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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lannigan v. Glasgow City Council [2004] ScotCS 201 (12 August 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/201.html Cite as: [2004] ScotCS 201 |
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OUTER HOUSE, COURT OF SESSION |
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A4518/01
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OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge) in the cause DAVID LANNIGAN (AP) Pursuer against GLASGOW CITY COUNCIL Defenders
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Pursuer: Woolman QC, Davidson; Drummond Miller, WS
Defenders: Hofford; Edward Bain
12 August 2004
Introduction
[1] The pursuer describes this action as a pioneering piece of litigation. It is brought against the education authority vicariously liable for the acts and omissions of the teachers and learning support staff at the schools which he attended in Glasgow. He avers that the teachers and learning support staff were negligent in failing to diagnose the fact that he was suffering from a specific learning difficulty, namely, motor dyslexia, or in any event in failing to recognise what is known as "the pattern" as being characteristic of a specific learning difficulty and to arrange for an assessment by a specialist in light of the pattern. It is averred by him that no teacher of ordinary skill exercising reasonable care would have failed to recognise the pattern as being characteristic of a specific learning difficulty or at least to arrange for such an assessment. A similar averment of negligence is made against the learning support staff. It was not until 17 November 1996, when the pursuer (who was born on 6 March 1980) was aged 16 that his motor dyslexia was diagnosed by a psychologist at the Dyslexia Institute in Glasgow to whom he had been referred by his parents. It is averred that, had his dyslexia been diagnosed earlier, suitable treatment (provision of at least some of the necessary aids) resulting in the minimisation of his symptoms and the period during which they undermined his academic progress could and would have been effected and that, but for the teachers' actings, it is likely that he would have gained better results in public examinations at school with a consequent improved prospect of going on to university and been able to enjoy a lucrative career in computing as a university graduate. His present employment is as a civil servant employed by The Scottish Registers at a wage of £647 per month net and he claims for past and future loss of earnings.[2] The case called on procedure roll on the first three pleas-in-law for the defenders. Their first plea is that, the action being time-barred, it should be dismissed. The second plea is that, it not being equitable that the action should be allowed to proceed in terms of Section 19A of the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act"), it should be dismissed. The third plea is a general plea to the relevancy of the action. The pursuer's pleas-in-law 3, 4, 5 and 6 are preliminary pleas. At the procedure roll debate no argument was presented on plea 4 (a plea to the relevancy of the defences, asking that proof should be restricted to quantum) or plea 6 (a plea to the relevancy of the defences, asking that decree de plano should be pronounced). Plea 3 is a plea to the effect that is just and equitable that the action should be allowed to proceed under Section 19A of the 1973 Act. Plea 5 is a plea that, the defenders' averments under the 1973 Act being irrelevant and lacking in specification, the defenders' first and second pleas-in-law should be repelled.
[3] The action was raised on 28 August 2001 and the pursuer admits in Condescendence 11 that it is time-barred under Section 17 of the 1973 Act, but then proceeds to aver that it is just and equitable that the action should be allowed to continue and that the Court should exercise its discretion in favour of allowing him to proceed with the action under Section 19A of the 1973 Act.
[4] It is necessary, before giving the submissions of the parties on the issue of limitation, to consider the averments relating thereto which are made by each of them. Following his admission in Condescendence 11 that the action is time-barred and his averment that it is just and equitable that the action should be allowed to continue, the pursuer makes the following averments:
"The pursuer has not delayed unreasonably in raising proceedings. The pursuer was not rich enough to obtain professional legal advice and raise proceedings on a private basis. He did not have the benefit of legal services insurance and he was not a member of a Trade Union. Few, if any Scottish Solicitors were or are prepared to act speculatively in a case which is 'pioneering'. In any event, nobody suggested this possibility to the pursuer and he did not know about it during the material period. The pursuer consulted Messrs Hamilton Burns & Moore (now Messrs HBM Sayers) [hereinafter referred to as 'the first agents'] about his claim in August 1997. The first agents obtained precognitions from the pursuer and his mother in November 1997. They did so under SLAB's advice and assistance scheme. Thereafter, the first agents submitted an application on behalf of the pursuer to the Scottish Legal Aid Board. In November 1997, Miss Kerr of the first agents wrote to SLAB seeking an increase in advice and assistance authorised expenditure so that further investigations could be carried out. In particular Miss Kerr wanted to obtain funding to cover the cost of intimating a claim on the defenders and to finance the cost of obtaining an Expert Report. By letter dated 19th January, 1998, SLAB wrote to the first agents and advised them that the pursuer's Application had been unsuccessful. A copy of the letter is produced herewith. The first agents received the letter on 21st January, 1998. Thereafter they took no further steps to progress the action. The pursuer wrote to the first agents on approximately four occasions seeking information about his claim. The first agents did not reply to those letters. By letter dated 2nd August, 2000, the first agents wrote to the pursuer and advised him that his request for an increase in authorised expenditure had been refused. The first agents apologised for their failure to communicate this fact to the pursuer at an earlier stage. The first agents did not explain why SLAB had refused the request for additional funding. The first agents intimated that they were withdrawing. The first agents mentioned that there was a potential problem with time-bar and advised the pursuer to instruct another firm of Solicitors as a matter of urgency. The pursuer did not know what to do and so he discussed the position with his aunt who was and is a Solicitor in Stoke. She advised him to find another firm with relevant experience. The pursuer and his parents contacted Messrs Stewarts & Murdochs, Solicitors, Glasgow (hereinafter referred to as 'the second agents'). In about the middle of August 2000, the pursuer made contact with Mrs Cotter of the second agents and instructed her to handle his claim. Mrs Cotter of the second agents realised that it was an unusual claim and she decided (reasonably) that it was necessary to obtain an Expert Report before going back to SLAB with a request for a Certificate. Mrs Cotter advised the pursuer that he could (and should) commission the proposed Expert Report on a private basis. The pursuer was not able to afford the cost of that exercise but his parents agreed to pay for it. Mrs Cotter, a member of the Mental Health Commission, spoke to Dr Boyle about his possible involvement as an Expert and she met the pursuer on 16th August, 2000 to discuss the way forward. By letter dated 30th August, 2000 the second agents instructed an Educational Psychologist, Dr Jack Boyle, to examine the available evidence, interview the pursuer/his parents and assess the performance of the Teachers. Dr Boyle interviewed the pursuer's parents on 11th September 2000. In about mid October 2000, Dr Boyle raised various queries about the pursuer's case with the second agents. By letter dated 19th October, 2000, the second agents wrote to Dr Boyle and clarified the points raised by him. There was a minor dispute about the cost of the Report in late November 2000. By letter dated 28th November, 2000, the second agents wrote to Dr Boyle and put further pressure on him to finalise his Report. The Final Report of Dr Boyle was available on or about 4th December, 2000. Dr Boyle's Report provided the necessary basis for litigation to be considered against the defenders. Mrs Cotter discussed the Report with the pursuer and his parents. Mrs Cotter asked her Trainee, Mr Craig McPhee, to investigate the relevant law so that any recent developments could be identified. Mr McPhee carried out extensive research and prepared a lengthy Memorandum dated 4th January, 2001. The Memorandum discussed inter alia the cases of Christmas v Hampshire CC [1998] ELR 1; Jarvis v Hampshire CC [2000] Ed CR1; X (Minors) v Bedfordshire CC [1995] 2 AC 633; Anderton v Clwyd CC [1999] ER 1; Phelps v Hillingdon [1997] 3 FCR 621; and Knight v Dorset CC Trans. Ref: CO 1110-96, December 20, 1996. The research of McPhee disclosed that no Scottish case dealing with the alleged failure of a Teacher to diagnose dyslexia had been reported. If the pursuer decided to raise proceedings, his action would be a pioneering piece of litigation. Mrs Cotter and Mr Frame of the second agents discussed the implications of the research undertaken by McPhee with the pursuer's father. Thereafter, progress was hampered by illness. From about 8th January, 2001 to mid February 2001, Mrs Cotter was absent from work as result of flu. When she returned, she wrote to the pursuer's father by letter dated 16th February 2001 discussing the desirability and cost of obtaining Counsel's Opinion. Having considered the letter, the pursuer's father agreed to pay for Counsel to be instructed. On or about 20th February, the pursuer's father advised the second agents that he would pay for Counsel to be instructed. On or about 25th February, 2001 the second agents prepared a Memorial for the Opinion of Counsel. By letter dated 28th February, 2001, the second agents instructed Junior Counsel to draft an Opinion on the pursuer's prospects of success. Junior Counsel prepared a detailed Opinion dated 6th April, 2001 which was used by the second agents to get Legal Aid cover from SLAB for their client, the pursuer. The second agents instructed Messrs Drummond Miller, W.S. (hereinafter referred to as 'the Edinburgh agents') to act as Edinburgh agents on behalf of the pursuer. By letter dated 23rd August, 2001, the Edinburgh agents instructed Junior Counsel to draft an urgent Summons. Junior Counsel drafted the Summons on 23rd August, 2001. The action was raised within a week of that draft being prepared. On 7th September, 2001 SLAB awarded the pursuer a full Legal Aid Certificate. There has been no unreasonable delay on the part of the pursuer in seeking legal redress for the loss which he has suffered and continues to suffer as a result of the Teachers' negligence and the negligence of the Learning Support Staff. Through no fault of his own, the pursuer received a poor professional service from the first agents. The facts of the pursuer's education would still require to be judicially explored in a future professional negligence against Messrs HBM Sayers (i.e. the first agents). Esto the pursuer has a cast iron case against Messrs HBM Sayers (which is not known and not admitted) it is explained and averred that there would be further delay and lapse of time if the pursuer's present action were to be dismissed. In any event, the defenders have not suffered material prejudice as a result of the passage of time. They can interview and obtain precognitions from the Teachers and Learning Support Staff. It is likely that the Teachers will have a clear recollection of the pursuer for all the wrong reasons. Unlike the hundreds of other children who passed through their classrooms, the pursuer was a difficult pupil who required a high degree of attention. During the material period, the defenders maintained a guidance/learning file on all pupils (including inter alios the pursuer ) at the said Schools. During the material period, the defenders had a practice of maintaining a guidance/learning support file for each of their pupils (including inter alios the pursuer) which chronicled his or her disciplinary problems. It is believed likely that the pursuer's guidance/learning support file was thick because he had a large number of disciplinary problems. The defenders had and have access to the contents of the pursuer's file and can make averments based on the information contained therein. The file will provide detailed information about the pursuer's career within the Schools, his difficulties and his academic performance. The defenders had and have access to the assessments of the pursuer's academic progress in the regular reports written contemporaneously by the Teachers and thereafter sent by the defenders to the pursuer's parents. Copies of a selection of said Reports are produced herewith. The defenders can arrange to have the pursuer examined by an Educational Psychologist of their choice. The chosen Expert can assess the extent of the pursuer's disability. Their chosen Expert can interview the pursuer about the details of the claim. There would be considerable prejudice to the pursuer if the defenders' First and/or Second Pleas-in-Law were to be upheld. He suffered a miserable time at the said Schools. His whole future life has been blighted by the fact that the bulk of his School career was wasted. He would be prejudiced if his claim for compensation were to be dismissed. The delay that has affected the progress of his claim to date has not been due to fault on his part."
"By amendment of his pleadings, the pursuer admits that his parents were aware of the possibility of dyslexia prior to 15th February, 1995. The pursuer admits that he was made aware of the diagnosis of motor dyslexia on 17th November 1996. He further admits that an action was not raised until 4 years and 9 and a half months later. Esto the action in respect of the Teachers is time-barred (as the pursuer admits) the action which the pursuer now seeks to make against the Learning Support Staff is also time-barred. The pursuer avers that he consulted his solicitors, Messrs HBM Sayers about his claim in August 1997. He avers that HBM Sayers withdrew from acting in August 2000 by which time the action was already time-barred. The pursuer has a cast iron case against HBM Sayers for failing to raise a Protective Writ within the triennium. Esto the pursuer was not rich enough to raise the action on a private basis (which is not known and not admitted), the Summons could have been drafted on a speculative basis at virtually no cost to him. The pursuer is called upon to aver the date upon which the Application for Legal Aid was submitted and the date upon which the Application was refused. His failure to answer this call will be founded upon. The pursuer is called upon to aver why he felt obliged to obtain a second Report in 2000 upon which to base his action when he was already in possession of the 1996 Report from Ms McGregor. His failure to answer this call will be founded upon. In any event, the defenders are prejudiced by the fact that since the pursuer is legally aided it is probable that the defenders will require to meet a large part of their own expenses, whether they successfully defend the action or not. The pursuer avers that Dr Boyle produced a Final Report on 23rd November 2000 which provided the basis for litigation to be considered against the defenders. The pursuer is called upon to aver why it was that Mrs Cotter, aware in 2000 that the action was already time-barred, took over 2 months to obtain the Final Report from Dr Boyle and took a further 3 months to draft a Memorial for the Opinion of Counsel. The pursuer is called upon to aver why it was that in those circumstances, when the action was long since time-barred, a full year passed between obtaining Dr Boyle's Report and raising the action. In these circumstances, there has been unreasonable delay in raising proceedings. In said circumstances, the pursuer's agents are his alter ego and any delay by them in the progress of the action is the pursuer's ultimate responsibility. There would be no prejudice to the pursuer if the Court refused to exercise the discretion conferred upon it by section 19A. In any event, it is likely that the case would not come to Proof for at least another year after any Procedure Roll hearing. The action would concern events which took place over a period between seven and nineteen years previously. The pursuer has averred that he has sustained loss, injury and damage as a result of the acts and omissions of twenty one named Teachers. The whereabouts of all said Teachers is not clear. The memories of such witnesses as the defenders will be able to trace will inevitably have been materially diminished by the passage of time. Their recollection is unlikely now to be accurate in relation to an action concerning one child amongst hundreds of children who have passed through their classrooms. The defenders will be prejudiced by a Proof taking place in such circumstances at a time likely to be about 8 or 9 years from the date upon which a diagnosis was first made by Ms McGregor."
Submissions for the defenders
[6] Mr Hofford submitted that the question I had to decide on the issue of limitation was whether I should exercise the equitable jurisdiction under section 19A(1) to allow the pursuer to bring the action notwithstanding that it was time-barred under section 17. The onus of satisfying the Court that it was equitable to allow the pursuer to bring the action rested upon the pursuer, and whether it was equitable to allow the action to be brought involved consideration of three factors, as set out by Lord Ross in Carson v Howard Doris Limited 1981 SC 278 at 282. Lord Ross described the three factors as "(1) the conduct of the pursuer since the accident and up to the time of his seeking the court's authority to bring the action out of time, including any explanation for his not having brought the action timeously; (2) any likely prejudice to the pursuer if authority to bring the action out of time were not granted; and (3) any likely prejudice to the other party from granting authority to bring the action out of time". Lord Ross went on to add that each case depended on its own facts and there may well be other factors to be considered also in any particular case. In Carson Lord Ross allowed the pursuer to convene the third party as a defender out of time as the pursuer had provided a reasonable explanation for his failure to direct the action against the third party timeously and he could have been prejudiced had he not been allowed to bring the action against the third party as he would have had no other remedy. There was minimal prejudice to the third party, who was already in the process and under the necessity of investigating the accident.[7] Mr Hofford then went on to examine various decisions, in both the Inner House and the Outer House, dealing with the exercise of the equitable jurisdiction under section 19A. In Munro v Anderson-Grice Engineering Co Ltd 1983 SLT 295 Lord Grieve dismissed an action raised in 1980 for damages for vibration white finger in which exposure had ceased in 1973. In early 1974 the pursuer had been advised by his solicitors that a claim against the defenders was unlikely to succeed. The pursuer argued that he had acted reasonably by accepting the advice of his solicitor in 1974 and that it was equitable to allow the action to proceed. The defenders argued that there was no explanation why, having decided not to proceed in 1974, the pursuer had raised the action in 1980. In refusing to exercise his discretion in favour of allowing the pursuer to bring the action Lord Grieve said at page 298:
"In my opinion however it does not follow that because at some stage within the triennium a pursuer has taken a reasonable course of action which results in a failure to raise an action timeously, that it must be considered equitable to allow him to proceed with an action after the expiry of the three year limitation period. ... No doubt the reasonableness of the pursuer's actings will have a bearing on the equities, but for the latter to be properly considered by the court circumstances beyond those averred by the pursuer in this case are required".
In Whyte v Walker 1983 SLT 441 the pursuer was injured in a road traffic accident on 8 July 1976 and raised an action on 19 June 1981 alleging that his original solicitors wrote to the defender on two occasions in 1977 claiming damages and that the defender had written on 5 December 1977 to say that the matter was in the hands of his insurers. The insurers stated that they knew nothing of the claim until they received a letter from the pursuer's solicitors dated 28 May 1980. In following the approach adopted by Lord Ross in Carson Lord Cowie stated at page 443 that it was not good enough for a pursuer simply to leave the matter in his solicitor's hands and make at the most two inquiries about how the case was proceeding. As regards any likely prejudice to the pursuer, his Lordship stated that he would have a cast iron case against his original solicitors for professional negligence and that that was a relevant factor to be taken into account by the court. It was further held (at page 444) that if the case were allowed to proceed there would be likely to be a significant degree of prejudice to the defender's insurers.
[8] In Donald v Rutherford 1984 SLT 70 the pursuer was a pedestrian injured in a road traffic accident on 3 November 1975 who raised an action on 13 February 1981. The failure to raise a timeous action was attributable to the fault of his former solicitors. The Extra Division reversed the decision of the Lord Ordinary to allow the action to proceed out of time as he had misdirected himself on a material matter of fact. At page 75 Lord Cameron stated that, in his opinion, the words "it seems equitable" in section 19A(1) meant and could only mean that the discretion thereby conferred upon the court was unfettered. At page 77 he stated:
"In the present case it would appear clear enough that no personal blame can properly be laid on the shoulders of the respondent himself, but he is answerable for the acts of his agents. Their failure to serve the 'protective writ' was the cause of the failure to proceed within the triennium, and their responsibility to the respondent for that failure and consequent liability in damages would, at least so far as pleadings and admitted correspondence disclose, appear to be beyond dispute."
At page 78 Lord Dunpark stated:
"I regard the fact that no blame can be attached to the pursuer for his solicitors' failure to raise his action timeously as cancelled out by the fact that neither the defender nor his insurance company contributed in any way to that failure. The sole fault for that failure was that of the pursuer's solicitors who, for this purpose, are his alter ego."
"In every case of this nature there is a common theme. If the pursuer is granted the court's indulgence the defender loses a cast iron case, since but for that he would be legally free from the claim, and he is faced with the risk of losing the case with the consequential financial repercussions. That is a factor to be taken into account. He has no way out of that. On the other hand, if the pursuer is not granted the court's indulgence his claim against the defender comes to an end, and the defender is freed and relieved of a claim which might have been a perfectly justifiable one. However, the pursuer might have, as here, an action against his solicitors for professional negligence which might or might not recoup him in whole or in part for the damages which he could no longer obtain from the defender. There are imponderables about such an alternative, and its outcome can vary from case to case. Neither of these contrasting considerations is in itself conclusive, and the weights to be applied to them respectively will again depend on the circumstances. In my opinion it is not illegitimate to have in consideration the strength of the case against the third party and the likelihood of a successful prosecution of such a case, but again that is just a factor. Another consideration (although the Sheriff Principal rejected it - wrongly in my view), even if it only carries a little weight, is the burden of the expenses the defenders have to bear even if they are successful, since the pursuer is a legally assisted person. This in a way is merely consequential on the major issue, but it is entitled to be taken into account for what it is worth."
At page 56 Lord Hunter stated:
"...the pursuer, although he may have been personally blameless, is answerable for the acts of his agents. Putting the matter very broadly, the responsibility for the late raising of the present action rests firmly on the shoulders of the pursuer's former solicitors, for whose acts the pursuer is answerable."
"The discretion which is to be exercised under section 19A(1) has been said to be unfettered, and it is necessary to balance all the circumstances of the case and also the interests of all parties concerned ... It is for the pursuer to satisfy us that it would be equitable to allow him to proceed with his action ..."
In Clark v McLean 1994 SC 410 a female pursuer born in 1966 who was involved in a road traffic accident allegedly caused by the fault of her boyfriend in 1983 brought an action against him in 1988, one year after the expiry of the triennium (which had begun to run when she reached the age of 18 in 1984). An action of damages which she had raised against her former solicitors for professional negligence had been sisted pending the outcome of the action against her boyfriend. The Temporary Lord Ordinary, on being moved to allow the action to be brought under section 19A, allowed a proof before answer, leaving all pleas standing. The Inner House allowed a reclaiming motion against that decision and dismissed the action. At page 413D Lord MacLean, delivering the Opinion of the Court, stated:
"The onus being on the pursuer to satisfy the court that the terms of section 19A(1) should be applied, the court must first determine whether the pursuer's case in relation to the application of that section is relevant. If the case is relevant, the court must consider whether or not there is sufficient agreement between the parties on the material facts for it to decide upon the applicability of the section. If there is not, then ... the court should allow a preliminary proof on these facts. If, on the other hand, there is sufficient agreement on the material facts, then the court must proceed to adjudicate upon the application of section 19A(1). In our view, it should seldom be necessary for the court, in an action of damages for personal injuries involving only two parties, to allow a proof with all pleas standing, including those relating to the question of time bar and those relating to the merits of the action."
"It appears to me that, in a case like the present, where there is an admitted culpable act of negligence by the pursuer's representatives in not raising the action timeously, it is simply insufficient to aver the fact of that negligent act. Frequently where the power conferred by section 19A is prayed in aid by a pursuer, there has been an oversight or omission by those acting for him to raise the action timeously. The court's discretionary power, conferred by section 19A, is to be exercised when it seems to the court that it is equitable to do so. Before the pursuer can succeed in persuading the court to exercise the power he must, in my judgment, set out appropriate facts and circumstances which point to it being equitable, notwithstanding the oversight or omission by those acting on his behalf, that the action should be allowed to proceed. Those facts and circumstances will include, no doubt among other things, the reason for the oversight or omission, how excusable the oversight or omission was, and the prejudice to the pursuer (including the extent of any such prejudice) if the action were not to proceed. It is clear from the authorities, cited by counsel for the defenders, that these factors have to be averred with some degree of specification (and if necessary proved). The section 19A power cannot, in my judgment, be regarded as simply providing an automatic release from the consequences of a pursuer's representative's negligence. In the present case, even after amendment, the pursuer's pleadings, in my opinion, provide no basis which would justify the court being persuaded that, notwithstanding the oversight or omission in this case, it would be equitable for the pursuer to be allowed to bring her action. This is particularly so where it is accepted, as it was, that a refusal to exercise the section 19A power would involve no real prejudice to the pursuer."
"The appellants contend that the section should be construed or applied not only strictly but, in the interest of public policy, restrictively. So far as construction is concerned, the words of the section are clear and unambiguous. It is impossible to construe the word 'equitable' narrowly or liberally. It is either equitable or inequitable to disapply the fixed time limit in any given set of circumstances, although different people may have different views of what is equitable in particular cases. The appellants argued that section 2D should be confined to 'exceptional cases'. That is precisely what the Act provides, since every case in which the court decides that the application of the norm would be inequitable is, ex hypothesi, an exceptional case".
In Thompson v Brown [1981] 1 WLR 744 the House of Lords, reversing the decision of the judge of first instance not to allow the action to proceed on the ground that the plaintiff would have an unanswerable claim in negligence against his solicitors, emphasised that the court's discretion under section 2D was unfettered. Lord Diplock stated at page 752E-F:
"The onus of showing that in the particular circumstances of the case it would be equitable to make an exception lies upon the plaintiff; but, subject to that, the Court's discretion to make or refuse an order if it considers it equitable to do so is, in my view, unfettered. The conduct of the parties, as well as the prejudice one or other will suffer if the court does or does not make an order, are all to be put into the balance in order to see which way it falls."
[14] Mr Hofford then turned to examine the factors which the pursuer prayed in aid in asking the court to exercise its discretion in his favour under section 19A and allow him to bring the action. The first factor, as averred at page 26C-D, was that there had been no unreasonable delay on the part of the pursuer in seeking legal redress for the loss which he had suffered and continued to suffer as a result of the teachers' negligence and the negligence of the learning support staff. Mr Hofford commented as follows upon this factor. The psychologist's report dated 17 November 1996 diagnosed the pursuer as suffering from motor dyslexia. Even before that his parents were concerned that he was dyslexic, so knowledge of the condition went back a long way. Although the pursuer had access to legal advice from the first agents, no one seemed to have cottoned onto the problem of time bar. The only mention of this was in the first agents' letter in which they washed their hands of the case. One would have thought that this was something that the pursuer would have been aware of and would have passed on to the second agents. He paid for the opinion of counsel and an eventual summons, so any argument that he could not afford to instruct a summons did not hold water. He had missed the triennium by a substantial amount. One would have imagined that he would have reported to his solicitor what the problem was and that he would have received advice on time bar. He did not issue a protective writ or seek emergency legal aid. No one seems to have thought about time bar, only about the prospects of success in this interesting piece of litigation. The learning support staff had been brought into the action only in January 2004 by way of Minute of Amendment. (When I raised the question whether the correct procedure had been followed, Mr Hofford accepted that it had not, and that the question whether the action was time barred against the learning support staff should have been determined at the time that the motion to amend was made. Notwithstanding this, it was agreed between the parties that the question whether the action was time barred against the learning support staff could still be argued and determined on the procedure roll.) If it was bad news about the teachers so far as time bar was concerned, then it was even worse news about the learning support staff.
[15] The second factor relied upon by the pursuer was, as averred at page 26D-E, that, through no fault of his own, he had received a poor professional service from the first agents. Mr Hofford pointed out that the first agents had withdrawn from acting on 2 August 2000, well outwith the triennium. He informed me that the pursuer had raised an action against them for professional negligence. He did not know how such an action would be funded. He pointed out that there was no mention in the pleadings of any specific oversight on the part of the first agents: it appeared that it was simply that no one had his eye on the ball. The action which the pursuer had brought against the first agents constituted a second string to his bow: there was no equivalent second string for the defenders, who simply relied upon the statutory defence of time bar.
[16] The third factor relied upon by the pursuer was, as averred at page 27A-28B, that the defenders have not suffered material prejudice as a result of the passage of time. He averred that the defenders could interview and obtain precognitions from the teachers and learning support staff and that it was likely that the teachers would have a clear recollection of the pursuer for all the wrong reasons. During the material period the defenders had a practice of maintaining a guidance/learning support file for each of their pupils (including inter alios the pursuer) which chronicled his or her disciplinary problems and it was believed likely that the pursuer's file was thick because he had a large number of disciplinary problems. The defenders had access to his file and could make averments based on the information therein. They also had access to the regular academic reports written by teachers and sent to the pursuer's parents. They could arrange to have the pursuer examined by an educational psychologist of their choice. Mr Hofford emphasised that the period covered by the alleged negligence in this case was twelve years, between 1984 and 1996. He said he would be surprised if the pursuer was seriously claiming that the staff would have a clear recollection of him: he was not an evil boy, just marginally below average. There was nothing to compel the staff to remember this particular pupil. Many of the teachers had not been traced yet. The fact that the first intimation of the claim came with the service of the summons created problems as there had been no preparation by the defenders before the expiry of the triennium. It was likely that it would be at least another year before the proof began. The prejudice which the defenders would suffer if the pursuer were allowed to bring the action would be that they would lose their defence under section 17 of the 1973 Act. The pursuer was legally aided and the defenders would not recover all, or perhaps any, of their expenses, even if they were wholly successful.
[17] The fourth factor relied upon by the pursuer, as averred at page 28C, was that there would be considerable prejudice to him if he were not allowed to bring the action out of time. He avers that he suffered a miserable time at his schools, that his whole future life has been blighted by the fact that the bulk of his school career was wasted, and he would be prejudiced if his claim for compensation were to be dismissed. Mr Hofford said these averments were over-egging the position slightly. The pursuer had a good job as a civil servant. By his own admission the action was a pioneering piece of litigation and his prospects were therefore weakened. This was a weak case to begin with. As Lord Diplock remarked in Thompson v Brown (supra), at page 750E-F, "the degree to which the plaintiff would be prejudiced by being prevented from proceeding with his action will be affected by how good or bad would have been his prospects of success."
[18] Mr Hofford concluded his submission by underlining that, as the cases to which he had referred showed, the fault of a solicitor as the agent of a pursuer was to be regarded as the fault of the pursuer himself. In any event the letter sent by the first agents to the pursuer on 2 August 2000 alerted him to the problem of time bar, even if he did not know what that involved. When the factors favouring the parties were listed all factors favoured the defenders. It would not be a just exercise of the discretionary jurisdiction under section 19A to allow the pursuer to bring this action.
Submissions for the pursuer
[19] Mr Woolman began his submission by moving me to exercise my discretion under section 19A in favour of the pursuer by allowing the action to be brought. Alternatively, if any factual issues remained for resolution, a preliminary proof before answer on the issue of time bar should be allowed.[20] Mr Hofford accepted that there was a measure of agreement between the parties. First, it was accepted that the onus was on the pursuer to satisfy the court that it would be equitable to allow him to bring the action. Secondly, it was accepted that the discretion conferred upon the court under section 19A was unfettered, although Mr Woolman went on to submit that the approach of Lord Ross in Carson v Howard Doris Limited (supra) may be thought to be useful. Third, it was accepted that the action was of a pioneering nature. Fourth, it was accepted that the action became time barred in November 1999. (It was likely that the psychologist's report of 17 November 1996 was received a day or two after its date.)
[21] Mr Woolman made clear that he took no issue with any of the judicial dicta which had been relied upon by Mr Hofford. A convenient summary of the whole law was to be found in Chapter 12 of Johnston, Prescription and Limitation (1999). Reference was made to paragraph 12.30 at page 242, where the learned author stated:
"If it is clear on the pleadings that the pursuer cannot satisfy section 19A, the court can dismiss the action at procedure roll. The same will apply if the admissions in the pleadings extend far enough to make proof unnecessary. But where there is any doubt about the facts which bear on the exercise of the court's discretion, clearly the case cannot be decided on the pleadings alone. Here a preliminary proof on the question of limitation is likely to be appropriate."
In Wrightson v AOC International Limited (20 October 1995, unreported) Lord Gill allowed a preliminary proof before answer on the matters raised by the parties under section 19A as he considered that there should be an inquiry into specific material facts on which the parties were not agreed. These related to the pursuer's prospects of success against his former English solicitors or counsel and his former Scottish solicitors, as well as the extent to which he would suffer inconvenience and delay in prosecuting an action against any of his previous advisers, even if he did have good prospects of success.
[22] Attention had been drawn to the pioneering nature of the present action. Mr Woolman said that there had been no previous case of this nature in Scotland, but there had been such a case in England. The decision on 27 July 2000 of a Judicial Committee of seven judges in the House of Lords in Phelps v Hillingdon London Borough Council [2001] 2 AC 619 was the first definitive judgment that a claim of this sort could arise.[23] Turning to consider the averments made by the pursuer in Condescendence 11, Mr Woolman submitted that the pursuer personally was clearly not to blame. On the face of it there appeared to have been a departure from the standards of normal professional competence on the part of the first agents. The conduct of the second agents was appropriate in all the circumstances. The solicitor required to be ultra cautious when raising an action of negligence against a professional person as the bringing of the action could affect his reputation and his insurance. On the other hand, a pursuer could not delay instructing an expert report which was required for the purpose of raising an action of professional negligence. If the pursuer in this case had to sue the first agents, the action against them would involve two professional negligence claims (the first against the teachers and learning support staff in his schools and the second against the first agents), with complications in each claim, and in which success would be uncertain. In such an action the pursuer would require to establish that he had reasonable prospects of success against the education authority, lead expert evidence on negligence of the first agents and deal with questions of causation and loss. The difficulties in the present action would be translated into the other action. There was not a cast iron case on causation and loss. The pursuer would require to prove that the first agents were under a duty to raise a protective action within the triennium. As he could not finance a long proof against the first agents, and would require to obtain legal aid in order to proceed against them, further delay and expense would be involved.
[24] So far as the question of prejudice to the defenders was concerned, it was not plain that the teachers would not be able to remember the pursuer having regard to the averments made in Condescendence 11. In addition, there appeared to be extensive records relating to his schooling at the two schools which he attended.
[25] Mr Woolman submitted that in this case, on its special facts, I should exercise my discretion in favour of the pursuer and allow him to bring the action. If I were not prepared to do that on the basis of the averments made by him, I would require to consider the question whether a preliminary proof should be allowed before I reached a decision whether or not to allow the pursuer to bring the action. The points to be determined at such a preliminary proof would be (1) whether a speculative action should have been raised; (2) whether a second expert report was required before the action was raised against the defenders; (3) the extent of the parents' knowledge about the possibility of the pursuer suffering from dyslexia; (4) whether there was a cast iron case against the first agents for professional negligence; and (5) whether it was possible to trace named teachers, and whether their memory has been diminished by the passage of time. Mr Woolman emphasised that his primary position was that I could decide the section 19A issue on the material in the pleadings, but, if not, a preliminary proof before answer on that issue should be allowed. Insofar as the action was directed against the learning support staff, Mr Woolman advised me that when the amendment which brought them into the action was allowed in January 2004 it was agreed between counsel that the question whether the action should be allowed to be brought against them under section 19A should be left over for decision at the procedure roll hearing. Although he accepted that the court had no discretion once the amendment had been allowed (Johnston on Prescription and Limitation, para.20.22), he stated that he would not wish to take advantage of a mistaken agreement which had been entered into by both counsel. If the action was not allowed to be brought against the teachers, then the action against the learning support staff automatically fell. If the action were allowed to be brought against the teachers, a decision would have to be reached on whether it should also be allowed to be brought against the learning support staff, who were brought into the action only in January 2004.
[26] At the conclusion of Mr Woolman's submissions Mr Hofford stated that, although the defenders on record denied the pursuer's averments in Condescendence 11, he wished to make it quite clear, that for the purposes of the section 19A issue, he was accepting pro veritate the pursuer's averments in Condescendence 11 and asking that I should reach a decision under section 19A on the basis of those averments.
Discussion and conclusion on limitation
[27] The onus is on the pursuer to satisfy the court that it is equitable to allow him to bring the action notwithstanding that it is time-barred under section 17 of the 1973 Act. While section 19A confers an unfettered discretion upon the court, it is generally relevant to consider the conduct of the parties, the prejudice to the pursuer if he were not allowed to bring the action and the prejudice to the defenders if he were allowed to bring the action. I must first determine whether the pursuer's averments in relation to section 19A are relevant. If they are, and there is sufficient agreement between the parties on the material facts, I must then decide on the basis of the material available to me whether it would be equitable to allow the pursuer to bring the action out of time. If there is not sufficient agreement between the parties on the material facts, then I would require to allow a preliminary proof before answer on the question whether it is equitable to allow the pursuer to bring the action out of time.[28] It was never submitted by Mr Woolman that the pursuer's averments relating to section 19A were irrelevant, and in any event I am satisfied that they are relevant. I must therefore consider whether those averments, which Mr Hofford explicitly stated he did not dispute for the purposes of the section 19A question, are sufficient to enable me to reach a determination under section 19A. I am satisfied that they are. I do not think that any of the five points which Mr Woolman submitted would require to be dealt with at a preliminary proof before answer would advance the matter. It seems to me that the pursuer has sought, in support of his case under section 19A, to make very full averments in Condescendence 11. In my view those averments are sufficient to enable me to exercise the jurisdiction conferred by section 19A without the need for any evidence from witnesses. That being so, I now turn to consider whether I should exercise my discretion in favour of the pursuer and allow him to bring the action out of time.
[29] I shall first examine the conduct of the parties. It is quite clear that no blame can be attached to the defenders for the action not having been brought in time. This is not a case where, for example, the defenders misled the pursuer on a material fact or were obstructive in providing him with necessary information for the purpose of raising the action. On the averments made by the pursuer the action was not raised timeously due to the fault of the first agents, whom he consulted about his claim as early as August 1997, well within the triennium. He must accept responsibility for their failure to raise an action in time.
[30] So far as the question of likely prejudice to the pursuer if he is not allowed to bring the action out of time is concerned, he would have no right to damages against the defenders, but there is the possibility of an alternative remedy against the first agents. The fact that there is such an alternative remedy does not in itself mean that the pursuer should not be allowed to bring an action against the defenders out of time (Thompson v Brown, supra) but it is a highly relevant consideration for me in deciding whether I should exercise my discretion to allow the pursuer to bring the action against the defenders out of time. I accept that he will suffer some prejudice if he has to proceed with an action for professional negligence against the first agents. He will not require to instruct strange solicitors, as he already has new solicitors acting for him, but there will be some delay and he may incur a liability for the expenses of this action. It is true that any difficulties which he faces in this action will be transposed into the action against the first agents, but any difficulties in this action are ones which he would always have had to confront. Although I am not in a position to make a judgement of his prospects of success in an action against the first agents as I do not know what, if any, defence may be put forward by them, it appears from the pursuer's averments in Condescendence 11 that this is a plain case of solicitors who were instructed to prosecute a claim having failed to raise an action in time.
[31] So far as any likely prejudice to the defenders if the pursuer is allowed to bring the action out of time is concerned, the major prejudice which they will suffer is the usual one of losing their immunity from suit under section 17 of the 1973 Act. This is considered by the pursuer to be a pioneering piece of litigation, and it is obvious that any proof would be lengthy. All the teachers who could be traced would be likely to give evidence and there would also have to be expert evidence about dyslexia. The expenses of such a proof are likely to be high, and the defenders are unlikely, even if they were to be successful, to recover their expenses against the pursuer, who is legally aided. There are potential difficulties, arising from the passage of time, about the availability and recollection of the teachers and learning support staff, but I do not think that the defenders can make much of any such potential difficulties, which seem to me to affect the pursuer as much as they affect the defenders.
[32] Accordingly, I am of the view that this is a case where the responsibility for the action not having been raised in time rests entirely with the pursuer as responsible for the first agents, that he has a remedy against them if he is not allowed to bring this action out of time and that, if he were allowed to bring the action out of time, the defenders would be prejudiced by losing their statutory defence and having to prepare for and contest a lengthy proof, the expenses of which they may not recover even if successful. I therefore conclude that it would not be equitable to allow the pursuer to bring this action out of time under section 19A and I shall refuse to allow him to do so.
Relevancy
[33] The submissions on relevancy were notable for their brevity.
Submissions for the defenders on relevancy
[34] The principal ground upon which Mr Hofford challenged the relevancy of the pursuer's averments of negligence against the teachers and learning support staff was that he had failed to aver the basis upon which it could be maintained that at the material time there was knowledge within the relevant professions sufficient to constitute a duty upon teachers or learning support staff to identify the condition of motor dyslexia. He submitted that without the appropriate averments of knowledge the duties pleaded by the pursuer were irrelevant. He posed the question, how would a teacher (and, presumably, a member of the learning support staff) know that someone suffered from motor dyslexia? On what basis would the teacher or member of learning support staff have to know about motor dyslexia? In addition, he submitted that the pursuer provided no specification of the objective characteristics of "the pattern" of motor dyslexia by reference to which one could say whether or not he shared the pattern.
Submissions for the pursuer on relevancy
[35] Mr Woolman submitted that the averments in Condescendence 2 set out sufficiently the characteristics of motor dyslexia. So far as the question of knowledge on the part of the teachers and learning support staff was concerned, there was no need for the pursuer to aver a date when knowledge arose, as was required, for example, in cases of vibration white finger or asbestosis. He pointed out that in Answer 2 the defenders averred that at the material time there was nothing in the pursuer's progress through primary and secondary school to suggest dyslexic difficulties. Moreover, in Answer 4 it was averred that there were legitimate reasons, not necessarily of a dyslexic character, which accounted for the pursuer's under-performance at times between 1984 and 1996. On the face of the record, therefore, the defenders were well aware of what dyslexic difficulties involved.
Discussion and conclusion on relevancy
[36] In Phelps v Hillingdon LBC (supra) at page 666H-667C Lord Nicholls of Birkenhead stated:
"Does a teacher owe a common law duty of care to a pupil who is obviously having difficulty and not making the progress he should? Teachers are not educational psychologists, and they are not to be treated as though they were. But they, too, are professionals. It would make no sense to say that educational psychologists owe a duty of care to under-performing pupils they are asked to assess, but teachers owe no duty of care to under-performing pupils in their charge or about whom they give educational advice under the statutory scheme. In the same way as an educational psychologist owes a duty of care in respect of matters falling within the scope of his professional expertise, by parity of reasoning so must a teacher owe a duty of care to a child with learning difficulties in respect of matters which fall within his field of competence. A teacher must exercise due skill and care to respond appropriately to the manifest problems of such a child, including informing the head teacher or others about the child's problems and carrying out any instructions he is given. If he does not do so, he will be in breach of the duty he owes to the child, as well as being in breach of the duties he owes to his employer, and his employer will be vicariously liable accordingly."
It seems to me that what was said in the above passage about teachers applies equally to learning support staff.
[37] Having regard to the decision of the House of Lords in Phelps, and in particular, to what was said by Lord Nicholls of Birkenhead in the above passage, I do not think that it is possible at this stage to determine the relevancy of the averments of negligence made against the teachers and learning support staff in Condescendence 11. Had I concluded that the pursuer should be allowed to bring this action out of time, I would have allowed a proof before answer.
Decision
[38] For the reasons which I have given above, I shall repel the third and fifth pleas-in-law for the pursuer, sustain the first and second pleas-in-law for the defenders and dismiss the action.
