for the accommodation— (i) has transferred any asset to which this section applies to some other person or persons not more than six months before the date on which he begins to reside in such accommodation; or (ii) transfers any such asset to some other person or persons whilst residing in the accommodation; and (c) either— (i) the consideration for the transfer is less than the value of the assets; or (ii) there is no consideration for the transfer, the person or persons to whom the asset is transferred by the person availing himself of the accommodation shall be liable to pay to the authority providing the accommodation or arranging for its provision the difference between the amount assessed as due to be paid for the accommodation by the person availing himself of it and the amount which the Local Authority received from him for it.

(2) This section applies to cash and any other asset which falls to be taken into account for the purpose of assessing under section 22 of the National Assistance Act 1948, the ability to pay for the accommodation of the person availing himself of it. ...

(4) Where a person has transferred an asset to which this section applies to more than one person, the liability of each of the persons to whom it was transferred shall be in proportion to the benefit accruing to him of the transfer.

(5) A person’s liability under this section shall not exceed the benefit accruing to him from the transfer.

(6) Subject to subsection (7) below the value of any asset to which this section applies, other than cash, which has been transferred shall be taken to be the amount of the consideration which would have been realised for it if it had been sold on the open market by a willing seller at the time of the transfer.

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...

(8) ‘Part III Accommodation’ means accommodation provided under section 21 to 26 of the National Assistance Act 1948, the Social Work (Scotland) Act 1968 or the Mental Health (Care and Treatment) (Scotland) Act 2003.”

Section 22 of the National Assistance Act 1948 provides, inter alia: “(2) Subject to the following provisions of this section, the payment which a person is liable to make any such accommodation shall be in accordance with a standard rate fixed for that accommodation by the authority managing the premises in which it is provided and that standard rate shall represent full cost to the authority of providing that accommodation.

(3) Where a person for whom accommodation in premises managed by any local authority is provided, or proposed to be provided, under this Part of this Act satisfies the local authority that he is unable to pay therefor at the standard rate, the authority shall assess his ability to pay. . .and accordingly determine at what lower rate he shall be liable to pay for the accommodation. ...

(5) In assessing as aforesaid a person’s ability to pay, a local authority shall give effect to regulations made by the Secretary of State for the purposes of this subsection.’

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B

C

Regulation 20 of the National Assistance (Assessment of Resources) Regulations 1992 (SI 1992/2977) provides: “Capital limit No resident shall be assessed as unable to pay for his accommodation at the standard rate if his capital calculated in accordance with regulation 21 exceeds £26250.”

D Regulation 25 of the 1992 Regulations provides: “Notional capital (1) A resident maybe treated as possessing actual capital of which he has deprived himself for the purpose of decreasing the amount that he may be liable to pay for his accommodation except— (a) where that capital is derived from a payment made in the consequence of any personal injury and is placed on trust for the benefit of the resident; or (b) to the extent that the capital to which he is treated as possessing is reduced in accordance with regulation 26; ...

(5) Where a resident is treated as possessing capital under paragraph (1). . .the foregoing provisions of this Part shall apply for the purposes of calculating this amount as if it were actual capital which he does possess.”

The pursuer, a local authority, raised an action to recover the sum of £42,750 from the defender in respect of provision of care accommodation to a third party. It claimed that the defender had received gratuitous alienation of an asset that had been made knowingly and with the intention of avoiding charges for the accommodation and was therefore, indebted to it by virtue of s.21 of the 1983 Act. The defender claimed that there was no liability under s.21 because the disposition was not made knowingly and with the intention of avoiding accommodation charges.

The third party was in receipt of care accommodation from June 2005 until her death on 4 January 2013. The sum sued for was for a proportion of the charges incurred for the period from 11 January 2010 until her death. She had owned heritable subjects prior to taking up residence at the care home which had been her principal dwelling house that had a value of £95,000. In

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September 2005 she disponed the cottage to the defender and her late husband for no consideration following upon missives which had been concluded on 7 June 2005. In January 2010 the third party was no longer able to meet the charges for her accommodation out of her estate. On 8 April 2010 the pursuer wrote to the third party’s solicitors informing them that the pursuer had concluded that the third party had deprived herself of the value of the property and that the transfer was made for the purpose and with the intention of avoiding or decreasing the amount that she would have to pay for her accommodation. No challenge was taken to the pursuer’s position by means of judicial review.

The defender averred that the question of the transfer of the property was discussed before the third party was admitted to hospital and thereafter to residential care. The cottage had originally belonged to an estate and the third party wished the cottage to be returned to the estate. The husband of the defender suffered from multiple sclerosis and the third party wished to make the cottage available to him to live in and the transfer of the property was effected for that purpose. At that time the third party was 85 years old and had substantial capital resources in addition to the cottage and it was not envisaged that she would require to remain in residential care for such a period that her capital would be exhausted.

Counsel for the pursuer submitted that the defence was irrelevant because the pursuer had fixed the rate to be paid by the third party in the exercise of the statutory function. The pursuer having made a determination that the heritable property had been disposed of for the purpose and with the intention of avoiding or decreasing the amount that the third party may be liable to pay for her accommodation that was effectively an end to the matter and the determination could be challenged only by judicial review. The sheriff court had no power to exercise any supervisory jurisdiction and decree de plano should be granted.

Counsel for the defender submitted that the authority relied on by the pursuer was distinguishable from the present case since different statutory provisions were involved. Section 21 of the 1983 Act did not confer on a local authority the power to make a decision. While the local authority might form a view under s.21 as to whether a third party was liable to make payment, it was not exercising any jurisdiction to make a decision and accordingly the supervisory jurisdiction of the court was not being invoked. Instead s.21 imposed liability under the various criteria laid out in its subsections which were all questions of fact for which it was open to the sheriff to decide.

Held (1) that viewing s.21 of the 1983 Act in isolation, and applying normal principles of statutory construction, there was nothing about its language which suggested that a local authority was entrusted with the jurisdiction to make a determination as to whether or not a person to whom an asset had been transferred was liable to make payment to the local authority (para.22); (2) that the charging regime under which the authority had made a determination applied only in a question between the local authority and the service-user and there was no compelling reason why the separate question of which other persons in addition to the service-user might have been liable to pay for charges which had been imposed should have formed part of the same unitary regime (para.23); and (3) that the supervisory jurisdiction was not being invoked (para.25); and pursuer’s preliminary plea repelled and proof allowed.

Yule v South Lanarkshire Council, (IH) 2001 S.C.L.R. 26; 2001 S.C. 203; 2000 S.L.T. 1249 distinguished.

Cases referred to:

G

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West v Secretary of State for Scotland, (IH) 1992 S.C.L.R. 504; 1992 S.C. 385; 1992 S.L.T. 636

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Yule v South Lanarkshire Council, (IH) 2001 S.C.L.R. 26; 2001 S.C. 203; 2000 S.L.T. 1249

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 8 February 2016.

SHERIFF BRAID Introduction

B

[1] This is an action brought under s.21 of the Health and Social Services and Social Security Adjudications Act 1983, in which the pursuer, a local authority, seeks to recover from the defender the sum of £42,750 in respect of provision of care accommodation to a third party. The pursuer’s case, stated briefly, is that the defender is indebted to it by virtue of s.21 of the 1983 Act, having received gratuitous alienation of an asset by the third party, that alienation having been made knowingly and with the intention of avoiding charges for the accommodation. The defender does not dispute that a gratuitous alienation was made, nor, if she is liable to the pursuer at all, that the sum sued for is the sum which is payable. Her position is that s.21 does not impose liability on her because the disposition in question was not made knowingly and with the intention of avoiding the accommodation charges.

[2] A debate on the relevancy of the defence to the action took place before me on 19 January 2016. Mr Hay, advocate, appeared for the pursuer and Mr Blane, solicitor, for the defender.

C

AGREED FACTUAL BACKGROUND [3] Most of the factual background is not in dispute. In particular, the following is agreed. The third party was in receipt of care accommodation provided by the pursuer from 3 June 2005 until her death on 4 January 2013.

This accommodation was provided at Ardfenaig Residential Home, Ardrisharg, Lochgilphead, in terms of the National Assistance Act 1948. In terms of that Act, the third party was properly the subject of charges set by the pursuer.

Those charges were met from her resources from 3 June 2005 until 10 January 2010, in the sum of £167,000. The present action involves the recovery of a proportion of the charges incurred for the period from 11 January 2010 until her death. The third party owned heritable subjects in Kilmartin, Argyll prior to her taking up residence at the care home and until that time she used it as her principal dwelling house. As at 17 October 2005 the cottage, which was unencumbered, had a market value of £95,000. On 30 September 2005, the third party disponed the cottage to the defender and her late husband equally for no consideration beyond love, favour and affection conform to missives concluded on 7 June 2005.

[4] A copy of the letter concluding the missives, dated 7 June 2005, is lodged as No.5.1.1 of Process. It contains a qualification in the following terms: “The seller declares that she is taking up a place in a retirement home.

While she will be fully funded from her own resources for the foreseeable future, it is a possibility, which the purchasers will accept, that the local authority might need to take steps to try to reduce the conveyance in order to recover costs which they have paid for the sellers to stay in residential/ nursing home accommodation. The purchasers will be bound to accept the property in the full knowledge of this risk. For the avoidance of doubt, any two-year limitation of missives will not apply to the terms of this clause.”

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[5] As a result of the transfer of the cottage, the third party’s estate was divested of an asset worth £95,000 for no consideration and, after taking sale costs into account, the benefit derived by the defender was £42,750.

[6] The pursuer having become aware of the transfer and having initiated enquiries, a letter was sent to it by DM Mackinnon, solicitors on behalf of the third party. A copy of that letter is No.5.1.2 of Process. In that letter the solicitors answered various queries which the pursuer had posed about the transfer.

[7] Thereafter, the pursuer wrote to the firm of Messrs DM Mackinnon by letter dated 8 April 2010, a copy of which is No.5.1.3 of Process. That letter is in the following terms: “Dear Sirs Mrs Jean Duncan Jones “I refer to your previous correspondence with our Community Services Department in connection with your client’s application for local authority funding to meet the costs of residential care.

“I would advise that the Head of Service for adult care has considered the information provided by you in connection with the transfer of the property. . .to Mr James Gordon and Mrs Josie Gordon on 30 September 2005 for no consideration and has concluded that your client has deprived herself of the value of the property, at that time namely £90,000, and that the transfer was made for the purpose and with the intention of avoiding or decreasing the amount that she may be liable to pay for her accommodation.

“In reaching this decision, the head of service has considered the terms of your letter (sic) of 14 December 2009 and 17 February 2010. He has also taken into account the fact that, at the time of the transfer, your client had been resident in a care home since June 2005.

“I would advise that the council intend to proceed in terms of s.21 of the Health and Social Security and Adjudication (sic) Act 1983 and hold Mr James Gordon and Mrs Josie Gordon liable to pay the council the difference between the amount assessed as due to (sic) for the accommodation by Mrs Duncan Jones and the amount we received from her for it as the transfer took place while Mrs Duncan Jones was residing in residential accommodation.

“Further, the head of adult care has advised that the council will assess Mrs Duncan Jones’ contribution on the basis of the notional capital of £90,000 plus capital held by her and an account will be issued to Mr and Mrs Gordon and to your client via yourselves on the basis of the proportion of the cost assessed as due to be paid relative to the capital held by Mrs Duncan Jones and the capital she transferred to Mr and Mrs Gordon.

“If you do not agree with the terms of this letter, you have the right to ask for a review by the Executive Director – Community Services.

“Yours faithfully” [8] Finally, it was common ground that following that letter there had been consistent correspondence between solicitors acting for the third party, the defender’s solicitors and the pursuer in which the liability of the defender, in particular, had been disputed, but that since the letter had been written, no steps had been taken to challenge the pursuer’s position by means of judicial review.

Section 21 of the Health and Social Services and Social Security Adjudications Act

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[9] The pursuer’s claim, as has already been pointed out, is founded upon s.21 of the Health and Social Services and Social Security Adjudications Act 1983 (the 1983 Act) which provides: [The sheriff quoted the section as set out above and continued:]

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Section 22 of the National Assistance Act 1948

[10] Section 22 of the National Assistance Act 1948 (the 1948 Act) provides: [The sheriff quoted the section as set out above and continued:] The National Assistance (Assessment of Resources) Regulations 1992/2977

[11] The National Assistance (Assessment of Resources) Regulations 1992/2977 (the 1992 Regulations) provide: [The sheriff quoted the regulations as set out above and continued:] B

The defences

[12] The defence to the pursuer’s claim is found within ans.8 of the defences which insofar as material is in the following terms: “The possibility of transferring (the heritable property in question) to the defender and her late husband was first considered by Mrs Duncan Jones in late 2004 and again in early 2005, all before Mrs Duncan Jones was admitted to hospital and thereafter to residential care. Mrs DuncanJones and her late husband were extremely close to the defender and her family. (The property) forms part of Poltalloch Estate, owned by the defender’s family. Mrs Duncan- Jones wished the cottage to be returned to the estate. Robert James Nicholas Linzee Gordon was diagnosed as suffering from multiple sclerosis in November 2002. His condition deteriorated quickly and he and the defender considered moving to Poltalloch. Mrs Duncan- Jones wished to make (the property) available to them to live in and the transfer of the property was effected for that purpose.

At the time of the transfer Mrs Duncan-Jones was 85 years old. She had substantial capital resources in addition to the cottage. It was not envisaged

by Mrs Duncan-Jones or her advisers that she would require to remain in residential care for such a period that her capital would be exhausted.”

C

D

The pursuer’s submissions

[13] Against the foregoing background, the parties’ competing submissions can be stated relatively succinctly. Counsel for the pursuer submitted that the defence was irrelevant because the pursuer had fixed the rate to be paid by the third party in the exercise of a statutory function. The above statutory provisions, to which he referred, formed part of a single scheme. The pursuer having made a determination that the heritable property had been disposed of for the purpose and with the intention of avoiding or decreasing the amount that the third party may be liable to pay for her accommodation, that was effectively an end to the matter. That determination could be challenged, whether by the service-user or the defender, only by judicial review in the Court of Session. The sheriff court had no power to exercise any supervisory jurisdiction in respect of the pursuer’s decision. Accordingly this court could not interfere with the pursuer’s decision and decree de plano should be granted.

[14] In elaboration of his basic submission, counsel further submitted that three points could be taken from s.22 of the 1948 Act. First, the rates to be charged were to be fixed by the authority managing the premises, in accordance with subs.(2). Second, the local authority had the power to determine ability to pay in order to fix a rate lower than the fixed rate (subs.(3)). Third, the local authority must give effect to any regulations made by the Secretary of State for the purpose of assessing ability to pay (subs.(5)). Turning to the 1992 Regulations, the effect of reg.20 was that no resident could be assessed as unable to pay for his accommodation if his capital exceeded £26,250 [Or whatever the prescribed figure happens to be from time to time]. By virtue of

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reg.25, where a person had deprived himself of an asset he may be treated as notionally still holding it for the purpose of assessment of his ability to pay.

The foregoing provisions set out the charging mechanism and regime against which the local authority operated when it was assessing ability to pay.

Section 21 of the 1983 Act then dealt with the question of liability of others and four points could be taken from it. First, liability arose for charges in respect of care accommodation when the service-user transferred an asset whilst residing in accommodation, or within six months prior thereto, for no consideration where the service-user did so knowingly and with the intention of avoiding charges for the accommodation. Second, liability was in proportion to the benefit accruing to each person. Third, liability did not exceed the value of the benefit. Fourth, the value was taken to be the consideration it could have realised on the open market.

[15] Taking all of the foregoing provisions together, counsel submitted that a local authority, when presented with information which might suggest deprivation of an asset, may make a determination as to what the intention of the service-user was. Having made such a determination, there was no statutory mechanism for any form of appeal. The only method by which any person could take issue with any determination was by means of judicial review.

[16] In support of this submission, counsel referred to the case of Yule v South Lanarkshire Council. That case had involved the same statutory provisions as were relevant in the present case, and the facts were similar. The local authority had made a decision that the service-user was not entitled to public funding in respect of the cost of nursing home accommodation because she was in possession of notional capital in excess of the then-prescribed limit by reason of the value of a dwelling house which she had disponed in fee to her granddaughter for no consideration under reservation to herself of the liferent. A petition for judicial review was brought by the service-users’ son, as her attorney, challenging the decision. The Inner House held that in considering whether there was notional capital the local authority must look to the information before it in order to determine whether a purpose of decreasing the amount payable for accommodation could be deduced. It must have material before it from which it could reasonably be inferred that deprivation took place deliberately and with a purpose of the nature specified. The local authority could not look into the mind of persons involved in the disposal but could only look at the nature of the disposal within the context of the time and circumstances in which it took place. It was further held that it was open to a local authority to reach a view as to the purpose of a disposal transaction without any specific finding as to the exact state of knowledge or intention of the applicant so long as to the primary facts were such as reasonably to lead the inference that the purpose was at least in part that of decreasing the amount the applicant might be able to pay for accommodation.

[17] While the decision in Yule had focused on the 1948 Act, the same approach, submitted counsel, should be taken in relation to s.21 of the 1983 Act, as in substance, it was the same decision which was being made. It would be anomalous if there could be a different outcome under the two provisions when they formed part of the same scheme.

[18] Counsel further referred to the case of West v Secretary of State for Scotland in support of his argument that the decision which was taken by the pursuer in this case was one which was subject to the supervisory jurisdiction of the Court of Session. (He also referred to further authorities in support of his submission that the sheriff court did not have a supervisory jurisdiction. I

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do not propose to refer to those, since it is not disputed, nor could it be, that the sheriff court does not have a supervisory jurisdiction.)

A

The defender’s submissions

[19] In responding to counsel’s submission, Mr Blane for the defender submitted that Yule was clearly distinguishable from the present case since different statutory provisions were involved. In Yule, the local authority had reached a decision in terms of the 1948 Act and that decision was properly challengeable only by means of judicial review. By way of contrast, s.21 of the 1983 Act did not confer on a local authority the power to make a decision.

While Yule may be informative and may provide guidance as to the approach to be taken by the court in deciding whether liability was established under s.21, it did not amount to authority for the proposition that the only means by which a person could challenge a claim under s.21 was by means of a judicial review. While a local authority might form a view under s.21 as to whether a third party was liable to make payment, it was not exercising any jurisdiction to make a decision. Accordingly, the supervisory jurisdiction of the court was not being invoked. Rather, s.21 imposed liability where the various criteria laid out in subs.(1)(a), (b) and (c) were satisfied. Those were all questions of fact which it was open to a sheriff to decide. Had the legislature wished to confer on a local authority the power to make a decision, then it could have said so. However, the provision was notable for its lack of any provision such as “in the opinion of a local authority” or “a local authority may determine that. . .”.

[20] Further, Mr Blane submitted that the letter of 8 April 2010 No.5.1.3 of Process could not be viewed as a decision in any event. At least insofar as the defender was concerned, it amounted to no more than a statement of intention to proceed under s.21 of the Act. [21] Finally, Mr Blane submitted that the pursuer’s plea-in-law, which referred to liability existing by reason of s.21 (and not by reason of any decision reached) underlined that the supervisory jurisdiction of the court was not in fact being invoked by the pursuer. The point being put in issue by the defender, and the short question for the court, was whether she was liable under s.21 or not. That was a matter for proof and the pursuer’s preliminary plea should be repelled.

B

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Discussion

[22] In my view the defender’s submissions are to be preferred. In the first place, viewing s.21 of the 1983 Act in isolation, and applying normal principles of statutory construction, there is nothing about its language that suggests that a local authority is entrusted with a jurisdiction to make a determination as to whether or not a person to whom an asset has been transferred is liable to make payment to the local authority. All that the section does is to set out three conditions which, if satisfied, render such a person liable to make payment, and limit the amount for which he is liable to the value of the asset.

The conditions are all questions of fact, namely, (paraphrasing): (a) that the service-user has availed himself of Pt III accommodation; (b) that the serviceuser has knowingly and with the intention of avoiding charges for the accommodation transferred the asset not more than six months before the date on which he began to reside in the accommodation, or so transferred it whilst living in the accommodation; and (c) that there was either no consideration or consideration for less than the value of the asset. If a local authority considers that those conditions are all met, then it is open to it to

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request payment from the transferee. If the transferee denies his liability under the section, then it is open to the local authority to seek redress in the courts in the usual way, leaving it to the court to decide whether or not the conditions are indeed satisfied. That this is the correct analysis is borne out by the pursuer’s plea-in-law which is that the defender is indebted to the pursuer in terms of s.21 of the 1983 Act (and not by virtue of any decision reached).

[23] The pursuer, of course, argues that s.21 should not be viewed in isolation but as part of a unitary regime for charging. While the statutory provisions relied upon by the pursuer are all relevant to a local authority’s ability to recover charges, I disagree that they are all part of a unitary regime.

On the contrary, s.22 of the 1948 Act and the 1992 Regulations do form part of the same charging regime, and s.22 specifically confers the power on a local authority to determine the amount to be paid by a service-user for the provision of accommodation. In the course of reaching such a determination the local authority is empowered in terms of reg.25 to treat a resident as possessing actual capital of which he has deprived himself for the purpose of decreasing the amount that he may be liable to pay for the accommodation. The local authority is thus charged with the function of determining how much a service-user should pay, and in reaching that decision may treat capital which has been disposed of as still being the capital of the service-user, if the disposal was done for the purpose of decreasing the liability of the service-user. It is easily seen that any determination under s.22 is challengeable only by judicial review, since a local authority, in making such a determination, is exercising a function conferred upon it by the 1948 Act. However, the charging regime under which the authority makes such a determination applies only in a question between the local authority and the service-user. There is no compelling reason why the separate question of which other person(s), in addition to the service-user (who is the primary debtor), may be liable to pay for charges which are imposed should form part of the same unitary regime.

The wording in reg.25—“for the purpose of decreasing the amount that he may be liable to pay” —is different from that in s.21—“knowingly and with the intention of avoiding charges”. The two formulations might usually result in the same outcome, but need not do so. A further indication that the two provisions do not form part of a single unitary scheme is that the s.21 liability arises only where the transfer has been made while the service-user is residing in the accommodation or within six months before he began to reside there; whereas there is no such limitation in respect of reg.25. Moreover, s.21 specifically raises the issue of no, or inadequate, consideration whereas reg.25 simply refers to the deprivation of an asset. In short, the issues which are raised by the two provisions are not the same. It is noteworthy, too, that in Yule the Lord Ordinary had held that the local authority was well founded in its submission that the 1948 Act and the 1992 Regulations (together with the Social Work Scotland Act 1968, which was not referred to in the present case) when regarded together did constitute a self-contained scheme for the payment of accommodation charges and for the assessment of ability to pay; and so, by necessary implication, s.21 (which had been relied upon by the petitioner in that case) did not form part of that scheme (see Yule at pp.211–212). That admittedly arose in the context of an argument by the petitioner that s.21 did form part of the same scheme and that consequently the only period that could be looked at in assessing the intention of the service-user was the six months prior to her admission to the accommodation. That particular argument was not relevant here, but it seems to me that either s.21 is part of a self-contained scheme or it is not, and the Lord Ordinary’s view that it was not

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was not challenged before the Inner House, nor was his view the subject of any adverse comment.

[24] Counsel for the pursuer argued that it was anomalous that a local authority should be able to make a decision which was binding quoad the service-user, but not binding quoad the transferee. Various responses can be made to that. First, as the provisions are not, as I have just concluded, part of one unitary scheme, such a result cannot be seen as anomalous. Second, as I have pointed out, different (albeit similar) tests fall to be applied. The application of different tests may, on occasion, lead to different outcomes.

Third, it is not necessarily anomalous that the court should be the arbiter in relation to a third party’s liability to pay for costs incurred by a service-user.

The reverse could be argued, namely that it could be seen as anomalous, or at the very least, surprising, that any person, even a local authority, should be given the power to determine conclusively that a person with whom it had no contract and to whom it had provided no service, should be liable to make payment for a service provided to somebody else. Similarly, it is hard to see why a local authority rather than the court should be the final arbiter as to whether or not consideration was adequate or not (the adequacy of consideration is not in issue in the present case, but if the pursuer’s argument is correct, the defender would not be entitled even to challenge the adequacy of consideration other than by judicial review, which would be a surprising outcome). Finally, even if it is anomalous, that anomaly is for Parliament to resolve.

[25] Furthermore, I agree with Mr Blane that not only does s.21 not confer any jurisdiction on the local authority to make a decision, examination of the pursuer’s letter of 8 April 2010, No.5.1.3 of Process, does not disclose that the local authority purported to reach any determination under that section vis-á-vis the defender. The letter does refer to a decision having been reached but the language used: “your client has deprived herself of the value of the property” and the reference to “the transfer having been made for the purpose and with the intention of avoiding or decreasing the amount that she may be liable to pay for her accommodation” mirrors the language of reg.25 but not of s.21 and strongly points to the decision being one under s.22 of the 1948 Act. The fact that the letter was addressed to solicitors acting for the serviceuser, rather than to the defender, also strongly suggests that the decision was confined to one under s.22. Beyond that, the letter amounts to no more than a statement of intention to proceed in terms of s.21 against the defender and her husband, as of course the pursuer was entitled to do (and has done).

While, as I have already acknowledged, it is trite law that only the Court of Session may exercise a supervisory jurisdiction, I do not consider that the supervisory jurisdiction is being invoked. There is no decision which the defender (as opposed to the service-user) could have challenged by means of judicial review and, by not having done so, she is not deprived of her entitlement to defend the present action on the straightforward ground that the conditions in s.21 have not been satisfied and that she has no liability thereunder.

[26] Finally, it should be obvious from the foregoing reasoning, but for the avoidance of doubt, I agree with Mr Blane that Yule is clearly distinguishable.

Stated simply, that case involved the review of a decision by the local authority under s.22 of the 1948 Act; whereas this case does not involve the review of any decision, let alone one under s.22. If anything, I derive support from Yule given the Lord Ordinary’s views as to which provisions were part of a unitary charging scheme and which were not. As Mr Blane acknowledged, the court’s comments in Yule as to the approach to be taken by a local authority in ascertaining the

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service-user’s intention may inform the approach to be taken by the court in a case such as the present, but that is a question for another day.

Decision

B

[27] I have therefore repelled the pursuer’s preliminary plea, and the action must now proceed towards a proof (the defender’s preliminary plea having previously been repelled). I have allowed a proof on dates afterwards to be fixed, in order that the parties might consider how long will be required. I have also assigned a procedural hearing to call before me at 2.00 pm on 25 February 2016, to fix the dates and duration of the proof, and to deal with the expenses of the debate.

For the pursuer: Hay, instructed by Argyll and Bute Council.

For the defender: Blane.

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A SUPREME COURT

10 February 2016

Lady Hale (Deputy President), Lord Wilson, Lord Reed, Lord Toulson and Lord Hodge TRACEY KENNEDY

Appellant

against

B

CORDIA (SERVICES) LLP

Respondent

Reparation—Negligence—Breach of statutory duty—Carer slipping and falling on icy pavement when attending elderly client’s home—No special footwear supplied—Whether breach of Personal Protective Equipment at Work Regulations 1992—Whether breach of common law duty—Personal Protective Equipment at Work Regulations 1992 (SI 1992/2966)—Management of Health and Safety at Work Regulations 1999 (SI 1999/3242)

C

Evidence—Expert evidence—Whether admissible Regulation 4(1) of the Personal Protective Equipment at Work Regulations 1992 provides: “Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.”

D

Regulation 6 of the 1992 Regulations requires an employer to ensure that assessment is made to determine whether the personal protective equipment he intends to provide is suitable, this assessment includes: “2. . . (a) an assessment of any risks or risks to health or safety which have not been avoided by other means; (b) the definition of the characteristics which personal protective equipment must have in order to be effective against the risks referred to in sub-para.(a) of this paragraph, taking into account any risks which the equipment itself may create; (c) comparison of the characteristics of the personal protective equipment available with the characteristics referred to in subpara.(b) of this paragraph.”

E

Regulation 8 of the 1992 Regulations provides: “Where an employer or self-employed person is required, by virtue of reg.4, to ensure personal protective equipment is provided, he shall also ensure that appropriate accommodation is provided for that personal protective equipment when it is not being used.”

F

Regulation 10 of the 1992 Regulation provides, inter alia: “(1) Every employer shall take all reasonable steps to ensure that any personal protective equipment provided to his employees by virtue of reg.4(1) is properly used. ...

G

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(4) Every employee and self-employed person who has been provided with personal protective equipment by virtue of reg.4 shall take all reasonable steps to ensure that it is returned to the accommodation provided for it after use.”

Regulation 3 of the Management of Health and Safety at Work Regulations 1999 provides, inter alia: “(1) Every employer shall make a suitable and sufficient assessment of— (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work;. . . for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions. . . .”

The appellant had been employed as a carer by the respondents and was required to visit an elderly lady who was terminally ill and incontinent to provide her with palliative and personal care. She had travelled to the patient’s house after visiting another client.There had been very severe wintry conditions in central Scotland for a number of weeks prior to that date, with snow and ice lying on the ground. The appellant was driven to the house by a colleague, who parked her car close to a public footpath leading to the house. The footpath was on a slope and was covered in fresh snow overlying ice that had not been gritted or salted. She was wearing flat boots with ridged soles but after taking a few steps along the footpath she slipped and fell to the ground injuring her wrist.

Several accidents or incidents had been reported to the respondent during the years leading to the date of the appellant’s accident. A risk assessment carried out by the respondent included risks involved in travelling to and from work locations; the risk was assessed as “tolerable” in terms of the British standard which implied that it had been reduced to the lowest level that was reasonably practicable and that no additional controls were required. A hazard awareness booklet had been provided by the respondents which included a requirement that staff should ensure that safe adequate footwear was worn but what constituted safe adequate footwear was left to the judgment of the individual employee.

Expert evidence was led on behalf of the pursuer from a consulting engineer whose qualifications included a degree in engineering and a diploma in safety and hygiene. His report concluded that attachments sold under the trade name Yaktrax reduced the risk of slipping on snow or ice and respondent could have investigated the adequacy of these devices and provided the appellant with them. This evidence was objected to on the basis that the expert did not have any relevant special skill experience or learning in order to give that evidence but the objection was repelled in the Outer House.

Evidence was also led on behalf of the respondent from their health and safety manager who had prepared the risk assessment and she maintained that the advice to wear safe and adequate footwear reduced the risk so far as was reasonably practicable.

The Lord Ordinary concluded that in the light of the expert evidence about the availability of relatively simple precautions to reduce the risk and the absence of any consideration of personal protective equipment (PPE) by the respondents it could not be said that the risk had been adequately controlled by other means which were equally or more effective. He also found the respondent liable at common law.

In the Inner House the decision was reversed for five reasons. First, the expert should not have been allowed to give the evidence he gave because the Lord Ordinary was fully equipped to resolve the issue without instruction or advice by an expert. Secondly, a failure to comply with the Management Regulations could not be a cause of injury. Thirdly, reg.4(1) of the PPE

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Regulations did not apply to the circumstances of the accident. Fourthly, the Lord Ordinary had failed to address the necessary basic questions in relation to the common law case. And fifthly, the Lord Ordinary was not entitled to find the respondents liable because he had made no finding that attachments “would necessarily” have prevented the appellant’s fall.

Held (1) that there were four considerations which governed the admissibility of skilled evidence, namely: (i) whether the proposed skilled evidence would assist the court in its task; (ii) whether the witness had the necessary knowledge and experience; (iii) whether the witness was impartial in his or her presentation and assessment of the evidence; and (iv) whether there was a reliable body of evidence or experience to underpin the expert’s evidence (para.44); (2) that Creswell J’s guidance in the case of The Ikarian Reefer (No.2) [1993] 2 Lloyds Rep. 68 had to be applied in the Scottish courts in civil cases, making such allowance as was necessary to accommodate different procedures and it was implicit that the seventh duty applied only in relation to items which the opposite party did not already have access (para.53); (3) that the Extra Division erred in treating much of the factual material in the expert’s report as inadmissible on the basis that it was not skilled evidence that assisted the court and they also erred in excluding his evidence on how he would have carried out the risk assessment and it might on occasion be expedient to have instructed a witness with general health and safety experience to have given skilled evidence on a specific question of health and safety practice which he or she might not have encountered in the past and such a witness might have to conduct research into how the particular risk might have been reduced or avoided and whether or not the witness had sufficient experience and knowledge to give skilled evidence was a matter which could have been explored either through case management or in cross-examination (paras 70, 71); (4) that the most logical way to have approached the question as to the adequacy of the precautions taken by an employer was through a consideration of the suitability and sufficiency of the risk assessment (para.89); (5) that in relation to whether there was a sufficient evaluation of the risk and of the necessary measures, the Lord Ordinary’s conclusion was based on findings which he had been entitled to make on the evidence and on a proper understanding of the law and in these circumstances the Lord Ordinary was entitled to conclude that there had been a breach of reg.3(1) (para.92); (6) that an employee was “at work” for the purposes of both the Management Regulations and the PPE Regulations throughout the time when she was in the course of her employment (para.100); and (7) that the context in which the common law of employer’s liability had to be applied had changed since 1909 and the employer’s duty was no longer confined to taking such precautions as were commonly taken or such other precautions as were so obviously wanted that it would have been folly in anyone to neglect to provide them and a negligent omission could result from a failure to seek out knowledge of risks which were not in themselves obvious and a less outdated formulation of the employer’s common law duty of care could be found in Baker v Quantum Clothing Group Ltd (paras 110, 111) and appeal allowed.

A

B

C

D

E

F

Cases referred to: Allison v London Underground Ltd [2008] EWCA Civ 71; [2008] I.C.R. 719; [2008] I.R.L.R. 440 Baker v Quantum Clothing Group Ltd [2011] UKSC 17; [2011] 1 W.L.R. 1003; [2011] 4 All E.R. 223 Brown v Rolls Royce Ltd, 1960 S.C. (H.L.) 22; 1960 S.L.T. 119 Caparo Industries plc v Dickman [1990] 2 A.C. 605; [1990] 2 W.L.R. 358; [1990] 1 All E.R. 568

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Cavanagh v Ulster Weaving Co Ltd [1960] A.C. 145; [1959] 3 W.L.R. 262; [1959] 2 All E.R. 745 Commission of the European Communities v Italian Republic (Case C–49/00) [2001] ECR I–8575 Coopers (South Africa) (Pty) Ltd v Deutsche Gessellschaft für Schädlingsbekampfung mbH, 1976 (3) S.A. 352 Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 U.S. 579 Davie v Magistrates of Edinburgh, 1953 S.C. 34; 1953 S.L.T. 54 Dingley v Chief Constable of Strathclyde Police, 1998 S.C. 548 Drake v Harbour [2008] EWCA Civ 25 Elf Caledonia Ltd v London Bridge Engineering Ltd, Lord Caplan, 2 September 1997, unreported Field v Leeds City Council [2000] 1 E.G.L.R. 54 Fytche v Wincanton Logistics plc [2004] UKHL 31; [2004] 4 All E.R. 221; [2004] I.C.R. 957 Gibson v Pollock (1848) 11 D. 343 Hawkes v Southwark London Borough Council, 20 February 1998, unreported Henser-Leather v Securicor Cash Services Ltd [2002] EWCA Civ 816 Hide v The Steeplechase Co (Cheltenham) Ltd [2013] EWCA Civ 545; [2014] I.C.R. 326 Ikarian Reefer (No.2), The [1993] 2 Lloyd’s Rep. 68 M v Kennedy, (IH) 1993 S.C.L.R. 69; 1993 S.C. 115 McTear v Imperial Tobacco Ltd (2005) 2 S.C. 1 Main v McAndrew Wormald Ltd, 1988 S.L.T. 141 Mearns v Smedvig Ltd, 1999 S.C. 243; 1999 S.L.T. 585 Midland Bank Trust Co Ltd v Hett Stubbs & Kemp [1979] Ch. 384; [1978] 3 W.L.R. 167; [1978] 3 All E.R. 571 Morris v West Hartlepool Steam Navigation Co Ltd [1956] A.C. 552; [1956] 1 W.L.R. 177; [1956] 1 All E.R. 38 Morton v William Dixon Ltd, 1909 S.C. 807; (1909) 1 S.L.T. 346 Myers, Brangman and Cox v The Queen [2015] UKPC 40; [2015] 3 W.L.R. 1145 Paris v Stepney Borough Council [1951] A.C. 367; [1951] 1 All E.R. 42 Pora v The Queen [2015] UKPC 9; [2016] I Cr. App. 3 R v Bonython (1984) 38 SASR 45 R v Gilfoyle [2001] 2 Cr. App. R 5 R v Turner [1975] Q.B. 834; [1975] 2 W.L.R. 56; [1975] 1 All E.R. 7 Robb v Salamis (M & I) Ltd [2006] UKHL 56; (H.L.) 2007 S.C.L.R. 176; 2007 S.C. (H.L.) 71; 2007 S.L.T. 158 Rogers v George Blair & Co Ltd (1971) 11 KIR 391 Taylor v Chief Constable of Hampshire Police [2013] EWCA Civ 496; [2013] I.C.R. 1150 Threlfall v Kingston-upon Hull City Council [2010] EWCA Civ 1147; [2011] I.C.R. 209 Toth v Jarman [2006] EWCA Civ 1028; [2006] 4 All E.R. 1276 United Kingdom v Council of the European Union (Case C–84/94) [1996] ECR I–5755 Wilson v HM Advocate [2009] HCJAC 58; 2009 S.C.C.R. 666; 2009 J.C. 336 Young v HM Advocate [2013] HCJAC 145; 2014 S.C.C.R. 78; 2014 S.L.T. 21.

On 10 February the following judgment was issued. The full circumstances of the case and the arguments of counsel are to be found in the judgment of Lord Reed and Lord Hodge with whom Lady Hale, Lord Wilson and Lord Toulson agreed.

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LORD REED AND LORD HODGE 1. This appeal from the Court of Session arises from an accident of an everyday kind, but raises a number of issues of practical importance relating to the Personal Protective Equipment at Work Regulations 1992 (the PPE Regulations) (SI 1992/2966) and the Management of Health and Safety at Work Regulations 1999 (the Management Regulations) (SI 1999/3242), to employers’ liability at common law, and to expert evidence in this field.

The accident

2. The appellant, Miss Kennedy, was employed by the respondents, Cordia (Services) LLP (Cordia), as a home carer in Glasgow. Cordia are wholly owned by Glasgow City Council, and provide home care services on its behalf.

Those services were previously provided by the council itself. Miss Kennedy’s principal duty was to visit individuals in their homes and to provide them with personal care.

3. At about 8 pm on 18 December 2010 Miss Kennedy was required to visit an elderly lady, Mrs Craig, who was terminally ill and incontinent, at her home in order to provide her with palliative and personal care. The visit was one of a series of visits carried out by Miss Kennedy during her shift. She travelled to Mrs Craig’s house after visiting another client.

4. There had been severe wintry conditions in central Scotland for a number of weeks prior to that date, with snow and ice lying on the ground.

Miss Kennedy was driven to the house by a colleague, who parked her car close to a public footpath leading to the house. The footpath was on a slope, and was covered in fresh snow overlying ice. It had not been gritted or salted. Miss Kennedy was wearing flat boots with ridged soles. After taking a few steps along the footpath, she slipped and fell to the ground, injuring her wrist.

A

B

C

D

Risk assessments and precautions

5. Cordia were aware of the risk that their home carers might slip and fall on snow and ice when travelling to and from clients’ houses in winter. On average, four such accidents had been reported to them, or to their predecessors the council, during each year since 2005. During 2010 there were 16 such accidents. Cordia were also aware of the snowy and icy conditions on the night in question, as those conditions had persisted for weeks.

6. In 2005 the council carried out a risk assessment in relation to home care services and client care. It covered risks involved in “travelling to and from work locations”. The assessment noted the risk of sprains, cuts, broken limbs, fractures and head injuries from slips and falls in inclement weather. The current preventive and protective measures were noted as being the provision of a hazard awareness booklet and instruction on appropriate footwear. The risk was assessed, using the risk rating scale appended to the guidance document “Guide to Occupational Health and Safety Management Systems” published by the British Standards Institution (BS 8800:2004). The resultant assessment was that the risk was “tolerable”, on the basis that the severity of harm, and its likelihood, were respectively categorised under the scale as “harmful” and “highly unlikely”. The assessment of the risk as “tolerable”, in terms of the British Standard, implied that it had been reduced to the lowest level that was reasonably practicable, and that no additional controls were required.

7. A further risk assessment was carried out by Cordia in July 2010. It did not expressly consider the risk of injury from slips and falls in inclement

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weather, but was otherwise in similar terms to the 2005 assessment. Neither assessment considered the possible provision of personal protective equipment (PPE), such as non-slip attachments for footwear.

8. Miss Kennedy underwent an induction programme of a kind which usually included a discussion of slips and falls on ice in winter, and the importance of wearing appropriate footwear. A hazard awareness booklet provided to employees stated that extra care should be taken when walking to and from work locations in inclement weather, and that staff should ensure that safe adequate footwear was worn.What constituted safe adequate footwear was left to the judgment of the individual employee.

The evidence of the expert witnesses

C

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5104.indd 208

9. Evidence was led on behalf of Miss Kennedy, under objection, from a consulting engineer, Mr Lenford Greasly. His qualifications included a degree in engineering and a diploma in safety and hygiene. He was a chartered member of the Institute of Safety and Health, and an associate member of the UK Slip Resistance Group. He was a former member of the Health and Safety Executive [HSE], in which he had worked as an Inspector of Factories. He had held senior management positions in industry, in areas including health and safety. He had worked for many years as an engineering consultant advising companies on health and safety, including carrying out slip testing and advising on the adequacy of risk assessments. He had carried out or revised between 50 and 100 risk assessments.

10. In a report which he had prepared, Mr Greasly referred to the relevant legislation and to advice published by the HSE, including advice concerning reducing the risk of slips on ice and snow by providing anti-slip footwear. In that regard, there was advice to consider finding out what footwear other similar businesses were using and whether it worked. Mr Greasly’s report described various types of anti-slip attachment which had been available for some years at a modest cost, and which were said to increase grip in icy conditions. He cited several published papers reporting on research into the slipperiness of footwear on icy and other surfaces, and the effect on slipresistance of using different types of sole and different types of attachment.

These included an American study which showed a reduction in falls of 90 per cent among elderly people who wore attachments sold under the trade name Yaktrax. He described his own experience of using Yaktrax, and said that he had found them helpful in increasing traction in icy conditions. His report also included evidence that a number of employers whose staff had to work outdoors in snow and ice had provided them with anti-slip attachments. They included Royal Mail and a number of local authorities. He concluded that such attachments reduced the risk of slipping on snow or ice, and that Cordia could have investigated the adequacy of such devices and provided Miss Kennedy with them. At para.4.9, he stated: “(Cordia) made a risk assessment but the identified preventative measures relied exclusively on the employee, via information and instruction, when dealing with inclement conditions.”

11. In a supplementary report, Mr Greasly noted the information which had been provided by Cordia about the number of home carers who slipped and fell on snow and ice each year. In the light of that information, he referred to the PPE Regulations, stating at paras 3.11–3.12: “3.11. The Personal Protective Equipment at Work Regulations 1992 address the supply and use of PPE. At reg.4(1) it states, ‘Every employer

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shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.’

3.12. The risk of slipping on ice and snow was not controlled by other means, the controls that (Cordia) indicate were undertaken were informative; the risk of slipping on slippery surfaces (as identified by (Cordia)) remained.”

12. Mr Greasly also referred to further published research. He concluded that the research showed that the use of appropriate anti-slip devices would help to avoid slips and falls. He expressed the opinion that, had Miss Kennedy worn such devices then, on the balance of probabilities, the risk of her falling on ice and snow would have been reduced and might have been eliminated. He also included information that at least six Scottish local authorities (including one to which he had referred in his earlier report) provided their home carers with anti-slip attachments, although in two cases the practice had been introduced after 2010.

13. Mr Greasly expanded upon his reports in his oral evidence. He explained how, in engineering terms, anti-slip attachments reduced the risk of slipping.

Asked whether the wearing of such attachments would have any effect in the conditions experienced by Miss Kennedy, he replied that it ought to, as it would increase grip. In cross-examination, he is recorded as having assented to the suggestion that he could not say whether Yaktrax would have made any difference to Miss Kennedy on the occasion in question. In re-examination, however, he expressed puzzlement at that answer, and said that it was likely to have reduced and maybe eliminated the risk. More generally, he accepted that different types of device were more or less effective in different conditions.

The provision of such equipment would however reduce the risk. It was for the employer to determine the particular device which was most suitable.

14. Mr Greasly was critical of the omission from the 2010 risk assessment of a consideration of slips and falls in inclement weather. He was also critical of the categorisation of the risk of slipping and falling as “tolerable”.

15. Evidence was led on behalf of Cordia from their health and safety manager, Miss Rodger, who had prepared the 2005 risk assessment on the basis of the British Standard and had been responsible for the preparation of its 2010 successor. She was questioned, in particular, about the categorisation of the risk of slipping and falling as “tolerable” rather than “substantial”. In terms of the British Standard, the latter categorisation would have led to the conclusion that work should not be started until the risk had been reduced, and that considerable resources might have to be allocated to reduce the risk.

16. Miss Rodger accepted that a slip could produce injuries which were properly categorised as “harmful”, such as fractures and head injuries, and also accepted, in the light of the annual statistics referred to in para.5 above, that it was “a dead cert” that someone was going to fall on snow and ice. She accepted that the risk involved in the activity being carried out by Miss Kennedy on the occasion in question was therefore “substantial”, in the absence of measures to control the risk. She also accepted that it would be apparent to any employer, applying his mind to this activity on the day in question, that there was a substantial risk of injury, in the absence of controls.

She nevertheless maintained that the advice to wear safe and adequate footwear reduced the risk as far as was reasonably practicable. She confirmed that Cordia had not given any consideration to the provision of footwear or attachments.

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The proceedings in the Outer House

17. Miss Kennedy commenced proceedings in the Court of Session, and the case proceeded to a proof restricted to the issue of liability. The Lord Ordinary, Lord McEwan, found Cordia liable under the PPE Regulations, the Management Regulations, and the common law: [2013] CSOH 130.

18.The Lord Ordinary accepted Miss Kennedy’s evidence, including her evidence that, if provided with attachments for her boots, she would have worn them on the night in question. He commented that it was of some importance that she and her colleague were under an urgent and important duty to an elderly sick lady.

19. He also accepted the evidence of Mr Greasly, which he regarded as consistent: in particular, he did not consider that what he said in crossexamination had departed from his evidence in chief or in re-examination. His summary of Mr Greasly’s evidence included the following passages: “16. He then looked at the risk assessments. Agreeing in general with the later evidence of Miss Rodger, he said account had to be taken of controls to overcome hazards before any rating could be arrived at. However, he said that in his opinion the measures specified did not reduce the risk. PPE should have been provided. He was critical of the omission of ‘inclement weather’ in (the 2010 risk assessment). Such weather did not cease to be a hazard and simply to rate the risk as ‘tolerable’ did not take account of changes in the risk when seriously adverse weather could and did occur that winter. This risk could be eliminated altogether by not going to the house, but accepting the need to go, the employer (his emphasis) should choose and supply the correct footwear which was available at that time. That was not done. ...

20. Being asked again about research papers he said some were surveys and some were lists. He agreed that icy and snowy surfaces varied and shoe attachments varied in their reaction to these. He described in detail how Yaktrax performed and how he had used his own set for 18 months in snow and ice. He said that they reduced the risk although there was no one answer to the problem. Everyone still had to take care. Had he done a risk assessment for Miss Kennedy’s job he would have assessed the risk as likely and the severity as harmful. It was for the employer to find out what PPE was best and in his opinion they should have provided Yaktrax or some other type of fitting.

21. . . . under reference to the (British Standard), he said that the assessment of the risk should have been ‘substantial’. Slipping and falling could give a variety of serious injuries. What the employer had to do was reduce or eliminate the risk. That would have been done if Yaktrax had been provided.”

20. The Lord Ordinary repelled an objection which had been made to Mr Greasly’s evidence on the ground that he did not have any relevant special skill, experience or learning. In that regard, the Lord Ordinary had earlier commented that Mr Greasly had detailed knowledge of the correct approach to compiling risk assessments, and was justified in the conclusion he drew from the published papers. In dealing with the objection, he stated at para.43: “His (Mr Greasly’s) many general qualifications are listed in his two reports. . .He has given evidence on many occasions. He is a member of a group with particular interests in slipping at work. He demonstrated a detailed knowledge of a number of international papers on the subject of slipping and personal protective equipment relating to footwear. The real issue is whether he was in a position to provide expertise in areas of health and safety at work which would not be within the knowledge of the court.

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In my view he clearly has the qualifications and gives such evidence here.

He will be treated therefore as an expert witness.”

21. Having dealt with objections to the evidence, the Lord Ordinary then stated his findings on the evidence. In the light of the evidence of Mr Greasly, he made the following findings: “47. The following emerges. He had been to the locus. The conditions required some form of shoe ‘add-on’. Yaktrax was but one model available on the market at the time (it should be noted that Miss Kennedy’s case does not depend solely on Yaktrax. She said she would have worn an ‘addon’ if she had been given one).

48.Importantly I accept his criticism of the risk assessments given in his evidence (see para.4.9 of (the first report, quoted in para.10 above)) and he was clear in his evidence and reports that reg.4 (of the PPE Regulations) was also breached (see eg, paras 3.11 and 3.12 in (the supplementary report, quoted in para.11 above)). He spoke to the availability of a number of devices to fit to footwear at the relevant time. It is not necessary to dwell at any length on the various studies or indeed to express my own view of them. In my opinion they present a consistent picture with the American one being particularly helpful.”

22. The Lord Ordinary was critical of the reliability of Miss Rodger’s evidence.

He stated that her evidence lacked a clear explanation of her conclusion that the risk of home carers slipping was tolerable rather than substantial. He commented that her failure to consider the provision of PPE had resulted in the breach of duty in all areas.

23. Considering first the Management Regulations, on the basis that a risk assessment was logically anterior to the taking of safety precautions, the Lord Ordinary concluded that both assessments had been unsatisfactory. Given Miss Rodger’s acceptance that a fall on ice was likely and that any resultant injury could be harmful, the risk should have been assessed as substantial rather than tolerable. The precautions in place, in the form of advice to wear safe and adequate footwear, were inadequate. There was no specific advice as to what might constitute such footwear, and no checking or assessment of what was worn. In those circumstances, the risk assessment had not been “suitable and sufficient”, as required by reg.3(1).

24. Considering next the PPE Regulations, the Lord Ordinary concluded that in the light of Mr Greasly’s evidence about the availability of relatively simple precautions to reduce the risk, and the absence of any consideration of PPE by Cordia, it could not be said that the risk had been adequately controlled by other means which were equally or more effective. There was therefore a breach of reg.4(1).

25. Considering next the common law, the Lord Ordinary stated: “72. For the same reasons I find (Cordia) also liable at common law. In the face of an obvious and continuing risk they provided no safe footwear.

There is no evidence they checked what was being worn. There was no evidence of any system of working or reporting in when staff had to go out in the extreme weather and walk on snow and ice.”

A

B

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D

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F

The proceedings in the Inner House

26. The Lord Ordinary’s decision was reversed by an Extra Division of the Inner House (Lady Smith, Lord Brodie and Lord Clarke): [2014] CSIH 76; 2015 S.C. 154. The Extra Division considered that the Lord Ordinary had erred in five respects.

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27. First, in relation to Mr Greasly’s evidence, Lord Brodie, giving the leading judgment, stated that he should not have been allowed to give the evidence summarised by the Lord Ordinary at paras 16, 20, 21, 47 and 48 of his opinion, quoted at paras 19 and 21 above. The Lord Ordinary “abdicated his role as decision-maker”. The dispute that had to be resolved was “something. . .the Lord Ordinary was fully equipped to do without any instruction or advice; it was squarely within his province as judicial decisionmaker. No additional expertise was required”. Health and safety was not an area of expertise, since it was not a recognised body of science or experience.

The other members of the court agreed. Lord Clarke commented that the Lord Ordinary’s approach was simply to accept that the evidence of Mr Greasly determined the question for him. Paragraph 43 of the Lord Ordinary’s opinion (quoted at para.20 above) demonstrated a shifting of his responsibility for deciding the issues before him to Mr Greasly.

28. Secondly, a failure to comply with the Management Regulations could not be a direct cause of injury. The regulations did not impose any duty to take precautions. Lady Smith considered that Cordia’s risk assessment had in any event complied with the regulations, but did not explain her reasons for reaching that conclusion. The other members of the Extra Division did not express any opinion on the question.

29. Thirdly, reg.4(1) of the PPE Regulations did not apply to the circumstances of the accident. The regulations were concerned with risks to which workers were exposed which were created or increased by the nature of their work. But the risk to which Miss Kennedy was exposed was not of that kind. This point was explained most clearly by Lord Clarke. Like Lord Brodie and Lady Smith, he construed the regulations as being concerned with risks caused by the nature of the task performed by the employee. He regarded that task, in the case of Miss Kennedy, as being confined to the administration of care to her clients, and not as encompassing her journeys to their homes. On that basis, he considered that the carrying out of Miss Kennedy’s duties as a home carer did not create the risk of her slipping somewhere en route to carrying out those duties because of ice or snow on that route. The regulations were in his view designed to deal with risks in circumstances where the employer had a degree of control over the employee, the place of work and the performance of the task which had to be carried out.

The risk of Miss Kennedy’s slipping on ice and snow, on the other hand, was not materially different from that to which any member of the public was exposed when making their way around Glasgow for whatever reason at the relevant time.

30. In any event, as it appeared to the Extra Division, on the Lord Ordinary’s findings the risk of slipping was adequately controlled. There was little evidence as to the likely efficacy of unspecified attachments over the range of underfoot conditions that Miss Kennedy could have been expected to encounter. It could not even be said on the evidence that wearing attachments would have made any material difference on the pathway on which Miss Kennedy fell.

31. The Extra Division were also critical of the Lord Ordinary’s statement that the direction of the law was to level safety upwards. Lord Brodie remarked that the Lord Ordinary had cited no authority for his observation, while Lord Clarke asked whether the Lord Ordinary’s words were meant to reflect an aspect of public policy or some supposed legal principle, and commented that they betrayed a failure to recognise that the law did not impose on an employer a generalised duty to ensure the safety of his employees.

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32.Fourthly, in relation to the common law case, it was said that the Lord Ordinary had failed to address the necessary basic questions identified by Lord President Dunedin in Morton v William Dixon Ltd, p.809: “Where the negligence of the employer consists of what I may call a fault of omission, I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either—to shew that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or—to shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.”

A

B It could not be said that either requirement of Lord Dunedin’s formula was satisfied. The Lord Ordinary had also failed to consider whether it would be fair, just and reasonable to find there to be a duty of care of the scope contended for, in accordance with Caparo Industries plc v Dickman, pp.617–618. Had he done so, he could not have failed to reject the contention that Cordia were under a common law duty to determine what their competent adult employees should wear on their feet when negotiating the streets of Glasgow.

33. Fifthly, it was said that the Lord Ordinary was not entitled to find Cordia liable, in any event, because he had made no finding that the wearing of attachments “would necessarily” have prevented Miss Kennedy’s fall. He had, it was said, not taken a view on the passages in the cross-examination of Mr Greasly in which he conceded that he could not say that Yaktrax would have made any difference.

C

Mr Greasly’s evidence

34. We shall begin by considering the issues arising in relation to Mr Greasly’s evidence. The use of expert witnesses, who in Scottish practice have traditionally been described as skilled witnesses, can provide significant benefits to the court in determining legal disputes. There is a degree of commonality of approach between jurisdictions which adopt similar methods of fact-finding. Thus Scots law has drawn on the experience of other jurisdictions both as to the admissibility of skilled evidence and in relation to the duties of expert witnesses.

35. There are also concerns about the use of skilled witnesses, some of which may have lain behind the Extra Division’s approach in this case. Walker and Walker, The Law of Evidence in Scotland (4th edn, 2015), para.16.3.11, record concerns about the excessive use of experts in litigation in other jurisdictions, and refer to Lord Cullen’s proposal to restrict the number of skilled witnesses in his Review of Outer House Business in 1995. More recently, the Law Commission of England and Wales in its report, ‘Expert evidence in criminal proceedings in England and Wales’, Law Com. No.325 (2011), has recorded concerns: (i) that an expert witness might have an excessive influence on lay fact finders; (ii) whether in criminal cases the defence will have the resources to test the underlying basis of an expert’s evidence; and (iii) that experts may not achieve the impartiality for which their role calls. In our view, judges who frequently decide civil cases should through their experience be less likely than juries to be unduly influenced by skilled witnesses, but an advocate in a civil case may face difficulties in testing the evidence of an expert unless assisted by expert advice. The need to regulate such evidence remains.

36. In this case, the Extra Division’s principal concerns about Mr Greasly’s evidence were that he had expressed opinions on what Cordia should have done that involved questions of law, which it was the task of the court to

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decide and that, in any event, most of his evidence was unnecessary: see para.27 above. Lord Clarke in his concurring opinion expressed concerns, more generally, about the unnecessary proliferation of allegedly expert reports in personal injury cases. The Extra Division articulated their more general concern in their finding (in para.4 of Lady Smith’s opinion, paras 15 and 16 of Lord Brodie’s opinion and para.40 of Lord Clarke’s opinion) that the health and safety practice of employers could not be the subject-matter of expert evidence, either because it was a legal question within the knowledge of the court or because it was not a recognised body of science or experience, which was suitably acknowledged as being useful and reliable, and which could properly form the basis of opinions capable of being subjected to forensic evaluation. Counsel for Cordia conceded at the outset of this appeal that so general an assertion was not correct and accepted that health and safety practice could properly be the subject of expert evidence. We think that that concession was correctly made.

37. Before expressing our views on Mr Greasly’s evidence in this appeal, we look at expert evidence more generally to provide the context for our conclusions. The case law on the Scots law of evidence to which counsel referred included both civil and criminal cases. We refer to both in this judgment but are mindful that the Scots law of criminal evidence, including expert evidence in criminal trials, lies within the competence of the High Court of Justiciary and not this court. In this judgment therefore the criminal cases only provide context for our consideration of the law of evidence in civil cases.

The evidence of skilled witnesses

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38. In our view four matters fall to be addressed in the use of expert evidence.

They are: (i) the admissibility of such evidence; (ii) the responsibility of a party’s legal team to make sure that the expert keeps to his or her role of giving the court useful information; (iii) the court’s policing of the performance of the expert’s duties; and (iv) economy in litigation. The first is the most directly relevant in this appeal. But the others also arise out of either the parties’ submissions or the Extra Division’s concerns and we address them briefly. (i) Admissibility

39. Skilled witnesses, unlike other witnesses, can give evidence of their opinions to assist the court. This gives rise to threshold questions of the admissibility of expert evidence. An example of opinion evidence is whether Miss Kennedy would have been less likely to fall if she had been wearing antislip attachments on her footwear.

40. Experts can and often do give evidence of fact as well as opinion evidence. A skilled witness, like any non-expert witness, can give evidence of what he or she has observed if it is relevant to a fact in issue. An example of such evidence in this case is Mr Greasly’s evidence of the slope of the pavement on which Miss Kennedy lost her footing. There are no special rules governing the admissibility of such factual evidence from a skilled witness.

41. Unlike other witnesses, a skilled witness may also give evidence based on his or her knowledge and experience of a subject-matter, drawing on the work of others, such as the findings of published research or the pooled knowledge of a team of people with whom he or she works. Such evidence also gives rise to threshold questions of admissibility, and the special rules that govern the admissibility of expert opinion evidence also cover such expert evidence of fact. There are many examples of skilled witnesses giving evidence

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of fact of that nature. Thus Dickson on Evidence (Grierson’s edn, 1887), s.397 referred to Gibson v Pollock, a case in which the court admitted evidence of practice in dog coursing to determine whether the owner or nominator of a dog was entitled to a prize on its success. Similarly, when an engineer describes how a machine is configured and works or how a motorway is built, he is giving skilled evidence of factual matters, in which he or she draws on knowledge that is not derived solely from personal observation or its equivalent.

An expert in the social and political conditions in a foreign country who gives evidence to an immigration judge also gives skilled evidence of fact.

42. It is common in Scottish criminal trials for the misuse of drugs for the Crown to adduce the evidence of a policeman who has the experience and knowledge to describe the quantities of drugs that people tend to keep for personal use rather than for supply to others. Recently, in Myers, Brangman and Cox v The Queen, the Judicial Committee of the Privy Council approved of the use of police officers, who had special training and considerable experience of the practices of criminal gangs, to give evidence on the culture of gangs, their places of association and the signs that gang members used to associate themselves with particular gangs. In giving such factual evidence a skilled witness can draw on the general body of knowledge and understanding in which he is skilled, including the work and literature of others. But Lord Hughes, in delivering the advice of the board at para.58, warned that “care must be taken that simple, and not necessarily balanced, anecdotal evidence is not permitted to assume the robe of expertise”. To avoid this, the skilled witness must set out his qualifications, by training and experience, to give expert evidence and also say from where he has obtained information, if it is not based on his own observations and experience.

43. Counsel agreed that the South Australian case of R v Bonython gave relevant guidance on admissibility of expert opinion evidence. We agree. In that case King CJ at pp.46–47 stated: “Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject-matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject-matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject-matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.”

44. In Bonython the court was addressing opinion evidence. As we have said, a skilled person can give expert factual evidence either by itself or in combination with opinion evidence. There are in our view four considerations which govern the admissibility of skilled evidence: (i) whether the proposed skilled evidence will assist the court in its task; (ii) whether the witness has the necessary knowledge and experience; (iii) whether the witness is impartial in his or her presentation and assessment of the evidence; and

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(iv) whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.

All four considerations apply to opinion evidence, although, as we state below, when the first consideration is applied to opinion evidence the threshold is the necessity of such evidence. The four considerations also apply to skilled evidence of fact, where the skilled witness draws on the knowledge and experience of others rather than or in addition to personal observation or its equivalent. We examine each consideration in turn.

Assisting the court

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45. It is for the court to decide whether expert evidence is needed, when the admissibility of that evidence is challenged. In R v Turner, a case which concerned the admissibility of opinion evidence, which Professor Davidson cites in his textbook on Evidence (2007) at para.11.04, Lawton LJ stated at p.841: “If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.” In Wilson v HM Advocate, which also concerned opinion evidence, the High Court of Justiciary, in an opinion delivered by Lord Wheatley, stated the test thus (at para.58): “[T]he subject-matter under discussion must be necessary for the proper resolution of the dispute, and be such that a judge or jury without instruction or advice in the particular area of knowledge or experience would be unable to reach a sound conclusion without the help of a witness who had such specialised knowledge or experience.”

46. Most of the Scottish case law on, and academic discussion of, expert evidence has focused on opinion evidence to the exclusion of skilled evidence of fact. In our view, the test for the admissibility of the latter form of evidence cannot be strict necessity as, otherwise, the court could be deprived of the benefit of a skilled witness who collates and presents to the court in an efficient manner the knowledge of others in his or her field of expertise. There may be circumstances in which a court could determine a fact in issue without an expert collation of relevant facts if the parties called many factual witnesses at great expense and thus a strict necessity test would not be met. In Daubert v Merrell Dow Pharmaceuticals Inc, the US Supreme Court referred to r.702 of the Federal Rules of Evidence, which in our view is consistent with the approach of Scots law in relation to skilled evidence of fact. The rule, which Blackmun J quoted at p.588, states: “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

47. The advantage of the formula in this rule is that it avoids an over-rigid interpretation of necessity, where a skilled witness is put forward to present relevant factual evidence in an efficient manner rather than to give an opinion explaining the factual evidence of others. If skilled evidence of fact would be likely to assist the efficient determination of the case, the judge should admit it.

48. An expert must explain the basis of his or her evidence when it is not personal observation or sensation; mere assertion or “bare ipse dixit” carries little weight, as the Lord President (Cooper) famously stated in Davie v Magistrates of Edinburgh, p.40. If anything, the suggestion that an unsubstantiated

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ipse dixit carries little weight is understated; in our view such evidence is worthless. Wessels JA stated the matter well in the Supreme Court of South Africa (Appellate Division) in Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH, p.371: “[A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.”

As Lord Prosser pithily stated in Dingley v Chief Constable, Strathclyde Police, p.604: “As with judicial or other opinions, what carries weight is the reasoning, not the conclusion.”

49. In Davie the Lord President at p.40 observed that expert witnesses cannot usurp the functions of the jury or judge sitting as a jury. Recently, in Pora v The Queen, para.24, the Judicial Committee of the Privy Council in an appeal from New Zealand, stated: “It is the duty of an expert witness to provide material on which a court can form its own conclusions on relevant issues. On occasions that may involve the witness expressing an opinion about whether, for instance, an individual suffered from a particular condition or vulnerability. The expert witness should be careful to recognise, however, the need to avoid supplanting the court’s role as the ultimate decision-maker on matters that are central to the outcome of the case.”

Thus, while on occasion in order to avoid elusive language the skilled witness may have to express his or her views in a way that addresses the ultimate issue before the court, expert assistance does not extend to supplanting the court as the decision-maker. The fact-finding judge cannot delegate the decisionmaking role to the expert.

A

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D

The witness’s knowledge and expertise

50. The skilled witness must demonstrate to the court that he or she has relevant knowledge and experience to give either factual evidence, which is not based exclusively on personal observation or sensation, or opinion evidence.Where the skilled witness establishes such knowledge and experience, he or she can draw on the general body of knowledge and understanding of the relevant expertise: Myers, Brangman and Cox,para.63.

E

Impartiality and other duties

51.If a party proffers an expert report which on its face does not comply with the recognised duties of a skilled witness to be independent and impartial, the court may exclude the evidence as inadmissible: Toth v Jarman, paras 100–102.

In Field v Leeds City Council, the Court of Appeal upheld the decision of a district judge, who, having ordered the council to provide an independent surveyor’s report, excluded at an interim hearing the evidence of a surveyor whom the council proposed to lead in evidence on the ground that his impartiality had not been demonstrated. It is unlikely that the court could make such a prior ruling on admissibility in those Scottish procedures in which there is as yet no judicial case management. But the requirement of independence and impartiality is in our view one of admissibility rather than merely the weight of the evidence.

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52. The Scottish courts have adopted the guidance of Cresswell J on an expert’s duties in The Ikarian Reefer(No.2) in both civil and criminal matters: see Lord Caplan in Elf Caledonia Ltd v London Bridge Engineering Ltd, pp.225– 227 and Wilson v HM Advocate, paras 59, 60. We quote Cresswell J’s summary, pp.81–82) omitting only case citations: “The duties and responsibilities of expert witnesses in civil cases include the following: 1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.

3. An expert witness should state the facts or assumption on which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.

6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.

7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.”

53. In Wilson v HM Advocate, paras 59, 60, the High Court of Justiciary quoted the first four duties and added the requirement that an expert witness “should in particular explain why any material relevant to his conclusions is ignored or regarded as unimportant”. In Elf Caledonia Ltd, Lord Caplan quoted Cresswell J’s guidance more fully. In our view, Cresswell J’s guidance should be applied in the Scottish courts in civil cases, making such allowance as is necessary to accommodate different procedures. It is implicit that the seventh duty applies only in relation to items to which the opposite party does not already have access.

Reliable body of knowledge or experience

54. What amounts to a reliable body of knowledge or experience depends on the subject-matter of the proposed skilled evidence. In Davie the question for the court was whether blasting operations in the construction of a sewer had damaged the pursuer’s building and the relevant expertise included civil engineering and mining engineering. In Myers, Brangman and Cox, as we have said, the subject-matter was the activities of criminal gangs; a policeman’s evidence, which was the product of training courses and long-term personal experience as an officer serving with a body of officers who had built up a

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body of learning, was admitted as factual evidence of the practices of such gangs.

55. In many cases where the subject-matter of the proposed expert evidence is within a recognised scientific discipline, it will be easy for the court to be satisfied about the reliability of the relevant body of knowledge. There is more difficulty where the science or body of knowledge is not widely recognised.

Walker and Walker, para.16.3.5 refer to an obiter dictum in Lord Eassie’s opinion in Mearns v Smedvig Ltd in support of their proposition that: “A party seeking to lead a witness with purported knowledge or experience outwith generally recognised fields would need to set up by investigation and evidence not only the qualifications and expertise of the individual skilled witness, but the methodology and validity of that field of knowledge or science.”

56. We agree with that proposition, which is supported in Scotland and in other jurisdictions by the court’s refusal to accept the evidence of an expert whose methodology is not based on any established body of knowledge. Thus in Young v HM Advocate, the High Court refused to admit evidence of “case linkage analysis” because it was the subject of only relatively recent academic research and a methodology which was not yet sufficiently developed that it could be treated as reliable. See also, for example, R v Gilfoyle, in which the English Court of Appeal (Criminal Division) refused to admit expert evidence on “psychological autopsy” for several reasons, including that the expert had not embarked on the exercise in question before and also that there were no criteria by reference to which the court could test the quality of his opinions and no substantial body of academic writing approving his methodology. The court also observed that the psychologist’s views were based on one-sided information and doubted that the assessment of levels of happiness or unhappiness was a task for an expert rather than jurors.

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(ii) Making sure that the expert performs his or her role

57. It falls in the first instance to counsel and solicitors who propose to adduce the evidence of a skilled witness to assess whether the proposed witness has the necessary expertise and whether his or her evidence is otherwise admissible.

It is also their role to make sure that the proposed witness is aware of the duties imposed on an expert witness. The legal team also should disclose to the expert all of the relevant factual material which they intend should contribute to the expert’s evidence in addition to his or her own pre-existing knowledge. That should include not only material which supports their client’s case but also material, of which they are aware, that points in the other direction, viz, the court’s concerns about one-sided information in R v Gilfoyle.

The skilled witness should take into account and disclose in the written report the relevant factual evidence so provided.

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E

(iii) Policing the performance of an expert’s duties

F

58. It is not the normal practice of the Scottish courts to hold preliminary hearings or proofs on the admissibility of the evidence of skilled witnesses.

Considerations of cost and practicability may often make such a course unattractive. Where the court has significant powers of case management, as in certain actions based on clinical negligence or relating to catastrophic injuries (Rules of the Court of Session 1994 as amended (RCS) Ch.42A), commercial actions (RCS Ch.47), and intellectual property actions (RCS Ch.55), a judge can address concerns about the evidence in the report by a

G

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skilled witness at a case management hearing and discuss with counsel how they are to be resolved. Wider opportunities for such case management in personal injury actions are likely to result from the implementation of Lord Gill’s Civil Courts Review.

59. In many cases it may not be possible to iron out all difficulties before the proof. A party may object to part or all of a skilled witness’s evidence at the start and during the course of a proof, as occurred in this case. In the absence of objection, the judge should, when assessing whether and to what extent to give weight to the evidence, test the evidence to ascertain that it complies with the four considerations which we have set out in para.38 above and is otherwise sound. In McTear v Imperial Tobacco Ltd, para.5.17 Lord Nimmo Smith usefully described the judge’s role in these terms: “[I]t is necessary to consider with care, in respect of each of the expert witnesses, to what extent he was aware of and observed his function. I must decide what did or did not lie within his field of expertise, and not have regard to any expression of opinion on a matter which lay outwith that field.

Where published literature was put to a witness, I can only have regard to such of it as lay within his field of expertise, and then only to such passages as were expressly referred to. Above all, the purpose of leading the evidence of any of the expert witnesses should have been to impart to me special knowledge of subject-matter, including published material, lying within the witness’s field of expertise, so as to enable me to form my own judgment about that subject- matter and the conclusions to be drawn from it.”

Lord Brodie referred to this passage in his opinion at para.11. It is not necessary in this appeal to determine how far a court should have regard to published material put to or cited by a skilled witness which is not within his or her core expertise. Much may depend on the nature of the expert’s area of practice, which may or may not involve some working knowledge of related disciplines, and on the centrality of the published material to the matter which the court has to decide: see, for example, Main v McAndrew Wormald Ltd and, on the analogous question of a medical practitioner consulting another specialist, M v Kennedy. (iv) Economy in litigation

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60. In recent years there have been many statements of concern in many jurisdictions about the disproportionate cost of civil litigation. Scotland is no exception. Those concerns include the use of expert witnesses. In the responses to consultation in the Scottish Civil Courts Review some respondents, including the Scottish Legal Aid Board, expressed their concern about the increased reliance on experts in litigation and the consequent cost (Report of the Scottish Civil Courts Review (2009) vol.1, Ch.9, para.64). The latter concern was also discussed in the Taylor Review of Expenses and Funding of Civil Litigation in Scotland (2013), Ch.3, paras 59–95. Cordia in this case challenge what they describe in their written case as “the largely uncontrolled proliferation of experts”.

61. Case management offers a means by which the court can encourage parties to avoid leading evidence on matters which are not contentious, for example by agreeing a statement of fact which explains background matters, which are not the subject of written pleadings, to the court. There may be matters which can readily be agreed, thereby allowing parties’ experts to concentrate on contentious matters. Solicitors with expertise in personal injury actions may use such statements as the basis for agreed evidence in other actions and thereby save expense. Where that is not possible, a court

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which has case management powers may require experts to exchange opinions, confer and prepare a report which identifies matters of agreement and reasons for any continued disagreement. It can also ascertain the scope for joint instruction of a single expert, and (where it possesses the necessary powers) can exclude expert reports and evidence. Courts also possess powers in relation to expenses which can be used to discourage the excessive use of expert evidence. Nothing that we say in this judgment questions the legitimacy of the underlying concern about reducing the expense of litigation.

A

Expert evidence in this case

B

62. With those general comments we turn to Mr Greasly’s evidence in this case. We have summarised his qualifications and his evidence in paras 9–14 above.

63. There were matters in Mr Greasly’s reports to which Cordia did not take exception. Lord Brodie acknowledged that there were matters of fact which were admissible, such as his description of the locus, including his measurements of the gradients, and his evidence of availability on the market of anti-slip attachments to footwear. But there were other factual matters which were admissible because they were relevant and might assist a judge, and against which Cordia did not persist in their challenge in this court. They included: (i) information on the prevention or reduction of risks of tripping and slipping from publications by the Construction Industry Research and Information Association, by the HSE and from the HSE website; (ii) research literature on the effectiveness of different types of footwear and devices to resist slipping and on the circumstances in which people suffer falls; (iii) HSE guidance on the PPE Regulations which provided evidence of good health and safety practice in relation to dangers posed by the weather when people have to work out of doors; and (iv) the practices of named public bodies in providing their employees working out of doors with anti-slip devices.

Cordia maintained their challenge to his evidence of the effect of Yaktrax, based on his own use of them, and his oral explanation of how anti-slip attachments reduced the risk of slipping, which was based on his knowledge of engineering. But these were also factual matters, which he had the experience and qualifications to describe. In our view, the Lord Ordinary did not err in admitting all of this factual evidence.

64. Similarly, it was relevant to the court’s task to hear evidence on health and safety practice in complying with the Management Regulations and the PPE Regulations. The expansion of the statutory duties imposed on employers in the field of health and safety has given rise to a body of knowledge and experience in this field, which, as we explain later in this judgment, creates the context in which the court has to assess an employer’s performance of its common law duty of care. The Lord Ordinary was entitled to accept Mr Greasly’s experience in carrying out and advising his clients on risk assessments as a proper basis for his giving of such evidence.

65. The Extra Division had two other major criticisms of Mr Greasly’s evidence. One was that he was inadmissibly giving his opinion on matters of law. The other, which was based on the well-known dictum of Oliver J in Midland Bank Trust Co Ltd v Hett Stubbs & Kemp, p.402, a case of solicitor’s

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negligence, was that an expert’s opinion of what he would have done in the circumstances did not assist the court, and was therefore inadmissible.

66. The former objection may properly be made to Mr Greasly’s statements that it was for Cordia to consider the range of footwear and attachments that were available (main report, para.3.74) and that it was for Cordia to take steps to reduce the risk as far as was reasonably practicable (main report, para.4.11).

They appear at first sight to be statements of opinion on Cordia’s legal duty, which would not be admissible before lay fact finders and should be avoided.

An experienced judge however could readily treat the statements as the opinions of a skilled witness as to health and safety practice, based on the Management Regulations and the PPE Regulations and on HSE guidance, and make up his own mind on the legal question. The Lord Ordinary (at para.48 of his opinion) interpreted passages in Mr Greasly’s supplementary report as expressing an opinion that Cordia had breached their statutory duty.

If that were a correct interpretation of what Mr Greasly had said, those passages of his evidence were not admissible. But, as we shall explain, that does not undermine the Lord Ordinary’s decision, because he applied his own mind to the central legal issues.

67. We are not persuaded by the latter objection. There may be cases where the opinion of a professional as to what he or she would have done in a given circumstance is of only limited weight in the court’s assessment of a claim for professional negligence, as in Hett Stubbs. But we see no reason why the Lord Ordinary should not have found helpful the reasoned view of a person experienced in carrying out risk assessments on the rating of risks within a risk assessment. Cordia assessed the risk of injury such as sprains or fractures when travelling to and from work locations to be “tolerable”, applying a British Standard with which a judge might not be familiar but which was relevant to a consideration of proper practice. Mr Greasly opined that in wintry conditions the risk should have been assessed as “substantial”. His evidence provided a basis for the Lord Ordinary to weigh up the opposing views when deciding whether Cordia had suitably and sufficiently evaluated the risks and identified the measures needed to protect health and safety. We have difficulty in seeing how Miss Kennedy’s counsel could have presented her case on these matters by legal submissions alone.

68. Mr Greasly not only collated the factual material to which we have referred but also gave opinion evidence on how the relevant risk assessment should have been carried out. The Lord Ordinary held (in para.43 of his opinion) that Mr Greasly had the necessary experience to give such evidence about health and safety at work. In our view the circumstances of this case are therefore materially different from Hawkes v Southwark London Borough Council in which Aldous LJ was critical of the plaintiff for calling an expert engineering witness unnecessarily.

69. When Cordia responded to an invitation from this court to submit a note identifying the specific passages in Mr Greasly’s reports to which they objected, they identified passages which raised the issues which we have discussed above.

They also objected to several statements of the obvious, such as that anti-slip attachments with spiked steel projections must help increase traction in snow and ice and so reduce the risk of slipping. But these statements were a small part of Mr Greasly’s narrative and are not objectionable. It would be different if the sum and substance of an expert’s report were blindingly obvious. Such a report would be inadmissible because it would not assist the court.

70. In summary, the Extra Division erred in treating much of the factual material in Mr Greasly’s report as inadmissible on the basis that it was not

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skilled evidence that assisted the court. The Extra Division also erred in excluding his evidence on how he would have carried out the risk assessment.

As we have said, his expressions of opinion as to what Cordia should have done were capable of being interpreted as legal opinions that Cordia had breached statutory regulations and thus objectionable. But the Lord Ordinary applied his own mind to the legal questions which he had to decide: see our discussion of this part of his opinion in paras 21–25 above.

71. As in this case, it may on occasion be expedient to instruct a witness with general health and safety experience to give skilled evidence on a specific question of health and safety practice which he or she may not have encountered in the past. Such a witness may have to conduct research into how the particular risk might have been reduced or avoided. Whether or not the witness has sufficient experience and knowledge to give skilled evidence is a matter which can be explored either through case management or in cross-examination.

72. In this case Mr Greasly included in his evidence material, which his instructing solicitors had provided to him, relating to the practices of other employers obtained from freedom of information requests. The solicitors themselves did not give evidence. In such circumstances, it is, as a matter of fairness, incumbent on the solicitors to disclose to the skilled witness and to the other parties in the litigation the relevant material which they have assembled, whether or not it supports their case. It is not clear in this case whether there was any undisclosed material.

73.We observe that in this case there was no suggestion that Miss Kennedy’s advisers had adopted an uneconomic approach to the litigation. Her proof consisted of two witnesses: herself and Mr Greasly.

A

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D The Framework Directive

74. We turn next to the issues of substantive law which are raised in the appeal.

Before considering the regulations which were relied upon, it is helpful to consider their background in EU law, partly because the regulations have to be construed as far as possible so as to give effect to EU law, and also in view of the Extra Division’s criticism of the Lord Ordinary’s remarks about the direction of the law being to level safety upwards.

75. Article 153 of the Treaty on the Functioning of the European Union requires the EU to support and complement the activities of the Member States in a number of fields, including “improvement in particular of the working environment to protect workers’ health and safety”, and permits the European Parliament and Council to adopt Directives for that purpose. It is clear from the case law of the Court of Justice that art.153, and in particular the concepts of “working environment”, “safety” and “health”, are not to be interpreted restrictively: see, for example, United Kingdom v Council of the European Union, para.15.

76. It was under the predecessor of art.153, namely art.118a of the EEC Treaty, that the Council adopted Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (the Framework Directive). In the preamble, the recitals refer repeatedly to improving safety and health in the working environment, and to harmonising the relevant national laws, so that competition is not at the expense of safety and health. As the Lord Ordinary correctly stated, safety is to be levelled upwards.

77. As we shall explain, the Framework Directive provides a basis for “daughter” directives addressing particular aspects of health and safety at

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work. It is necessary to refer to only a few of the articles of the Framework Directive itself. Art.1(1) states that the object of the directive is to introduce measures to encourage improvements in the safety and health of workers at work. To that end, according to art.1(2), it contains general principles and general guidelines for the implementation of those principles. Art.1(3) provides that the directive is without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work. Under art.4(1), Member States are required to take the necessary steps to ensure that employers and others are subject to the legal provisions necessary for the implementation of the directive.

78. Article 5(1) provides that the employer shall have a duty to ensure the safety and health of workers in every aspect related to the work. Art.5(4) permits Member States to provide for the exclusion or limitation of employers’ responsibility “where occurrences are due to unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.”

79. Article 6(1) provides that, within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, and shall “aim to improve existing situations.”

80. Article 6(2) sets out the general principles of prevention which are to form the basis of the measures taken under para.1. They include: “(a) avoiding risks; (b) evaluating the risks which cannot be avoided; ... (h) giving collective protective measures priority over individual protective measures; and (i) giving appropriate instructions to the workers.”

These principles are fundamental to the panoply of “daughter” directives, and to the legislation transposing them into domestic law. Where possible, risk is to be avoided rather than reduced; means of collective protection are to be preferred to means of individual protection (such as PPE); and merely giving instructions to the workers is to be the last resort.

81. Another fundamental principle is the assessment of risk. That principle is set out in art.6(3)(a), and is especially relevant to the present case. It requires the employer to “evaluate the risks to the safety and health of workers”, and provides that: “Subsequent to this evaluation and as necessary, the preventive measures and the working and production methods implemented by the employer must: assure an improvement in the level of protection afforded to workers with regard to safety and health.”

82. Finally, in relation to the Framework Directive, art.16(1) requires the Council to adopt individual sirectives in the areas listed in the annex, including “personal protective equipment”. In terms of art.16(3), the provisions of the Framework Directive are to apply in full to all the areas covered by the individual directives, without prejudice to more stringent or specific provisions contained in those directives.

The PPE Directive

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83. One of the individual Directives, within the meaning of art.16 of the Framework Directive, is Directive 89/656/EEC of 30 November 1989 on the

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minimum health and safety requirements for the use by workers of personal protective equipment at the workplace (the PPE Directive). It again has its legal basis in art.118a of the EEC Treaty.

84. Article 1 explains that the directive lays down minimum requirements for PPE used by workers at work. PPE is defined by art.2(1) as meaning: “all equipment designed to be worn or held by the worker to protect him against one or more hazards likely to endanger his safety and health at work, and any addition or accessory designed to meet this objective”.

A

Art. 3 lays down a general rule that: “Personal protective equipment shall be used when the risks cannot be avoided or sufficiently limited by technical means of collective protection or by measures, methods or procedures of work organization.”

B

Art.6(1) requires Member States to ensure that rules are established for the use of PPE, and refers to the annexes to the directive as a guide. Annex I includes the risk of “slipping, falling over” in a specimen risk survey table for the use of PPE. Annex II sets out a non-exhaustive guide list of items of PPE, including “Removable spikes for ice, snow or slippery flooring.” Annex III sets out a non-exhaustive guide list of activities and sectors of activity which may require the provision of PPE, including, under the category of weatherproof clothing, “Work in the open air in rain and cold weather.”

C

The Management Regulations

85. The Management Regulations are intended primarily to implement the Framework Directive. Regulation 3(1) provides: [his Lordship quoted the regulation as set out above and continued:] 86. The statutory provisions referred to in reg.3(1) are those contained in Pt.I of the Health and Safety at Work etc Act 1974 (the 1974 Act) and regulations made under s.15 of that Act: see s.53(1). Both the Management Regulations and the PPE Regulations were made under s.15 of the 1974 Act. 87. Regulation 4 of the Management Regulations provides that where an employer implements any preventive and protective measures, he shall do so on the basis of the principles specified in Sched.1 to the regulations. Those principles are derived from art.6(2) of the Framework Directive and are in almost identical terms.

88. In relation to civil liability, s.47(2) of the 1974 Act provided at the relevant time, prior to its amendment by s.69 of the Enterprise and Regulatory Reform Act 2013, that breach of a duty imposed by health and safety regulations (ie, regulations made under s.15) “shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise”. Reg.22 of the Management Regulations, as it stood at the relevant time, provided that breach of a duty imposed on an employer by the regulations did not confer a right of action in any civil proceedings insofar as the duty applied for the protection of a third party (ie, someone other than an employee). The regulations therefore contained no bar to liability towards an employee, subject to the requirement imposed by s.47(2) that the breach of duty “causes damage”.

89. The importance of a suitable and sufficient risk assessment was explained by the Court of Appeal in the case of Allison v London Underground Ltd. Smith LJ observed at para.58 that insufficient judicial attention had been given to risk assessments in the years since the duty to conduct them was first

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introduced. She suggested that that was because judges recognised that a failure to carry out a sufficient and suitable risk assessment was never the direct cause of an injury: the inadequacy of a risk assessment could only ever be an indirect cause. Judicial decisions had tended to focus on the breach of duty which led directly to the injury. But to focus on the adequacy of the precautions actually taken without first considering the adequacy of the risk assessment was, she suggested, putting the cart before the horse. Risk assessments were meant to be an exercise by which the employer examined and evaluated all the risks entailed in his operations and took steps to remove or minimise those risks. They should, she said, be a blueprint for action. She added at para.59, cited by the Lord Ordinary in the present case, that the most logical way to approach a question as to the adequacy of the precautions taken by an employer was through a consideration of the suitability and sufficiency of the risk assessment. We respectfully agree.

The application of the Management Regulations in the present case

C

D

E

F

90. As we have explained, the Extra Division did not consider closely whether Cordia had complied with their duties under the Management Regulations, or reach any conclusion on that question. This court should however do so. It is clear from the evidence that Miss Kennedy was exposed to a risk to her health and safety whilst she was at work, namely the risk of slipping and falling on snow and ice while travelling between clients’ houses. That risk was obvious as a matter of common sense, and was in any event within Cordia’s knowledge, given their previous experience of the incidence of home carers suffering such accidents each year. The risk was identified, in general terms, in the 2005 risk assessment. Although it was not explicitly addressed in the 2010 risk assessment, risks of that general nature were again identified.

91. Considering the risk of slipping in accordance with the general principles set out in Sched.1 to the Regulations, and adopted from art.6(2) of the Framework Directive, it could not be avoided: for wholly understandable reasons, it was Cordia’s position that the individuals who were dependent on the services of the home carers had to be visited if at all possible. The risk therefore had to be evaluated and addressed in accordance with those principles, which set out a hierarchical order in which the measures necessary to protect health and safety should be considered.

92. Was there, then, a sufficient evaluation of the risk, and of the necessary measures? In relation to these matters, the Lord Ordinary’s conclusion was based on findings which he was entitled to make on the evidence, and on a proper understanding of the law. As he noted, the risk of a home carer slipping on snow or ice while at work, on the way to a client’s home, was accepted to be likely—“a dead cert”, as Miss Rodger put it. It was also accepted that the injuries which might be sustained included fractures and head injuries, and were therefore potentially serious. No consideration, however, was given to the possibility of individual protective measures, before relying on the measure of last resort, namely giving appropriate instructions to employees. Even then, the instructions given, in the form of advice to wear appropriate footwear, provided no specification of what might be appropriate. In these circumstances, the Lord Ordinary was entitled to conclude that there had been a breach of reg.3(1).

The PPE Regulations

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93. The PPE Regulations are intended to implement the PPE Directive.

Regulation 2(1) defines “personal protective equipment” as meaning all

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equipment (including clothing affording protection against the weather) which is intended to be worn or held by a person at work and which protects him against one or more risks to his health or safety, and any addition or accessory designed to meet that objective. We should record that no reliance has been placed in these proceedings on reg.3(2), which excludes the application of the regulations in respect of PPE which is: “(d) personal protective equipment used for protection while travelling on a road within the meaning (in England and Wales) of s.192(1) of the Road Traffic Act 1988, and (in Scotland) of s.151 of the Roads (Scotland) Act 1984”.

94. Regulation 4(1) is particularly relevant to the present case. It provides:[His Lordship quoted the regulation as set out above and continued:] 95. In terms of reg.4(3), as amended, PPE is not suitable unless, amongst other things: “(a) it is appropriate for the risk or risks involved, the conditions at the place where exposure to the risk may occur, and the period for which it is worn”,

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and “(d) so far as is practicable, it is effective to prevent or adequately control the risk or risks involved without increasing overall risk”.

96. Regulation 6 imposes a further duty to carry out a risk assessment. In terms of reg.6(1), before choosing any PPE which by virtue of reg.4 he is required to ensure is provided, an employer must ensure that an assessment is made to determine whether the PPE he intends will be provided is suitable. In terms of art.6(2), the assessment must include, among other things: [His Lordship quoted the regulation as set out above and continued:] 97.Finally, in relation to the provisions of the PPE Regulations, the Extra Division considered the Lord Ordinary’s approach to be inconsistent with regs.8 and 10. Regulation 8 provides: [His Lordship quoted the regulation as set out above and continued:] Regulation 10 provides, so far as material: [His Lordship quoted the regulation as set out above and continued:]

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E The application of the PPE Regulations in the present case

98. As we have explained, the Lord Ordinary was entitled to find that there had been a failure to carry out a suitable and sufficient risk assessment. Such an assessment would have involved specific consideration of the possibility of individual protective measures to reduce the risk of home carers slipping and falling on snow and ice. Had that possibility been considered, the Lord Ordinary found that a number of devices were available which would have been suitable to reduce the risk. Since none was provided, it followed that there was a breach of reg.4(1) of the PPE Regulations.

99. The Extra Division put forward a number of arguments in support of their conclusion that the regulations had no application in the circumstances of the present case. First, they pointed out that reg.4(1) is concerned with risks to which employees are exposed “while at work”. They inferred that the risks in question must be created or increased by the nature of the work. Lord Brodie considered that this construction was consistent with art.1(1) of the Framework Directive, which described the object of the directive as being to introduce measures to encourage improvements in the safety and health of

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“workers at work”. Similarly, art.1(1) of the PPE Directive stated that the directive laid down minimum requirements for PPE used by “workers at work”. Reliance was also placed on the reference in art.2(1) to “hazards likely to endanger his safety and health at work”, and to the general rule set out in art.3, quoted in para.84 above. Lord Brodie said that he took from this language that the concern of the PPE Regulations was the risks to which the worker was exposed at work which arose specifically from that work, as opposed to risks to which a worker might be exposed in the same way as members of the public. It was in the former circumstances that the employer might be supposed to have the requisite knowledge and means to control the risk through the hierarchy of measures set out in art.6(2) of the Framework Directive and Sched.1 to the Management Regulations.

100. We do not find these arguments persuasive. An employee is “at work”, for the purposes of both the Management Regulations and the PPE Regulations, throughout the time when she is in the course of her employment: s.52(1)(b) of the 1974 Act. The point is illustrated by the facts of Robb v Salamis (M & I) Ltd. Miss Kennedy in particular, as a home carer, was “at work” when she was travelling between the home of one client and that of another in order to provide them with care. Indeed, travelling from one client’s home to another’s was an integral part of her work. The meaning of the words “while at work” in reg.4(1) of the PPE Regulations (and of the equivalent words, “whilst they are at work”, in reg.3(1) of the Management Regulations) is plain. They mean that the employee must be exposed to the risk during the time when she is at work, that is to say, during the time when she is in the course of her employment. They refer to the time when she is exposed to the risk, not to the cause of the risk.

101. That conclusion as to the construction of the regulations would not be affected even if, as the Extra Division considered, the directives were to be construed as having a narrower application. As art.1(3) of the Framework Directive makes clear, the directives do not exclude the adoption of national measures which provide greater protection. The PPE Directive in particular “lays down minimum requirements”: art.1(1). It has been noted in earlier cases that the domestic regulations are in some respects of wider scope than the directives (see, for example, Hide v The Steeplechase Co (Cheltenham) Ltd. 102. But the directives are not in any case confined to risks arising specifically from the nature of the activities which the worker carries out, as opposed to risks arising from the natural environment to which the worker is exposed while at work. Art.5(1) of the Framework Directive requires the employer to ensure the safety and health of workers “in every aspect related to the work”. Art.5(4) makes it clear that the employer’s obligations are not confined to risks arising from matters within his control: Member States are permitted to exclude or limit employers’ responsibility only; “where occurrences are due to unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care”.

The obligation imposed by art.6(3)(a) applies to all risks to the safety and health of workers: Commission of the European Communities v Italian Republic, para.12. As we have explained, Annex II to the PPE Directive includes “Removable spikes for ice, snow” in its non-exhaustive guide list of items of PPE, while Annex III includes “Work in the open air in rain and cold weather” in its non-exhaustive guide list of activities and sectors of activity which may require the provision of PPE.

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103. As we have explained, the Extra Division also considered the Lord Ordinary’s approach to be inconsistent with regs 8 and 10 of the PPE Regulations. We do not agree. Reg.8 requires the employer to ensure that appropriate accommodation is provided for the PPE when it is not being used.

Lord Brodie reasoned that, since the employer could only make accommodation available in places or situations where he could exercise control, reg.8 suggested that the risks with which the regulations were concerned were similarly confined. With respect, that does not follow. Protective clothing, for example, often has to be provided precisely because the employer cannot control the places or situations in which the clothing is to be worn (as, for example, in Henser-Leather v Securicor Cash Services Ltd and Taylor v Chief Constable of Hampshire Police). It also has to be borne in mind that there may be situations in which the most appropriate place for PPE to be accommodated when it is not in use will be in the employee’s home or vehicle. In such a situation, the employer might fulfil its duty under reg.8 by arranging with the employee for the PPE to be accommodated there.

104. So far as reg.10 is concerned, it requires the employer to take all reasonable steps to ensure that any PPE provided to his employees is properly used, and is returned to the accommodation provided for it after use. The Extra Division appear to have considered that it would be difficult to apply or enforce those obligations in situations where the risk was not created by the nature of the task carried out by the employee. We do not share that concern.

Evidently, the implications of a duty to take all reasonable steps depend on the circumstances.Where, for example, the PPE is intended to be used in situations where the employee cannot reasonably be subject to immediate supervision, the duty to take all reasonable steps will not require such supervision, but may be satisfied by less onerous measures, such as adequate training and instruction.

105. There remains the Extra Division’s conclusion that there was in any event no obligation to provide PPE in the present case, since on the Lord Ordinary’s findings the risk of slipping was adequately controlled by other means which were equally or more effective, as required by reg.4(1) of the PPE Regulations. In that regard, the Extra Division considered that there was little evidence as to the likely efficacy of attachments over the range of underfoot conditions that Miss Kennedy could have been expected to encounter.

106. We are unable to reconcile the Extra Division’s conclusion with the Lord Ordinary’s findings. In relation to the exception to reg.4(1), he noted that the onus was on the employer to establish that the exception was made out. He found, in the first place, that the evidence about the precautions in place, in the form of training, was vague and unsatisfactory. As he commented, that in itself showed that the precautions taken could not be regarded as “adequate control by other means”. Furthermore, he accepted Mr Greasly’s evidence about the availability of PPE which would reduce the risk. His reasoning reflects the evidence and a proper understanding of the law. The evidence established that anti-slipping attachments were available at a modest cost; that they were used by other employers to address the risk of their employees slipping and falling on footpaths covered in snow and ice; that there was a body of research demonstrating that their use reduced the risk of slipping in wintry conditions; and that Mr Greasly’s own experience was that the attachments which he had used had made a difference. His evidence, which the Lord Ordinary accepted, was that, had Miss Kennedy worn such devices, on a balance of probabilities the risk of her falling on ice and snow would have

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been reduced and might have been eliminated. As against that, Cordia had given no consideration to the matter. In those circumstances, we can see no basis in the Lord Ordinary’s findings, or in the evidence, for finding that the exception in reg.4(1) had been made out.

Common law liability

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107. It may be helpful at the outset to address a general point arising from the opinions of the Extra Division. They contain numerous comments to the effect that it is unreasonable to suggest that Miss Kennedy’s employer should have provided her with special footwear designed to reduce the risk of her slipping and falling, since she was in the same position as any other member of the public travelling on foot in wintry conditions. It was in that context that the Extra Division stressed the “necessary basic questions” identified by Lord President Dunedin in Morton v William Dixon Ltd, and referred to the Caparo test: see para.32 above.

108. One can understand the Extra Division’s concern that the law should not be excessively paternalistic. Miss Kennedy was not, however, in the same position as an ordinary member of the public going about her own affairs. It was her duty, as someone employed by Cordia as a home carer, to visit clients in their homes in different parts of the city on a freezing winter’s evening despite the hazardous conditions underfoot. Unlike an ordinary member of the public, she could not choose to stay indoors and avoid the risk of slipping and falling on the snow and ice. Unlike an ordinary member of the public, she could not choose where or when she went. She could not keep to roads and pavements which had been cleared or treated. She could not decide to avoid the untreated footpath leading to Mrs Craig’s door. Unlike an ordinary member of the public, she was obliged to act in accordance with the instructions given to her by her employers: employers who were able, and indeed obliged under statute, to consider the risks to her safety while she was at work and the means by which those risks might be reduced. In those circumstances, to base one’s view of the common law on the premise that Miss Kennedy was in all relevant respects in the same position as an ordinary member of the public is a mistake.

109. Furthermore, the common law relating to employers’ liability was not definitively stated by Lord Dunedin in Morton v William Dixon Ltd. As long ago as 1959, Lord Keith of Avonholm devoted his speech in Cavanagh v Ulster Weaving Co Ltd to the clarification of Lord Dunedin’s dictum. He observed that the ruling principle was that an employer was bound to take reasonable care for the safety of his workmen, and all other rules or formulas must be taken subject to that principle (a point which had earlier been made, in relation to Lord Dunedin’s dictum, by Lord Normand in Paris v Stepney Borough Council, p.382 and by Lord Reid in Morris v West Hartlepool Steam Navigation Co Ltd, p.571, amongst others). He added that Lord Dunedin could not have intended to depart from or modify that fundamental principle. Both in that case and in Brown v Rolls Royce Ltd Lord Keith emphasised that Lord Dunedin was laying down no proposition of law.

110. The context in which the common law of employer’s liability has to be applied has changed since 1909, when Morton v William Dixon Ltd was decided. As Smith LJ observed in Threlfall v Kingston-upon-Hull City Council, para.35 (quoted by the Lord Ordinary in the present case), in more recent times it has become generally recognised that a reasonably prudent employer will conduct a risk assessment in connection with its operations so that it can take suitable precautions to avoid injury to its employees. In many

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circumstances, as in those of the present case, a statutory duty to conduct such an assessment has been imposed. The requirement to carry out such an assessment, whether statutory or not, forms the context in which the employer has to take precautions in the exercise of reasonable care for the safety of its employees. That is because the whole point of a risk assessment is to identify whether the particular operation gives rise to any risk to safety and, if so, what is the extent of that risk, and what can and should be done to minimise or eradicate the risk. The duty to carry out such an assessment is therefore, as Lord Walker of Gestingthorpe said in Fytche v Wincanton Logistics plc, para.49, logically anterior to determining what precautions a reasonable employer would have taken in order to fulfil his common law duty of care.

111. It follows that the employer’s duty is no longer confined to taking such precautions as are commonly taken or, as Lord Dunedin put it, such other precautions as are so obviously wanted that it would be folly in anyone to neglect to provide them. A negligent omission can result from a failure to seek out knowledge of risks which are not in themselves obvious. A less outdated formulation of the employer’s common law duty of care can be found in Baker v Quantum Clothing Group Ltd, para.9.

112. In the present case, Cordia were aware of a history of accidents each year due to their home carers slipping on snow and ice, and they were aware that the consequences of such accidents were potentially serious. Quite apart from the duty to carry out a risk assessment, those circumstances were themselves sufficient to lead an employer taking reasonable care for the safety of its employees to inquire into possible means of reducing that risk.

113. Had such inquiries been made, or a proper risk assessment carried out, the implication of the evidence accepted by the Lord Ordinary is that Cordia would have learned that attachments were available, at a modest cost, which had been found to be effective in reducing the risk, and had been provided by a number of other employers to employees in a similar position.

In those circumstances, the Lord Ordinary was entitled to conclude that Cordia were negligent in failing to provide Miss Kennedy with such attachments.

114. It is necessary only to add that the familiar threefold test set out by Lord Bridge of Harwich in Caparo is not relevant in this context, as counsel for Cordia acknowledged. That test is concerned with the imposition of a duty of care in novel circumstances. There is no doubt that an employer owes a duty of care towards its employees. The question in the present case is not whether a duty of care existed, but whether it was fulfilled.

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Causation

115. It remains to consider the Extra Division’s conclusion that the Lord Ordinary was not entitled to find Cordia liable in the absence of any explicit finding that Miss Kennedy’s injury had been caused by any breach of duty on their part. The question is not, of course, whether Miss Kennedy’s injury would necessarily have been prevented: as in other civil contexts, the matter has to be decided on a balance of probabilities.

116. The Lord Ordinary made no express findings in relation to causation, other than that he accepted Miss Kennedy’s evidence that she would have used anti-slip attachments if they had been provided to her. The question therefore is whether, in the light of the other findings which were made, the only reasonable inference which could be drawn was that Cordia’s breach of their duties caused or made a material contribution to Miss Kennedy’s accident.

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117. So far as the Management Regulations are concerned, the breach of reg.3(1) resulted in a failure to provide protective equipment, in breach of the PPE Regulations. The issue of causation therefore turns on the consequences of the latter breach.

118. So far as the PPE Regulations are concerned, the finding that there was a breach of reg.4(1) implies that there was a failure to ensure that “suitable” equipment was provided. As we have explained, equipment is “suitable” only if “so far as is practicable, it is effective to prevent or adequately control the risk or risks involved”: reg.4(3)(d). It follows from that definition that the equipment need not necessarily prevent the risk, but it must, as a minimum, adequately control the risk so far as is practicable. The concept of suitability thus contains a causal component. The regulations do not define “adequately”, but it can be inferred from the EU legislation (including the requirement under art.5(1) of the Framework Directive that the employer shall have a duty to ensure the safety and health of workers) that a risk will not be adequately controlled unless injury is highly unlikely. Bearing in mind that the PPE Regulations should not be construed in such a way as to reduce preexisting levels of protection, that conclusion is also supported by case law on the previous domestic law. For example, in the case of Rogers v George Blair & Co Ltd, which concerned the duty to provide “suitable” goggles under s.65 of the Factories Act 1965, Salmon LJ stated at p.395: “The protection, to be suitable, need not make it impossible for the accident to happen, but it must make it highly unlikely.”

119.It follows that where an employee has been injured as a result of being exposed to a risk against which she should have been protected by the provision of PPE, and it is established that she would have used PPE if it had been provided, it will normally be reasonable to infer that the failure to provide the PPE made a material contribution to the causation of the injury. Such an inference is reasonable because the PPE which the employer failed to provide would, by definition, have prevented the risk or rendered injury highly unlikely, so far as practicable. Such an inference would not, of course, be appropriate if the cause of the accident was unconnected with the risk against which the employee should have been protected.

120. In the present case, there was no suggestion that it would not have been practicable to provide equipment which was effective to prevent or adequately control the risk or risks involved, and the evidence of Mr Greasly was to the contrary effect. In the circumstances, the only inference which could reasonably have been drawn was that the breach of reg.4(1) had caused or materially contributed to the accident, and that Cordia were therefore liable to Miss Kennedy under the PPE Regulations.

121. If, on the other hand, the Lord Ordinary’s finding of a breach of reg.4(1) of the PPE Regulations is left out of account, and one focuses solely upon his finding of a breach of a common law duty of care, then the position in relation to causation is more problematical. Given that the Lord Ordinary accepted Mr Greasly’s evidence about the slip resistance of the attachments which he had experienced using, it might perhaps have been inferred as a matter of common sense that Cordia’s failure to provide such attachments was a material cause of Miss Kennedy’s accident (cf, Drake v Harbour, para.28).

It cannot, however, be said that the Lord Ordinary would necessarily have reached that conclusion. His opinion does not contain any explicit consideration of the matter, or articulate any conclusion. In those circumstances, it is difficult to maintain that there was a proper foundation for his decision that Cordia were liable in damages at common law. That conclusion is however of no

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practical significance, given that Cordia are liable in any event under the 1992 Regulations.

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Conclusion

122. For these reasons, we would allow the appeal.

For the appellant: Frank Burton QC, Ian Mackay QC, Ewan G McKenzie, instructed by Digby Brown LLP, Solicitors, Edinburgh.

For the respondent: Andrew Smith QC, Jillian Martin-Brown, instructed by Glasgow City Council.

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