Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 110
	OPINION OF LADY CLARK OF CALTON in the cause RAYMOND ALLAN SINCLAIR McGREGOR Pursuer; against ALPHA AIRPORTS GROUP PLC Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Party

Defender: Dawson; Simpson & Marwick

10 August 2010

Procedural History

[1] This case has a complex procedural history but it is not necessary for present purposes to summarise the full history. A third diet of proof has been fixed for 23 November 2010.

[2] It should be noted that in the earlier stages of the pursuer's action, the pursuer had a legal aid certificate and was represented by solicitors and counsel. A summons in an action of reparation was served on the defenders on 2 June 2006. Defences were lodged and after various procedure, the cause was appointed for a proof on 15 May 2007 on the basis of pleadings in the Closed Record 11 of process. The pleadings in said Closed Record remain the basis of the pursuer's action. I refer in more detail to these pleadings in paragraph [6]. The said proof diet was discharged. The reason for the discharge was the withdrawal from acting by the solicitors and counsel for the pursuer. The pursuer was not prepared to accept advice from his legal advisors in relation to settlement of the action.

[3] Thereafter the pursuer made various unsuccessful attempts to obtain legal representation. There was some uncertainty about whether the pursuer continued to have a legal aid certificate. At various procedural hearings, the pursuer appeared as a party litigant. Difficulties arose inter alia about the ability of the pursuer to travel to Edinburgh for procedural hearings as a result of his medical problems. In order to assist the pursuer, some hearings were ordered by interlocutor authorising the pursuer to attend at Inverness Sheriff Court with the hearing before the Court of Session in Edinburgh using a video link. This was ordered under the provisions of Rule of Court 93. As part of the procedural history, the defenders by motion sought an order for caution. This was refused by interlocutor dated 25 June 2009.

[4] The second diet of proof was due to commence on 1 December 2009. The pursuer appeared as a party litigant. The defenders were represented by counsel. On said date, Lord Bannatyne ex proprio motu discharged the second diet of proof. Following upon the discharge, motions on behalf of the defenders for the expenses of the discharge and for caution for £25,000 for expenses were heard on 15 March 2010. Lord Bannatyne issued an Opinion dated 8 April 2010. That Opinion forms the background to the motion which came before me on 14 July 2010.

[5] The motion as enrolled by the pursuer stated "that the pursuer be allowed a Minute of Amendment". Counsel for the defenders submitted that the motion was ambiguous. Following discussion, the motion was clarified by the pursuer and amended by oral submission to have the Minute of Amendment 11 of process received. It was plain from the submissions by counsel for the defenders that there was fundamental opposition to this motion. I had concerns about the ability of the pursuer as a party litigant to deal with the oral submission at this significant procedural stage without any notice. The pursuer did not appear to have any understanding of the relevant law. The pursuer had been given every opportunity to try to obtain legal representation and advice but I considered that there was no realistic prospect of that being achieved. In order to assist the pursuer, counsel for the defenders agreed to provide a written submission in advance to give the pursuer the opportunity to read and consider it before he responded. That written submission is 41 of process. I would like to record my gratitude to the defenders' counsel for this courtesy and assistance. The pursuer's motion was continued until 16 July 2010. On that date I heard submissions from the pursuer and from counsel for the defenders.

The pleadings in the Closed Record No.11 of process

[6] The pleadings aver that:

"On or around 18^th June 2003 the pursuer was at work in the course of his employment with the defenders at Inverness Airport, Inverness. The pursuer was engaged in unpacking a delivery for British Airways Stores. The pursuer was under pressure of time to complete the said task. At about 3.20pm the pursuer was carrying two cases of juice cartons which weighed around 12kg each. As a result of carrying the two cases of juice cartons he felt pain in his back which has caused the following loss, injury and damage".

The pleadings further aver facts which led to the pursuer lifting two cases of juice cartons at the same time. It is further averred that as a result of the said accident the pursuer has suffered loss, injury and damage which include acute back pain and other problems suffered by the pursuer. It is averred in Statement 6 that the accident was caused by the defenders' breach of Regulation 4 of the Manual Handling Operations Regulation 1992 and the fault of the defenders at common law.

The Minute of Amendment

[7] The Minute of Amendment which the pursuer asked to be received sought to introduce averments as follows:

"1. The pursuer in this case avers that the defender was in breach of its statutory duty under the Manual Handling Regulations 1992 [SI 2793] [as amended by paragraph 4 of the Health and Safety [Miscellaneous Amendments] 2002] ['the Regulations']. In the alternative the pursuer claims that the defender was at fault at common law in relation to the incident. He seeks reparation on these bases for back injury and ensuing depression suffered. As a result of lifting catering and in flight bars, up and down aircraft stairs airside and landside weighing 80kg as shown to do so by management and also both defenders' witness and other food and equipment handlers employed by the company on a daily basis from 1999 until 2003 in the course of my employment.

2. That during employment from 1999 till 2003 it was company practice to work shifts without sufficient rest periods normally working a 8 hour shift finishing at 2300 hrs and restarting at 0415 hrs without sleep again both defence witness done the same as did other staff.

3. That during my employment we did not use a tachograph on a daily basis as a result no records to show hours worked as required by law again by all driving staff including both defence witnesses".

Submissions by counsel for the defenders

[8] Counsel for the defenders adhered to his written submissions 41 of process. His submissions may be summarised under the following headings:

1. The general legal test to be applied when determining whether an amendment should be allowed. He submitted that the decision is within the discretion of the Court in accordance with well recognised legal principles.

2. The late timing of the proposed amendment and time bar problems.

3. Delay on the part of the pursuer.

4. The nature of the proposed change to the case being advanced in the Minute of Amendment relates to curing a radical incompetence in the case and a fundamental change of case.

5. Relevancy of the proposed new averments.

6. No proper factual basis for the averments sought to be introduced.

7. Prejudice to the defenders in having to investigate the new cases.

8. Financial prejudice to the defenders if the amendment is allowed.

9. Potential prejudice to the pursuer in the event that the amendment is not allowed.

10. The timing of the opposition

[9] The undernoted cases were referred to by counsel for the defenders.

1. Raymond McGregor v Alpha Airports plc [2010] CSOH 51

2. Taylor v Glasgow City Council 2002 SC 364

3. Pompa's Trustees v The Magistrates of Edinburgh 1942 SC 119

4. Boyle v Glasgow Corporation 1975 SC 238

5. Hynd v West Fife Co-operative Limited 1980 SLT 41

6. Greenhorn v J Smart & Co Contractors Ltd 1979 SC 427

7. Dryburgh v NCB 1962 SC 485

8. Brady v Clydeport Stevedoring Services Ltd 1987 SLT 645.

9. Eric Hendrie (AP) v Gray and Dick Ltd unreported 10 July 1997.

Submissions by the pursuer

[10] The pursuer did not attempt to engage with or respond to the detailed submissions by counsel for the defenders. His submission was that he was a lay person who had worked for many years for the defenders and had been injured by their alleged illegal working practices as described in the Minute of Amendment. He was critical of the defenders for using what he regarded as "technical submissions to escape liability". The pursuer said his position was simple. He wished to come to the court to "tell the truth" about what had happened during his working life with the defenders. This had caused his medical problems which were now serious. He was critical of his former legal advisors and doctors. He submitted that the defenders had been well aware for a long time that he wished to lead evidence about a more extensive case as he had set out in the Minute of Amendment. He submitted that in all the circumstances he should be permitted to lead such evidence and that the Minute of Amendment should be allowed.

Discussion

[11] There are technical problems about the form of the Minute of Amendment but I consider that no purpose would be served in dealing with the issue on that basis. The real issue for decision is whether or not the pursuer should be allowed to embark upon an amendment process at this stage. I therefore focus on the substantive merits of the motion. In this case I do not consider that it would make any difference to the outcome whether the motion is framed as a motion to allow the amendment to be received in the commonly accepted form or whether the motion by the pursuer is for amendment.

[12] The decision as to whether to grant or refuse the motion by the pursuer, is a matter within my discretion. The defenders' counsel, under reference to Pompa's Trustees v The Magistrates of Edinburgh 1942 SC 119, submitted that the new averments come too late and that the new averments are an attempt to change the basis of the pursuer's case. I consider that this submission is well founded. The case on record is limited to the alleged negligence by the defenders on a single day, 18 June 2003, involving a single task of "carrying two cases of juice cartons which weighed around 12kg each". The new averments seek to introduce a case based on repeated lifting of weights of 18kg in various circumstances on a daily basis from 1999 until 2003 with insufficient rest periods. The mere fact that the Minute of Amendment still pleads a case under the Manual Handling Regulations 1992 and common law does not in my opinion mean that the amendment does not seek to change the basis of the case in a significant way. I consider that the three year limitation period would have expired in about 2006. The new facts averred in the Minute of Amendment are facts which, in my opinion, must have been within the pursuer's knowledge. This is not a complex action. No satisfactory explanation was given by the pursuer for the delay in bringing forward the Minute of Amendment. To the extent that any explanation was offered, the explanation appears to be that the pursuer told his solicitors and doctors about the problems of lifting over a long period but they not only did not respond to that but they "did not believe him".

[13] I consider that the Minute of Amendment attempts to introduce a new case based on new factual averments and not merely an additional ground of fault in relation to the single incident averred on 18 June 2003. It opens up new areas of investigation for the defenders about the alleged danger. The alleged danger shifts from juice boxes to a failure on a daily basis over a period of years in relation to lifting flight bars, the implications of shift patterns and the implications of not having proper tachograph records. As I have stated, the basis of the case on Record relates to the specific accident averred on 18 June 2003. That is very different from the new averments in the Minute of Amendment. The mere fact that the pursuer makes complaint in the Closed Record and in the Minute of Amendment about lifting heavy objects is in my opinion totally insufficient to prevent the new averments being categorised as a new case in fact and in law.

[14] Counsel for the defenders referred me to paragraph 49 of the Opinion of Lord Bannatyne. I am not bound by that Opinion but, for the reasons given, I respectfully agree with the views expressed in that paragraph. The pursuer has not apparently been influenced by the views expressed so clearly by Lord Bannatyne.

[15] It appears that the pursuer for a long period has been unhappy about the constraints and limitations of the case which is pled on Record in 11 of process. He may not understand the full legal implications but I consider that he does have some understanding that there may be difficulties in relation to the existing case on Record. The pursuer plainly wishes to lead evidence about wider matters and that wish underlies the Minute of Amendment. From the pursuer's perspective, he wishes to lead evidence before the Court about what happened during the years of his employment with the defenders which he believes led to his back and other medical problems. From the pursuer's perspective as a layperson, he may find it difficult to understand the reasons why we have written pleadings and not merely a proof at large about any matter a party wishes to bring to the attention of the Court in the course of the proof. There are inevitable constraints as a result of legal pleadings and the rules relating to timeous intimation of a case. In my opinion, these constraints exist for good reasons. Some party litigants may struggle with written pleadings and legal rules in an adversarial system. The pursuer in this case has had the advantage of legal aid and legal representation but has disagreed with legal advice which was given to him resulting in the withdrawal of legal representation. As a party litigant he has been left in a difficult position. Efforts have been made to assist him in various ways but the judge cannot act as a legal adviser to one of the parties. Our system is an adversarial system and the rules of pleading and general legal principles cannot be ignored. The defenders have also been left in a difficult position. They have to deal with a party litigant who is unlikely to be able to reimburse their expenses, should he be unsuccessful and an award of expenses be made in the defenders' favour. The case has taken a great deal of time and considerable expense has been incurred partly because of the pursuer's approach to the litigation.

[16] Counsel for the defenders submitted that the defenders would be prejudiced if they were required to investigate new factual matters raised in the Minute of Amendment after the passage of years. He did not submit that the defenders would be unable to carry out an investigation. I accept, as is obvious, that it would have been far easier for the defenders to carry out a relevant investigation if the matters had been raised timeously. I consider that there is some prejudice to the defenders in relation to this.

[17] Counsel also submitted that the defenders would be prejudiced because of the additional expense involved which would probably be irrecoverable because the pursuer has no means to meet the expenses. He submitted that the defenders have investigated the existing claim on Record and that has included the instruction of an ergonomist, an orthopaedic surgeon and a psychiatrist. I accept that the whole case would require to be re-investigated by the defenders and refocused with expert as well as factual witnesses if the Minute of Amendment was received or granted. The defenders have already incurred large irrecoverable costs in answering a case on Record which it appears that the pursuer does not wish to advance. I accept therefor that there is financial prejudice to the defenders.

[18] I also considered the issue of prejudice to the pursuer. I accept that if I refuse the pursuer's motion, he will not be able to have what he wants which is to present evidence to the Court about the wider matters in the Minute of Amendment. I cannot overlook, however, that this pursuer did have the assistance of legal advice and representation. His legal agents withdrew from acting in January 2009. Even at that stage, an amendment of the type proposed would in my opinion have been very late. The difficulties which now exist would have existed at that date. I assume that the facts have always been in the knowledge of the pursuer. It is not for me to speculate whether the pursuer always wished from the start of proceedings in 2006 or at some later stage wished his former legal advisers to include the type of averment contained in the Minute of Amendment. That is a matter between the pursuer and his former legal advisers. I am not in a position to know whether or not his legal advisers considered the wider case and decided it was not appropriate to make such a case. It is not my task in considering the pursuer's notion to investigate and assess the history of the pursuer's litigation in the hands of his former legal advisers. Whatever the reasons, no such case was advanced. It is advanced now by the pursuer after two diets of proof have been discharged and some years after the three year limitations period time bar provisions would operate. Any potential prejudice to the pursuer is not, in my opinion, a good reason in the circumstances of this case to persuade me to grant the pursuer's motion.

[19] Counsel for the defenders was also critical of the relevancy of the averments. He cited Brady v Clydeport Stevedoring Services Ltd 1987 SLT 645. I accept that criticisms may be made about the relevancy of the averments, for example, the lack of causal connection between the factors claimed in the Minute of Amendment to have caused the back injury and the depression. There is an obvious difficulty of reconciling the averments in the Minute of Amendment with the existing pleadings in the Closed Record. I consider that some of the criticisms made by counsel such as the failure to specify the provision in the 1992 Regulations and the version of the Regulations may be demanding a level of specification in the present case in optional procedure which is too high. If relevancy was the only difficulty in this case, it might be possible to find a way of dealing with that but relevancy is not the major difficulty for the pursuer. The relevancy problems which do exist merely add to the pursuer's difficulties when he asks me to exercise discretion in his favour.

[20] I consider that problems may arise because our system of written pleadings works on the assumption that counsel or a solicitor advocate in pleading a case are expected to plead a case responsibly on the basis of factual evidence available to them. That may not always be understood and observed by party litigants who do not have the same professional duty to the Court. Counsel for the defenders made detailed criticisms about what he perceived to be the lack of evidential basis in relation to the pursuer's existing averments and to the averments in the Minute of Amendment. I consider that this is a difficult matter to consider at the amendment stage. I was reluctant to enter upon a discussion with the pursuer to have him justify his averments. The pursuer, like any litigant, would be subject to the usual rules about disclosure at various stages of proceedings. In any event, I do not consider it necessary in this case as I have decided the case on other grounds.

[21] I have carefully considered the motion by the pursuer but for the reasons given, I refused the motion.