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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 51
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PD1/07
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OPINION OF LORD UIST
in the cause
AR
Pursuer
against
THE HIGHLAND
COUNCIL
Defenders
ннннннннннннннннн________________
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Pursuer: Brabender; Campbell Smith WS
Defenders: Lindsay; Ledingham Chalmers LLP
8 March 2007
Introduction
[1] The
pursuer, an 18 year old female, has raised the present action against the
defenders concluding for (1) г50,000 and (2) г20,000 in damages as a judicial
remedy in terms of section 8 of the Human Rights Act 1998 ("the 1998 Act"). She avers that in late 1996 or early 1997 she
moved from the south of England to Alness with her mother,
stepfather and brother. On 29 May 1997 she, along with her brother, was removed from the
care of her mother and stepfather by the defenders. She was looked after and accommodated by the
defenders from 29 May 1997 until in or about 2005 when
she became homeless and she remained looked after by the defenders until in or
about 6 January 2006, when she returned to the
care of her mother. From 29 May 1997 she
was accommodated by the defenders at a residential assessment centre for one
week and then accommodated with her first foster carers for between two and
three weeks. She was then accommodated
by her second foster carers until in or about March 2003, after which she was
accommodated by her third foster carers until in or about 2005, when she became
homeless. When she was accommodated by
the defenders she was suffering from a learning disability and had difficulties
in handwriting, fine motor skills and spelling. On or about 13 January 2000 grounds of
referral to the Children's Hearing were found established in respect of her and
she was made the subject of a supervision requirement, which continued until on
or about 27 September 2005. She was
allocated by the defenders a social worker who failed to carry out assessments
of her to ensure that she was being adequately cared for by her foster carers,
failed to carry out an assessment of her attachment to her mother, failed to
ensure that she maintained direct contact and personal relations with her
mother throughout the period she was looked after by the defenders and failed
to ensure that she received appropriate education having regard to her learning
disability. Between 29 May 1997 and December 2004 she was placed in educational
establishments owned and operated by the defenders which did not meet her needs
and did not provide education suitable for her learning disabilities (sic). Although she is a Roman Catholic the defenders
placed her with two sets of foster carers who were Protestants and failed to
facilitate her continuing to follow her religious persuasion throughout the
period she was looked after and accommodated. The defenders failed properly to assess the
various needs of the pursuer, failed to carry out a paediatric occupational
therapy assessment which would have indicated the level of care and education
required by her, failed to place her in foster placements which kept her safe,
failed to provide her with appropriate education having regard to her learning
disability, failed to ensure that she maintained direct contact and personal
relations with her mother throughout the period that she was looked after by
them and prevented her from having a relationship with her mother. From on or about 29
May 1997 until 6 January 2006 they prevented her from
having a family life with her mother, stepfather and brother. From the date of her brother's return to the
care of her mother on or about 17 February 2003 until 6 January 2006 they prevented her from having and maintaining a
family life with her brother. By
preventing her from having and maintaining a family life the defenders breached
Article 8 of the European Convention on Human Rights ("ECHR"). As a result of the acts and omissions of the
defenders' employees and the defenders' own acts and omissions she suffered and
is suffering from psychological and psychiatric injuries, namely, anxiety and
distress, depression, attachment disorder in respect of her relationship with
her mother and educational impairment. She seeks damages for solatium, loss of earnings and loss of employability, as well as
damages for breach of Article 8 of the ECHR so as to afford her just
satisfaction under section 8 of the 1998 Act.
[2] The
action has been raised as an action of damages for personal injuries under
Chapter 43 of the Rules of the Court of Session ("RCS"). It was raised on 4 January 2007 in order to
comply with the limitation period of one year in section 5(1)(a) of the 1998
Act in so far as the action is based on a breach of the ECHR. When the action was raised the pursuer had the
benefit of emergency legal aid cover. On
6 February 2007 the Scottish Legal Aid
Board ("SLAB"), following a review after an initial refusal of legal aid,
granted the pursuer a legal aid certificate to pursue the action in the sheriff
court. The reason given for refusing
legal aid to pursue the action in the Court of Session was: "The case has not
been quantified so it is not shown why the matter should be in the Court of
Session". Following upon receipt of that
decision the pursuer enrolled a motion to remit the cause to Inverness Sheriff
Court under section 14 of the Law Reform (Miscellaneous Provisions)
(Scotland) Act 1985 ("the 1985 Act"), which provides as follows:
"The Court of Session may in
relation to an action before it which could competently have been brought
before a sheriff remit the action (at its own instance or on the application of
any of the parties to the action) to the sheriff within whose jurisdiction the
action could have been brought where, in the opinion of the court, the nature
of the action makes it appropriate to do so."
Submission for
the pursuer
[3] In
moving the motion Miss Brabender for the pursuer explained that when the
pursuer applied for legal aid to raise the action in the Court of Session she
submitted to SLAB the Opinion of Counsel as to why the Court of Session was the
appropriate forum. The only ground upon
which SLAB had refused legal aid for the Court of Session was that the claim
had not been quantified. As the pursuer
had been granted legal aid only for proceedings in the sheriff court the
present motion had been brought before the court for the action to be remitted
to the sheriff court so that she could pursue it there with the benefit of
legal aid. The sheriff could competently
grant damages under section 7 of the 1998 Act by virtue of section 7(2) of that
Act and rule 3 of The Human Rights Act (Jurisdiction) (Scotland) Rules
2000 (SSI 2000/301).
Submission for
the defenders
[4] Mr
Lindsay for the defenders invited me to refuse the motion in hoc statu so that SLAB could then reconsider their decision to
grant legal aid only for the sheriff court. He submitted that Article 6 of the ECHR was
engaged as the action involved a civil right or obligation and the decision of
SLAB would have the effect of refusing the pursuer access to the courts if the
motion were to be refused as in practical terms she could not proceed with an
action in the Court of Session if she had legal aid restricted to proceedings
in the sheriff court. It was not part of
his submission that the issue of legal aid was irrelevant, but it did not
follow that a remit to the sheriff court should automatically be granted. The phrase "nature of the action" in section
14 of the 1985 Act could, under section 3 of the 1998 Act, be given a wide
construction so as to be read and given effect in a way which is compatible
with Article 6 of the ECHR. The phrase
could be construed so as to include the question of state funding for the
action.
[5] Mr
Lindsay's principal submission was that the pursuer was correct when she
identified the Court of Session as the appropriate forum for the action. The action raised the question of public law
duties incumbent upon the defenders and the interaction of those duties with
common law duties, the question of the retrospectivity of the 1998 Act (upon
which their Lordships in the House of Lords had expressed differing opinions)
and the controversial question of the duties on the defenders in respect of the
pursuer's religion. On no view could
this action be described as appropriate for the sheriff court. Although its value was uncertain, its subject
matter made it appropriate only for the Court of Session. If the action had been raised in the sheriff
court the sheriff would have been well entitled to remit it to the Court of
Session under section 37(1)(b) of the Sheriff Courts (Scotland) Act 1971 on the ground
that the importance or difficulty of the cause made it appropriate to do so. If the action were remitted to the sheriff
court counsel would still require to be involved and that would result in the
additional cost of their travel to and accommodation in Inverness. If the action remained in the Court of Session
it would be the intention of the defenders to enrol under rule 43.5 of the RCS
to have the action withdrawn from the procedure under Chapter 43 and appointed
to proceed as an ordinary action. All
these other factors outweighed that of the restricted legal aid certificate granted
to the pursuer and the motion should be refused.
Response for
the pursuer
[6] In
response Miss Brabender stated that she did not demur in any great way from the
submissions made by Mr Lindsay on the questions of novelty and difficulty. If the motion were refused, the pursuer would
go back to SLAB. It had already been
held by SLAB that the pursuer had probable cause to litigate and if the motion
were to be refused in hoc statu that
might give SLAB more of an open door to reconsider the legal aid application. The pursuer had been forced to enrol the
present motion because of the decision made by SLAB.
Decision
[7] I am
in no doubt that the pursuer's motion should be refused. In my opinion the nature of this action,
involving novel and difficult questions of law, makes it appropriate only for
the Court of Session and the Opinion of Counsel to that effect submitted along
with the pursuer's legal aid application was correct. Indeed, I think that the unusual nature
of this action qualifies it for the Court of Session more than many personal
injury actions, some of very low value, which are customarily raised here. I do not accept Mr Lindsay's submission that
the phrase "the nature of the action" in section 14 of the 1985 Act can be
read as covering the pursuer's entitlement to legal aid. While section 3 of the 1998 Act provides that
primary legislation must be read and given effect in a way which is compatible
with Convention rights, it does not permit a phrase to be read as meaning
something wholly different from, or the opposite of, what it means. I do not think that, applying section 3 of the
1998 Act, the phrase "the nature of the action" can be read as including a
party's entitlement to legal aid. It
seems to me that the phrase "the nature of the action" is purposely restrictive
and that it cannot be extended to mean something such as "the whole
circumstances of the case". Section 14
of the 1985 Act was, in my opinion, enacted to provide that the Court of
Session could remit to the sheriff court actions whose nature made them
inappropriate for the Court of Session and appropriate for the sheriff court. I do not see how, even on the most liberal of
constructions, the phrase "the nature of the action" can be extended to include
the personal circumstances of a party and his or her eligibility for legal aid.
It follows that I do not accept that
this motion should be refused in hoc
statu: that would be appropriate only if I had reason to think that the
nature of the action were likely to change in the future, and I have no basis
for reaching such a conclusion.
[8] It is
for the reasons identified by Mr Lindsay that I think that the only appropriate
forum for this action is the Court of Session. The questions of the public and common law
duties incumbent on the defenders, the retrospectivity of the 1998 Act and
the duties of the defenders in relation to the pursuer's practice of her
religion are all matters which should be decided in the Court of Session. These issues are wholly inappropriate for
decision in the sheriff court. Miss
Brabender did not demur from Mr Lindsay's submission that the nature of
this action is such that it is inappropriate for the procedure under Chapter 43
of the RCS and that it should be appointed to proceed as an ordinary action. It may well be that the novelty and importance
of the legal questions raised make it appropriate for it to be appointed to
proceed as an ordinary action, but that is a question which will require to be
decided if and when the appropriate motion comes before the court.
[9] So far
as the decision of SLAB granting legal aid for sheriff court proceedings only
is concerned, I have great difficulty in understanding the reason which they
have provided for that decision. As
stated above, the reason is that the case has not been quantified, so it is not
shown why the matter should be in the Court of Session. It seems to me from the reason which they have
provided that the only basis for their decision is the lack of quantification
of the claim. If that were a sound
reason for refusing legal aid for a personal injury action in the Court of
Session I doubt whether any personal injury case would qualify for legal aid
here as every claim for solatium is
illiquid and therefore unquantified. Moreover, it appears from the single reason
given for the decision that SLAB have had no regard to the novelty, difficulty
and importance of the legal issues raised in this action and, accordingly, that
they have left out of account highly relevant factors in reaching their
decision. As SLAB have accepted that the
pursuer has probable cause to litigate and I have now decided that the only
appropriate forum for this action is the Court of Session, I would hope that
SLAB will now reconsider their decision to grant legal aid for sheriff court
proceedings only. If they were now to
persist in that decision there is the possibility that it could be considered
to be irrational or perverse and also as amounting to a refusal of access to
the courts to the pursuer and therefore a contravention of Article 6 of the
ECHR: see Airey v Ireland [1979] 2 EHRR 305.
