Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 24

 

A605/05

OPINION OF LORD STEWART

In the cause

JILL CLARK (AP)

Pursuer;

against

GREATER GLASGOW HEALTH BOARD

Defenders:

Pursuer:  Smith QC:  Drummond Miller LLP

Defenders:  Stuart;  NHS Scotland Central Legal Office

Interested Parties:  Duncan QC;  Clyde & Co

4 February 2016

[1]        This is a clinical negligence case in which I heard evidence and submissions over 21 days in the period 6 January to 18 February 2015 and then made avizandum.  While the case was at avizandum an application was made on behalf of the pursuer to allow a minute of amendment to be received.  The object was to add a new, “risk disclosure” case and to reopen the proof.  I heard the motion concerning the proposed amendment on 26 May 2015 and made avizandum.  By interlocutor dated 18 December 2015, I refused the motion and granted leave to appeal.  The opinion giving reasons was issued to parties by way of email attachment at or shortly after 09.00 on 18 December 2015, I believe, and the opinion was published on the Scotcourts website later that day.

[2]        On 24 December 2015, I received telephone representations on behalf of the pursuer’s counsel.  The main point of concern was that my opinion of 18 December was perceived to make an imputation of professional negligence against counsel.  I arranged for the opinion to be “unpublished” from the Scotcourts website pending clarification after the holiday period.  On 5 January 2016, at the beginning of the new term, my clerk emailed parties to explain the position.  On 11 January 2016, e-mail exchanges having taken place, the following motion was enrolled on behalf of the pursuer:

“(a) to request that Lord Stewart provides a supplementary note in relation to and clarifying his views regarding the pursuer’s legal representation as contained within his decision of 18 December 2015 [2015] CSOH 176; and (b) to suspend ad interim the republication of the decision of 18 December 2015 on the Scottish Courts website unless and until: (i) the supplementary note has been issued; AND (ii) any reclaiming motion is marked in relation to the said decision and/or the final decision to be issued in this case.”

 

The motion was put out for hearing on 15 January 2016.  The motion was starred, i.e. marked as requiring the appearance of counsel, but unopposed.  Mr Smith QC appeared for the pursuer as he had done on 26 May 2015.  Mr Stuart appeared for the defenders as he had done as junior counsel all along.  Mr Duncan QC appeared at the bar to represent the interests of the pursuer’s original counsel, instructed on behalf of their professional indemnity insurers, and asked to be heard. His application was not opposed by Mr Smith QC or by Mr Stuart.  I allowed Mr Duncan QC to be heard.

[3]        Shortly before the hearing parties had agreed among themselves that the pursuer’s motion would be dropped if the opinion of 18 December 2015 could be republished with an added paragraph in the following terms:

 

“[52]    Since the initial publication of my opinion on 18 December, it has been brought to my attention that passages of the opinion could be read as imputing negligence on the part of the pursuer’s solicitors and counsel. I would like to clarify that I did not intend to make any such imputation.”

 

[4]        I was not convinced that I could add to an opinion already issued and proposed that the matter should be dealt with by issuing a note explaining the disposal of the pursuer’s motion (above) with the original opinion appended.  This course is agreeable in principle;  and this is what I now do.

[5]        Mr Duncan QC highlighted two passages in the opinion of 18 December 2015 as being of concern, namely paragraphs [16] and [25] where reference is made respectively to “a reasonably competent lawyer” and “any reasonably competent medical negligence litigator”.  The context has to be understood.  The issue was whether the new case sought to be added by amendment could have been tabled earlier.  The issue was focused in paragraph 3 of the defenders’ grounds of opposition to the motion to amend;  and the issue as focused involved the question whether it might have been known that a “risk disclosure” case was available to the pursuer, assuming the facts to be supportive, before the Supreme Court handed down its judgment in the case of Montgomery v Lanarkshire Health Board on 11 March 2015.  The issue was not whether the law on “risk disclosure” was categorically this or categorically that but whether the view of the law endorsed by the Supreme Court in Montgomery was one that could have been responsibly presented before the Supreme Court made its decision.  Mr Smith QC acknowledged that the pursuer’s then senior counsel must have had special knowledge because he had appeared for the health board in Montgomery.  I thought that it was possibly unfair to the pursuer and to her then senior counsel to decide the matter on the basis of senior counsel’s special knowledge;  and I proposed that the matter should be judged by an objective standard of knowledge, namely the standard of the “reasonably competent” practitioner.  My impression at the time was that this formula was agreeable to Mr Smith QC.

[6]        I was not sensitive to the fact that the expression “reasonably competent” might be construed as raising a question of professional negligence.  I should like to clarify that I did not intend to make any imputation of professional negligence against the pursuer’s counsel or solicitors.  As I hope appears from the opinion my concern was and is, given the objective standard of knowledge, that there was effectively no explanation as to why the “risk disclosure” case had not been tabled earlier.  My private view was that the likeliest explanation was that a conscious judgement had been made not to attempt to pursue a “risk disclosure” case.  This is hinted at in paragraph [15] of the opinion of 18 December 2015.  There was some confirmation by Mr Duncan QC at the hearing of the present motion on 15 January 2016 that a judgement had been made although, to be fair, generally Mr Duncan QC made it plain that his instructions were not to revisit the merits of the application for amendment.  I did not in my opinion of 18 December 2015 purport to assess whether any such judgement was a good one or a bad one;  or purport to decide whether, if such a judgement had been made, it would have favoured allowing the amendment or would have been a factor weighing against.  Still, given the indications that a judgement was made, I am reinforced in my opinion that some preliminary inquiry would be called for, assuming the defenders were to state the requisite plea or pleas, before the question of allowing the amendment could be considered.

[7]        I should also mention that I referred to the original senior counsel’s health at paragraph [2] of the opinion of 18 December 2015 as a matter of fairness to senior counsel.  I did this because of the risk that an adverse inference might otherwise have been drawn from the fact that senior counsel was not instructed for the hearing of 26 May 2015;  and on the basis that these health issues had been referred to in open court.  I also deliberately distanced the original senior counsel from the point about the expert report obtained from Dr Milne referenced at paragraph [41] of the opinion of 18 December 2015.  I did this because I thought that the submission made on the point by Mr Smith QC was possibly based on incomplete information [see also, written submissions for the pursuer in support of the motion of 26 May 2015 at paragraphs 6.3 to 6.6].  

[8]        There is now a question as to whether this note with its appendix, being the opinion of 18 December 2015, should be issued and published or should be issued only after the parties have had an opportunity of reviewing its terms in draft and commenting.  Issuing a judgment in draft for comment is something I have done [Lyons Laing v Land 2001 SLT 1246 (Note)]:  but it is a practice to be followed only in exceptional circumstances.  The circumstances here are unusual but not I think exceptional.  What I propose to do is to issue the note to all parties but to embargo publication on the Scotcourts website for seven days reserving the right to parties to request non‑publication.  It is undesirable to withhold judgments from publication on the internet if there are no “interests of justice” reasons.  When the system of internet publication was introduced the consensus was that it would substitute for the previous practice of “advising” judgments by reading them out in open court and thereby making them available to the public and the press.  In those days the Rolls of Court listed forthcoming advisings.

[9]        There remains the question of the substantive judgment in the claim for damages.  Immediately after this note has been published on the internet (or definitively withheld from publication on the application of one or more parties), the substantive interlocutor will be signed and the substantive opinion will be issued to parties with an embargo on publication for seven days to allow parties to make representations against publication if so advised.  The substantive decision has been delayed so that the question of amendment could be dealt with “before final judgment”.  The substantive opinion was finalised on 22 December 2015.  It has since been withheld pending resolution of the issue about the opinion of 18 December 2015.

[10]      I shall allow the pursuer’s motion to be dropped and of consent reissue the opinion of 18 December 2015 as an appendix to this note.  I have found the expenses of the hearing on the pursuer’s motion to be expenses in the cause as between the pursuer and the defenders and quoad ultra I have made no finding in expenses.

APPENDIX

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 176

 

A605/05

OPINION OF LORD STEWART

In the cause

JILL CLARK (AP)

Pursuer;

against

GREATER GLASGOW HEALTH BOARD

Defender:

 

Pursuer:  Smith QC, Arabella Tait advocate;  Drummond Miller LLP

Defenders:  MacNeill QC, Stuart advocate;  NHS Scotland Central Legal Office

18 December 2015

[1]        Jill Clark, the pursuer, was born over 23 years ago, on 2 March 1992.  She was born at the Queen Mother’s Maternity Hospital, Glasgow.  Her mother’s womb ruptured at 03.45 and the pursuer was delivered by emergency caesarean section at 04.10.  The pursuer sustained profound and irreversible hypoxic brain injury.  Physically, she is completely incapable.  She has no power of speech.  Her intellectual functioning, vision and hearing have been largely spared.  She is able to instruct lawyers using assistive technology.  An action for damages was originally raised by the mother Mrs Clark on her daughter’s behalf.  Ms Clark now sues in the action on her own behalf.  The action alleges that the oxygen supply to the pursuer’s brain in utero was impaired because her mother’s womb ruptured.  It is alleged that the uterine rupture happened because the labour was negligently mismanaged by the midwives and doctors.  The main points of alleged mismanagement are that the labour was high risk because of a previous caesarean section;  that the labour should not have been augmented with syntocinon (synthetic oxytocin) thereby putting additional strain on the womb;  that the rate of augmentation was in any event too high;  that a vaginal examination should have been undertaken by at latest 03.05 on 2 March 1992;  and that the labour should have then been abandoned and delivery effected by caesarean section at 03.30 or thereabouts at latest.  The midwives and doctors were employed by Greater Glasgow Health Board, defenders.  The sum sued for is £15,000,000 with interest. 

[2]        I heard evidence and submissions over 21 days in the period 6 January to 18 February 2015.  I then took the case under advisement.  I have to mention that Mr Rory Anderson QC appeared for the pursuer at the proof.  During the proof I was advised that he was in some discomfort because of a hip condition;  and I became aware that Mr Anderson underwent a hip replacement operation shortly afterwards. 

 

Application to amend
[3]        From 12 March 2015 my clerk began to receive messages from the pursuer’s representatives that I should delay writing up the judgment because the Supreme Court was about to issue its decision in Montgomery v Lanarkshire Health Board.  The Montgomery decision was in fact issued on 11 March 2015.  On Tuesday 17 March I was told that it was planned to enrol a motion by the end of that week on behalf of the pursuer to allow a minute of amendment to be received and answered.  I understand that the motion and the proposed minute of amendment were intimated to the defenders on 19 March 2015.  The motion was enrolled and the minute lodged with the court shortly after that.  Because of other commitments I was unable to hear the motion until 26 May 2015.  I take the effective date of the application to amend for present purposes, without ruling on the matter, to be 19 March 2015, the date of intimation to the defenders.  The defenders oppose the motion to receive the minute of amendment. 

 

A risk disclosure case based on Montgomery v Lanarkshire Health Board
[4]        The amendment proposes a new case.  The new case is a risk disclosure case said to be based on the decision in Montgomery.  The principal new case is that the obstetricians attending on Mrs Clark had a duty to disclose to Mrs Clark the risks of vaginal birth after caesarean section [VBAC];  that the obstetricians failed to disclose the risks;  that if the obstetricians had given proper advice Mrs Clark would have elected to have a repeat caesarean section [ERCS];  and that there would then have been no birth brain injury.  In other words, it is not the management of labour that was wrong:  there never should have been a labour in the first place.  There is a supplementary case to the effect that the obstetricians failed in their duty to advise Mrs Clark that “stimulation of the uterus with syntocinon would cause additional strain on her caesarean scar”.  The new case can fairly be called “a radical change of front”.  Some of the submissions in support of amendment, as will be seen from what follows, appear to contradict the existing case or to express limited confidence in it.

[5]        The amendment proposes to insert eight new articles of condescendence.  The most important factual averments are:

 

“The risks to [Mrs Clark]... were of uterine rupture [and certain other risks]. Uterine rupture is a catastrophic event. Should it manifest, there is a very significant risk that both mother and baby will die... The pursuer’s mother was not advised... about the significant and material risks to her and the baby of VBAC as opposed to ERCS. Had she had an ERCS, she would not have suffered the uterine rupture and the pursuer would not have suffered the injury that she did.”

 

I have to take the pursuer’s proposed averments pro veritate so far as it is realistic to do so in the light of the evidence previously led.  At the same time I must observe that the proposed averments put the matter in a dramatic way:  the evidence of relative risks offered at proof shows the risk of maternal death in VBAC to be three to four times smaller than the risk in ERCS although both risks might be described as very small in purely statistical terms (see below).  “Catastrophic” has been taken from the Chazotte article (see below) where it is a defined term for the purpose of that study.  On the evidence heard so far the issue might be better understood as being about the risk of rupture, a potentially serious matter in itself with potentially serious consequences for the foetus.

[6]        The registrar who attended on Mrs Clark was Dr Umstad.  During the proof I discussed briefly with Dr Umstad the reasons why, given a risk [of rupture in VBAC] patients were not advised to opt for caesarean section.  In further cross-examination the following exchange occurred between the pursuer’s then senior counsel and Dr Umstad:

“Q       Can we simply agree that whilst there is an obligation to discuss these sorts of risks nowadays that obligation was not seen in 1992—there’s been a sea change in the amount of information that is given to a patient in discussion of risks with the patient, is that not so?—A        There is much more information given now than there was in 1992.

Q         And one only has to look at various guidelines from various committees of the profession to see that that is so, is that not correct?—A          Yes.”

 

The pursuer’s new senior counsel wishes to re-open this question.  His written submission states:

“Only two treatment options existed for the pursuer’s mother viz. ERCS or VBAC. In order that she could make a choice as to which option was her wish, it was necessary that the risks be explained to her (including the risk of catastrophic rupture and in that event the high risk of maternal and foetal death or serious injury, should VBAC be carried out). Reference is made to the GMC Guidance from 1995 onwards and to the publicly stated position of the GMC in the Supreme Court appeal Montgomery v Lanarkshire Health Board. As noted in those submissions, the position of the GMC is that the obligation to discuss risks with the patient has existed for decades and in any event was extant at the times material to this action.”

 

The submission is not quite correct.  There was an intermediate birth plan, the one recommended by the consultant Professor Whitfield, namely to try for vaginal delivery and to abandon labour for sectioning in the event of failure to progress.  Just to be clear the General Medical Council [GMC] Guidance referred to is general guidance, not guidance about the risk of rupture in VBAC.

 

A new case after proof, after the triennium, after the quinquennium
[7]        The motion is made 23 years after the injury was sustained, 10 years after the action was raised, two years after the expiry of the three-year personal injury time bar, six weeks after the pursuer closed her proof, one month after the case was taken to avizandum and a fortnight after the expiry of the five-year prescriptive period for reparation claims.  In the absence of argument to the contrary I take it that the start date for the running of time is the pursuer’s eighteenth birthday, 2 March 2010, notwithstanding that the case had by then already been in court for three years.  The application challenges a number of principles designed to keep litigation within bounds, including the overarching principle of finality, expedit rei publicae ut sit finis litium:  but on the other side is a permanently disabled young woman who should not be deprived of any proper opportunity to vindicate her claim for compensation. 

[8]        The motion is made in terms of RCS 24.1(1) and (2)(c) which authorises the court at any time before final judgment to allow “an amendment of a condescendence, defences, answers, pleas-in-law or other pleadings which may be necessary for determining the real question in controversy between the parties.” The proposed amendment in this case “may be necessary... for determining the real question in controversy” if the question in controversy is defined broadly as: “whether the pursuer is entitled to compensation from the defenders for her birth brain injury on the basis that the injury was caused or contributed to by a breach or breaches of duty on the part of the defenders’ servants for which the defenders are vicariously liable.” I postponed handing down my final judgment, initially at the request of the pursuer’s agents, in order to allow the application to amend to be considered “before final judgment”.

[9]        Whether to allow amendment in terms of RCS 24 is a matter for the discretion of the court.  In the usual case—where amendment is proposed in advance of proof or trial, where amendment would not involve procedural disruption and where there is no time-bar or prescription issue—the court would be inclined to see answers to the proposed amendment before making the decision.  I am reminded by a footnote in the pursuer’s written submissions, under reference to the case of Gray Aitken, that the exercise of the court’s discretion to allow amendments—particularly late amendments where there are limitation and prescription issues—is subject to constraints [Gray Aitken Partnership Ltd v Link Housing Association Ltd 2007 SC 294; see also Perth and Kinross Council v Scottish Water Ltd 2015 SLT 788].

[10]      Mr Andrew Smith QC now appears for the pursuer.  He submits, without citing authority, that if I refuse the motion to amend the pursuer has the right to raise the new case in separate proceedings, the implication being that the new case might as well be allowed by amendment.  The submission is incorrect, for the reason that all cases in relation to “the question in controversy” must be stated in the same proceedings.  This is the “one action rule” [cf. Smith v Sabre Insurance Co Ltd 2013 SC 569].  Looking at the new case as a different claim which could be raised in separate proceedings, prima facie the claim has not simply become time barred by the triennial limitation, it has been extinguished by the quinquennial prescription.  The new case has most features of a negligence claim:  but it avoids using expressions like “duty of care”, “fault” and “negligence”, whether to conceal or to declare its juristic character is unclear.  Montgomery teaches, in fairly straightforward terms I would have thought, that a risk disclosure case is, like the existing case, a case laid in negligence [Montgomery v Lanarkshire Health Board [2015] UKSC 11 at [82]].  On that basis the new case comes well within the broad definition of “the question in controversy” offered above. 

[11]      As I have said, on its face the new case if raised in separate proceedings would be time-barred in terms of the Prescription and Limitation (Scotland) Act 1973 s. 17.  The question is then whether the time bar should be extended or overridden.  Mr Smith argues for extension on the ground that the pursuer was unaware until Montgomery that “her injuries were attributable in whole or in part to an act or omission” within the meaning of section 17(2)(b)(ii). I reject this argument.  “Awareness” is not about legal understanding [cf. the majority interpretation of section 11 in David T Morrison & Co Ltd t/a Gael Home Interiors v ICL Plastics Ltd 2014 SC (UKSC) 222 at [28]—[29] per Lord Reed with whom Lord Neuberger and Lord Sumption agreed].  The question would be whether the time limit should be overridden.  In terms of section 19A the court has power to override the time limit “if it seems equitable to do so”.  So the exercise of the court’s discretion in terms of RCS 24 also involves consideration of the equities of effectively allowing the new case out of time and depriving the defenders of the time bar defence.  When considering the equities, the first question is:  does the pursuer have a reasonable explanation [Donald v Rutherford 1984 SLT 70]?

[12]      The new case also raises a prescription issue in terms of the Prescription and Limitation (Scotland) Act 1973 s. 6.  This is something I have to notice, although neither party mentioned it.  I shall simply park the issue.

 

The effect of Montgomery
[13]      The pursuer’s motion to amend is said to have been prompted by the decision of the United Kingdom Supreme Court in Montgomery v Lanarkshire Health Board [2015] UKSC 11 handed down on 11 March 2015.  Is this a reasonable explanation for bringing the risk disclosure case so late?

[14]      Mr Rory Anderson QC, the pursuer’s senior counsel for the proof in this case, appeared as senior for the ultimately unsuccessful health board in Montgomery.  Mr Andrew Smith QC, who presents the pursuer’s motion to amend, appeared in Montgomery for the interveners, the GMC.  To quote Mr Smith:  “The GMC intervened, in essence supporting Mrs Montgomery’s position.”  Mrs Montgomery was successful in the Supreme Court. 

[15]      I do not know when Mr Anderson QC was first instructed in the present case.  I suspect he was not instructed until after the personal injury limitation period had expired.  A different senior counsel was acting when the case called before Lord Hodge in 2013.  The same junior counsel has been acting since at least 2013.  The pursuer’s solicitors have accredited clinical negligence expertise.  Mr Anderson’s first recorded appearance for Mrs Clark was on 19 November 2014 when he appeared before me in a procedural application.  In Montgomery Mr Anderson QC appeared for the health board defenders at every stage of the litigation from the procedure roll hearing in 2007 to the hearing in the Supreme Court on 22 and 23 July 2014.  I presume that Mr Anderson QC personally must have been aware, well in advance of the proof in Jill Clark’s case, that, assuming the facts to be supportive, the argument on risk disclosure which eventually succeeded in Montgomery was available to be presented on behalf of Jill Clark too.  It is open to infer that he made a conscious decision not to try and present such a case although, for present purposes, I make no such inference.

[16]      For present purposes I shall assume that the proper question is an objective one which has nothing to do with an individual’s special knowledge, the proper question being whether a reasonably competent lawyer would have appreciated in advance of Montgomery that a risk disclosure case was available to be presented on Jill Clark’s behalf, assuming supportive facts.  My view is that this should have been appreciated. 

 

The authorities on disclosure of “significant risk”
[17]      Montgomery is said to have overruled Sidaway [Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871].  This is true but it is not the whole truth about either Sidaway or Montgomery. Sidaway decided that the content of the duty of risk disclosure in any particular case was to be determined by reference to responsible professional practice;  and that the doctrine of “informed consent” was not part of the law of England and Wales.  “Informed consent” is about consent to medical and surgical interventions.  Sidaway itself was about a surgical intervention, namely cervical cord decompression.  Montgomery is about the converse, non-intervention:  it is about a woman who opted for vaginal delivery without being advised of the risk of an obstructed labour with consequential brain damage to the baby. 

[18]      Even before Montgomery there was an entrenched tract of authority, in England and Wales at least, supporting a patient-centred test for risk disclosure in non-intervention, let‑nature-take-its-course cases:  clinicians were bound to disclose “a significant risk which would affect the judgment of a reasonable patient”.  The test derives from the minority opinion and obiter dicta in Sidaway [especially at 888 per Lord Scarman].  It was applied in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53, Wyatt v Curtis [2003] EWCA Civ 1779, Khalid v Barnet and Chase Farm Hospital NHS Trust [2007] EWHC 644 (QB) and Jones v North West Strategic Health Authority [2010] Med LR 90. 

[19]      Pearce was about the failure to offer a pre-dates caesarean section or induction where there was a risk of still birth if the pregnancy went to or beyond term.  In the Court of Appeal Lord Woolf MR said at 59: 

“In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt.”

 

Roch and Mummery LJJ agreed.  The plaintiff failed because the court judged the risk to be insignificant. 

[20]      In Wyatt two clinicians were at issue over the apportionment of liability for failing to warn Ms Wyatt of the risk of brain damage to her unborn child and for failing, in effect, to offer a termination.  The general practitioner had been found liable and sought a contribution from the hospital doctor.  Sedley LJ, giving the leading judgment in the Court of Appeal, stated at [19]:  “Lord Woolf's approach in Pearce... binds this court no less than does Sidaway.”  Kay and Schiemann LJJ agreed.  (Two other judges of the Court of Appeal, one of whom was the then Lady Justice Hale, had refused the general practitioner permission to appeal the earlier finding on the merits in the patient’s favour.) 

[21]      Khalid was about the failure to explain the risk of uterine rupture and to advise the mother to have a caesarean section during a trial of scar, that is during a trial of labour after caesarean section or VBAC. It has similarities to the present case and ought to have been studied, as indeed I expect it was, by the pursuer’s lawyers.  The claimants were successful. 

[22]      Jones was another case about the failure to offer a caesarean section before labour.  The risk, as in Montgomery, was of shoulder dystocia and obstructed labour.  Nicol J followed Pearce stating at [44]:  “I have concluded that there was a significant risk associated with vaginal birth.  This means that if, as there ought to have been, a consultation took place [sic] between Mrs Jones and Dr Railton at about 20 weeks, Dr Railton would have been obliged to refer to the alternative of a caesarean section.”  The case failed because it was found that Mrs Jones, for reasons personal to her, would not have opted for caesarean section.

[23]      That the duty to warn of significant risks extends to intervention cases was accepted in Chester.  Ms Chester underwent a three-level microdiscectomy and ended up with cauda equina syndrome.  The determining issue was about causation: but there was cross‑over between causation and liability;  Pearce became part of the majority decision by virtue of Lord Steyn’s explicit approval;  and the Pearce rationale was also endorsed by Lord Bingham in the minority [Chester v Afshar [2005] 1 AC 134 at [5] per Lord Bingham of Cornhill, at [15], [16] and [24] per Lord Steyn, at [86] per Lord Hope of Craighead, at [92] per Lord Walker of Gestingthorpe].  The Pearce test was then applied in Birch v University College London Hospital NHS Foundation Trust [2008] EWHC 2237 (QB), an intervention case about the risks of cerebral catheter angiography. Cranston J applied the Pearce test on risk disclosure at [72]: 

“In the defendant's additional closing submissions, Mr Aldous QC helpfully cited the judgment of Lord Woolf MR in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53 as to what the law demands as regards informing patients of medical risks. [after quoting Pearce at 59] That statement of principle, he pointed out, was approved by Lord Steyn as part of the majority view in Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134 at para 15. Lord Steyn added, in his own words, that generally speaking, in modern law medical paternalism no longer rules and “a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery” (at para 16). The obvious rationale is patient autonomy and respect for the reality that it is the patient who must bear any consequences if a risk transforms itself into a reality.”

 

The plaintiff was successful.

 

[24]      In Montgomery in the Supreme Court, Lord Reed and Lord Kerr (with whom Lords Neuberger, Clarke, Wilson and Hodge agreed) stated in their joint opinion at [69]:

“In more recent English case law the English courts have generally treated Lord Woolf MR’s statement in Pearce as the standard formulation of the duty to disclose information to patients, although some unease has on occasion been expressed about the difficulty of reconciling that approach with the speeches of Lord Diplock and Lord Bridge in Sidaway’s case... Significantly, the guidance issued by the Department of Health and the General Medical Council has treated Chester v Afshar as the leading authority.”

 

At [86] the joint opinion stated: “It is unsurprising that the courts have found difficulty in the subsequent application of Sidaway, and that the courts in England and Wales have in reality departed from it; a position which was effectively endorsed, particularly by Lord Steyn, in Chester v Afshar.”  Baroness Hale of Richmond gave a separate and concurring opinion.

 

Montgomery and retrospectivity
[25]      Key features of Montgomery as decided in the Supreme Court are that it definitively endorses the extension of the Pearce idea of a duty of disclosure to intervention cases;  that it authoritatively sets aside the Sidaway majority view on informed consent;  and that it reminds us that assessing the significance of risks cannot be reduced to simple percentages.  Nonetheless, any reasonably competent medical negligence litigator applying his or her mind to the question should have been aware from at latest 2010 that there was a risk disclosure case available to Jill Clark, assuming, as I say, that the facts were and are supportive.  A leading text book, A Grubb and others eds, Principles of Medical Law,  3^rd edition (Oxford, 2010), at para 8.76, stated:  “Thus, as a result of the GMC Guidance and the approval by the majority of the House of Lords in Chester v Afshar, the concept of informed consent now appears to be firmly established in English law.”  Any canny Scots pleader would have taken note. 

[26]      The “obstetric nightmare” in Montgomery unfolded in 1999:  but the events in Pearce happened in 1991.  The events in Wyatt also happened in 1991.  The birth injury in Jones happened in 1992.  Jones at [23]—[27] confirms that Mr Smith’s submissions could have been made five years ago.  Nicol J said:

“23      In Chester v Afshar [2004] AC 134 at [15] Lord Steyn quoted and approved the first paragraph from the extract of Lord Woolf's judgment which I have set out above.

 

24        Pearce itself rejected the argument that the doctor was relieved of a duty to warn of the risks of allowing nature to take its course as opposed to the risks of positive intervention by a doctor. At least where there was a viable medical alternative to the natural route, the patient was entitled to be told of any significant risk that attached to either course. The role of expert evidence is different in this context. It is not to identify whether or not there is a body of responsible or reasonable medical opinion in accordance with which the doctor in question acted. That sets the bar too high in determining whether the risk was a matter which should have been disclosed... Whether or not a risk is ‘significant’ is ultimately for the Court to decide.

 

25        [...]

 

26        [...]

 

27        In this context, as elsewhere in this judgment, I must always bear in mind that the events in question took place almost 18 years ago. Medical research into shoulder dystocia has moved on since then as has (to some extent at least) the accepted procedures for responding to it. Mr Whitfield QC who appeared with Mr Mylonas for the Claimant, however, was entitled to observe that the Pearce case related to a pregnancy and stillbirth in 1991. The Court of Appeal's comments about the duty to disclose significant risks do not, therefore, represent a subsequent enhancement of patient rights. Rather, they express the law which is also applicable to the present case...”

 

I therefore reject Mr Smith’s argument, which formed the bulk of his submissions to me, that the retrospective reach of Montgomery for cases like the present one is something new.  I appreciate that the Pearce formulation has been slightly re-cast.  The difference for present purposes is immaterial [Montgomery v Lanarkshire Health Board [2015] UKSC 11 at [87]].

[27]      Mr Smith QC is unable to persuade me that Montgomery by itself represents a reasonable explanation for not advancing the risk disclosure case earlier. In this situation I agree with Mr Callum MacNeill QC for the defenders that the court cannot be persuaded that the equities favour the pursuer without something more, probably involving a preliminary inquiry.  However, the proposed amendment at this stage offers no explanation other than Montgomery.  The only explanation offered in submissions is that an expert report was obtained but it was unfavourable.  For the reasons given below, this is not a good explanation.

 

Montgomery and the identification of the risk
[28]      Mrs Montgomery’s claim was brought not on her own behalf but on her son’s behalf.  I infer that any claim open to the mother was time barred, indeed extinguished by prescription.  It can be said that she had no claim for violation of her personal autonomy or anything else.  At the first instance, Lord Bannatyne, and at the intermediate appeal level, the Extra Division of the Inner House chaired by Lord Eassie, reached their respective decisions on the basis that the relevant risk was the risk to the baby, namely a very low risk of neurological or brain injury.  This was also the risk that the obstetrician had in view when making her decision on disclosure and alternative birth plans.

[29]      Taking a different perspective, the leading opinion in the Supreme Court states [94]:

“The Court of Session focused upon the consequent risk that the baby might suffer a grave injury, a risk which was relatively small. The risk of shoulder dystocia, on the other hand, was substantial: on the evidence, around nine to ten per cent. Applying the approach which we have described, the exercise of reasonable care undoubtedly required that it should be disclosed. Quite apart from the risk of injury to the baby (a risk of about 1 in 500 of a brachial plexus injury, and a much smaller risk of a more severe injury, such as cerebral palsy, or death), it is apparent from the evidence (summarised, paras 8–12, 21) that shoulder dystocia is itself a major obstetric emergency, requiring procedures which may be traumatic for the mother, and involving significant risks to her health. No woman would, for example, be likely to face the possibility of a fourth degree tear, a Zavanelli manoeuvre or a symphysiotomy with equanimity. The contrast of the risk involved in an elective caesarean section, for the mother extremely small and for the baby virtually non-existent, is stark and illustrates clearly the need for Mrs Montgomery to be advised of the possibility, because of her particular circumstances, of shoulder dystocia.”

 

I respectfully conceive that the outcome could well have been the same in the Court of Session, without any need to re-state the law, had it been thought that the relevant risk was the 10% risk of shoulder dystocia.  The evidence of the consultant obstetrician and Mrs Montgomery’s evidence would have been looked at in a different way.  As Lord Bridge of Harwich said in Sidaway [at 900]: 

“But even in a case where, as here, no expert witness in the relevant medical field condemns the non-disclosure as being in conflict with accepted and responsible medical practice, I am of opinion that the judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it. The kind of case I have in mind would be an operation involving a substantial risk of grave adverse consequences, as, for example, the ten per cent. risk of a stroke from the operation which was the subject of the Canadian case of Reibl v Hughes, 114 DLR (3d) 1. In such a case, in the absence of some cogent clinical reason why the patient should not be informed, a doctor, recognising and respecting his patient's right of decision, could hardly fail to appreciate the necessity for an appropriate warning. “

 

Lord Templeman was to the same effect at 903.  It follows that identifying the correct risk or risks can be crucial.

 

Are risks to the mother collateral and irrelevant?
[30]      Mr Smith’s proposed amendment refers to the risk of rupture and also to other maternal risks, the risks of infection, hysterectomy, haemorrhage, transfusion and pelvic floor injury leading to incontinence.  The defenders submit that the other risks are collateral and irrelevant.  There must also be an issue as to whether the risk to the mother arising from uterine rupture is relevant.  At one time, Mrs Clark had in contemplation a claim on her own behalf, which has not been pursued, for the emergency hysterectomy which followed on from the rupture.  Mr MacNeill QC for the defenders tells me that Mrs Clark wanted to have another child or more children: that is why the hysterectomy was a blow for her.  As I heard in evidence, a reason for not electing to have a repeat caesarean section is because of the risks for any subsequent pregnancy.  Mr Smith QC seeks to persuade me, off the cuff, that Lord Hoffman’s mountaineer-with-a-bad-knee analogy resolves the point about collateral risks in his favour.  I disagree [South Australia Asset Management Corporation v York Montague Ltd [1997] AC 191 at 213—214].  Mr Smith’s submissions skate over the distinction between injury to the mother and injury to the baby by simply saying:  “… if there was a failure to discuss the material risks as defined, then there was a legal wrong on the part of the medical staff”, without specifying which party was wronged.

[31]      Pearce was a still-birth case and was able to side-step the issue of the relevant risk.  The matter might be tested by figuring a case in which there is a high risk to the baby and a trivial risk to the mother but only the mother is hurt. There may well be an argument for treating the composite risk as the relevant risk in mother-and-baby cases.  The Supreme Court does not, however and with respect, provide a rationale for doing so.  The defenders submit that, if amendment is allowed, a debate on the relevancy of the new case is likely to be called for before an allowance of further proof can be considered.  I have to agree that this is likely.  Given the risk statistics discussed in the next section it would clearly be of advantage to the pursuer to pull in every possible maternal complication. 

 

Supporting information about risk
[32]      Mr Smith QC submits that in 1992 it was plain that there was a material risk of uterine rupture in VBAC [written submissions, paras 3.9—3.13].  He supports his submission with a copy of the journal article C Chazotte and anr, “Catastrophic complications of previous cesarean section,” Sept 1990, Am J Obstet Gynecol, vol 163, no 3, 738.  The study cohort is a group of 711 patients with a prior caesarean section delivered at the Bronx Municipal Hospital Center in the period 1986—1989.  I learn that the rate of defined “catastrophic” outcomes for all kinds of delivery (including ERCS) was 2.4% (cf. pursuer’s written submissions at para 3.13).  Uterine rupture occurred in 1.4% of the women allowed trial of scar.  The actual trial of scar sample was 424.  Of the six ruptures in question, one rupture had occurred before labour so that the corrected incidence is more like 1.1%.  Three of the five intra-partum ruptures were in labours augmented with oxytocin.  Two of the oxytocin cases showed no response to long periods—ten hours in one case—of augmentation.  Apart from the fact that the American hospital apparently allowed long periods of augmentation without progress, the practice for oxytocin augmentation was the same as the practice at the Queen Mother’s Hospital in the sense that no distinction was made between VBAC and non-VBAC labours.  The article considers whether the “careful use of oxytocin for induction or stimulation of labor based on the same criteria we use in women without a cesarean section scar might have led to a higher risk of rupture” and effectively answers the question in the negative, or at least comes to no definite conclusion. 

[33]      The authors conclude: 

“More importantly, the observed frequency and nature of complications in subsequent pregnancies, particularly in women with more than one prior caesarean delivery, emphasises the importance of performing cesarean section only when the benefits to be accrued outweigh potential risks.” 

 

This appears to be consistent with the evidence given by Dr Umstad and Professor Deirdre Murphy for the defenders; and it apparently endorses the recommendation made by Professor Whitfield in 1991 to try for a vaginal delivery.  The material supports the pursuer’s new case to the extent that it confirms what is already known, namely that there is a risk of uterine rupture in VBAC, augmented and unaugmented.  However, it tends to contradict the existing case on the issue of the risks and management of augmentation in VBAC, a point which I note only for its relevance to the question of “change of front”. 

[34]      Mr Smith also relies on the report by the defenders’ expert Professor Deirdre Murphy which was put in evidence at the proof: but Mr Smith misunderstands the statistics.  Whereas Professor Murphy states that Mrs Clark was at a risk of 1 in 500, otherwise 0.2%, of sustaining a rupture of the uterus in VBAC, Mr Smith QC asserts that the real risk was 1 in 287 or 3.5 per 1,000, otherwise 0.35%, failing to recognise that this figure includes, as is stated earlier in Professor Murphy’s report, an iatrogenic component and artificial induction cases as well as augmentation cases using a variety of methods, not just syntocinon.

[35]      The minute of amendment references a journal article by the defenders’ independent expert as follows:  “D Murphy and Ors, BJOG August 2005”.  A copy of the article in the British Journal of Obstetrics and Gynaecology [BJOG] has not been produced.  The online journal index gives the full citation as:  “Obstetric management of a woman's first delivery and the implications for pelvic floor surgery in later life”, BJOG ,Volume 112, Issue 8, pages 1043–1046, August 2005.  This is not about the risk of uterine rupture in VBAC and the defenders would question whether it is legally relevant.

[36]      In relation to the risk of death, I already have some instruction from the article S W Wen and others, “Comparison of maternal mortality and morbidity between trial of labor and cesarean section among women with previous cesarean delivery”, American Journal of Obstetrics and Gynecology (2004) 191, 1263—9, part of which was put in evidence by the pursuer’s senior counsel at the proof.  The passage includes the following:  “Maternal in-hospital death rate, however, was lower in the trial of labor group (1.6 per 100,000) than in the elective cesarean group (5.6 per 100,000).”  As regards the risk of uterine rupture, the material founded on by Mr Smith at this stage gives a risk of rupture in VBAC in the range of 0.2% to 1.1%.  Statistical levels of risk are not by themselves determinative of significance.  However at these levels it is important to know whether the relevant risk is the risk to the mother or the risk to the baby.  The risk of an adverse outcome to the baby is, on the evidence I have heard so far, one quarter of the risk to the mother, therefore, on the above risk range, 0.05% to 0.25%.

 

Who is now said to be to blame and for what?
[37]      If the amendment were allowed, the proof would have to be re-opened.  At least that is what the pursuer intends.  Does the minute offer a clear understanding of the scope of the proof?  The minute seeks to blame the obstetric consultant Professor Whitfield and other medical practitioners, unspecified.  In submissions Mr Smith tells me that the practitioners to be blamed are the consultant Professor Whitfield, the registrar Dr Umstad and the senior house officer Dr Vivien Scott.  Dr Scott has not been blamed to date and is not identified by name or grade in the minute.  Dr Umstad is the only obstetrician blamed as the case has been presented to date: but he is not identified by name or grade in the minute.  Professor Whitfield is identified but has not been blamed to date.  In submissions Mr Smith tells me that “the main target is Dr Umstad”.  What this might mean is not specified in the minute of amendment.  It might mean a number of things.  Mr Smith argues that there is a continuing duty to discuss treatment.  This may be intended to convey that it was for Dr Umstad to discuss the birth plan options with Mrs Clark even although Dr Umstad’s senior had clearly communicated his recommendation in red ink, after discussion with Mr and Mrs Clark antenatally, to try for vaginal delivery;  and even though before Dr Umstad came on duty at 22.00 on the night of 1 March 1992 Mrs Clark’s membranes had been ruptured artificially to induce labour.  It might mean that Dr Umstad ought to have formally “consented” Mrs Clark for syntocinon augmentation at 23.00 on 1 March 1992 or at 01.00 on 2 March 1992 or at both times.

[38]      This supposition is based on the Royal College of Obstetricians and Gynaecologists [RCOG] Green-top Guideline No. 45 (2007) published 15 years after the event, part of which at page 11 was put in evidence at the proof.  However, it is clear from the context that the discussions and decisions, in terms of 2005 thinking at least, are meant to be consultant-led.  The consultant in this case was Professor Whitfield.  Neither side put him forward as a witness in the proof.  I was told by the pursuer’s then senior counsel, Mr Anderson QC, on day two of the proof that Professor Whitfield is “alive, but fairly elderly and frail and living in... Portugal”.  Professor Whitfield was born in 1927 making his age now 88.  The defenders say that he is “not in a position to shed light on the decision to proceed with vaginal birth over and above what appears in the notes.”  Whether his comments could usefully have been obtained at an earlier time is something that might require to be known.  

[39]      Mrs Clark’s ante-natal care was shared, with visits to the hospital alternating with visits to the general practitioner.  Shared care raises complications in relation to risk disclosure liability [cf. Wyatt v Curtis [2003] EWCA Civ 1779, discussed above].  This need not trouble the pursuer:  but it might affect the defenders’ position.

[40]      I should mention that Dr Umstad is now a consultant obstetrician and Director of Maternity Services at the Royal Women’s Hospital, Melbourne, Australia.  He came to Edinburgh to give evidence in the proof.  

 

Expert support
[41]      Mr Smith QC tells me that an expert report on the question of risk disclosure in 1991—1992 was obtained for the pursuer from Dr Alastair Milne.  (Dr Milne gave expert evidence about the management of the labour at the proof.)  Mr Smith further tells me that Dr Milne reported “that it was not common practice [at the material time] to advise patients of the risks and accordingly that [Dr Milne] could not support a claim of negligence in that way.”  Given the case law just referred to this is not an adequate explanation for not pleading a risk disclosure case.  The way Mr Smith chooses to put the submission on this point raises more questions than it answers, questions about what was going on in the minds of the pursuer’s advisers at least while the case was active in the period from 25 November 2011 onwards.  As the defenders rightly submit, the pursuer in Montgomery continued to press her risk disclosure case on the basis of Pearce, Chester and Nicol without relying on an expert report for the existence of a duty to disclose the risk as a matter of responsible obstetric practice; and she did this supported ultimately by Mr Smith’s clients, the GMC.  I accept that the handing down of the decision of the Inner House in Montgomery would have given Ms Clark and her then advisers pause for thought:  but it could easily have been discovered that Montgomery was to go to London;  and the obvious thing, having put a risk disclosure case on record, would have been to sist Ms Clark’s case or to ask for an adjournment pending the outcome of Montgomery in the Supreme Court.  Supposing a late amendment had been proposed and refused, the pursuer would have been in a much stronger position to argue on appeal for the matter to be re-opened. 

[42]      One of the defenders’ grounds of opposition to the motion is that the proposed amendment is not supported by an expert.  Mr Smith QC replies, now taking the other side of the argument, that the new case does not require expert support because the issue is not about responsible obstetric practice: the issue is about patient autonomy as, he says, Montgomery makes clear.  I agree, as I have already said, that an expert report is not required as to the existence of a duty to disclose as a matter of responsible practice.  I do not agree that there is no requirement for supporting expertise.  Part of any risk disclosure case has to be about the treatment or birth plan options, the recommended course, alternatives and variants as a competent practitioner would have assessed these things at the time [Montgomery at [87]].  The leading opinion in Montgomery states [83]:  “… what risks of injury are involved in an operation, for example, is a matter falling within the expertise of members of the medical profession.”  The risks that have to be addressed in this case are those which would have been known to competent obstetricians in 1991—1992.  Therefore I conceive that the proposed new case does require to be supported, at least to that extent, by expert opinion [cf. Jones v Royal Wolverhampton NHS Trust [2015] EWHC 2154 (QB)].  Since the proposed new case appears to make separate criticisms of the decision to offer VBAC, the decision to augment VBAC and also, possibly, the decision not to abandon labour for sectioning earlier, all on the basis of non-disclosure of risk, then an expert opinion would have to address various risks.  Indeed the minute of amendment seeks to bring into play not just the risk of uterine rupture but also the risks of infection, hysterectomy, haemorrhage, transfusion and pelvic floor injury leading to incontinence (a risk, I understand from previous litigation, with all vaginal births). 

[43]      The court also requires expert instruction as to the decision-making competence of the clinical grades involved in 1991—1992.  Although the content of the duty to disclose may not require to be supported by evidence as to proper practice, the question about who in the clinical hierarchy is responsible for disclosing is something that I should think the court can only learn from the professionals.  I am open to persuasion of course, but I cannot see at this point that a court, uninstructed on this matter, could find that Dr Umstad was at fault for failing to offer Mrs Clark an elective section when his consultant, the Professor of Midwifery, had agreed with Mr and Mrs Clark that there should be a trial of labour.

 

Further procedure and additional evidence
[44]      This is a highly unusual application where, in my view, it is for the applicant to put the argument for amendment convincingly and in detail.  The pursuer’s submissions are not based on a realistic assessment of the scope of the proposed additional proof;  the submissions refuse to acknowledge that there could be substantial pre-proof procedure;  and there are problems with the minute even without considering what might happen were the motion to be allowed.

[45]      I have to consider the new case as a quasi time-barred and quasi-extinguished claim.  The minute does not grapple with the question of extinction by prescription at all;  nor does the minute invoke the court’s equitable power to override the time limit in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973.  Normally a claimant does not need to respond to a time bar point in advance.  The point might never be taken.  In the exceptional circumstances of this case I would expect a section 19A plea supported by the usual sort of averments including a reasonable explanation within the minute as to why no risk disclosure case has previously been put forward.  Without an explanation it is questionable whether there is profit in going further.  The authorities tend to the effect that substantial prejudice to the opposing party is to be presumed when amendment is essayed after proof or jury trial or after time has expired [eg Thomson v Glasgow Corporation 1961 SLT 237 at 245—247 per Lord Justice-Clerk;  decision affirmed by the House of Lords, 1962 SC (HL) 36; Greenhorn v J Smart & Co (Contractors) Ltd 1979 SC 427].  

[46]      The defenders do not concede that the decision of the Supreme Court in Montgomery by itself would make it equitable to override the time limit after proof on the existing averments. I agree.  While I accept Mr Smith’s submission, as a general proposition, that the point at which to deal with time bar questions is at the stage of amendment, I also take the view on present information that this is a case in which the court could not be satisfied that the equities favour the pursuer without a preliminary proof [Donald v Rutherford 1984 SLT 70].  Mr Smith QC appears to submit that it is incompetent to have a preliminary proof on the equities when the question of time bar arises in connection with amendment [written submissions for the pursuer para 5.2].  The submission is wrong [Ferguson v J & A Lawson (Joiners) Ltd 2015 SC 243].

[47]      Before there could be further proof on the merits, questions of relevancy would have to be addressed.  I accept the defenders’ submission that the pursuer’s intended new averments are open to challenge for irrelevancy as well as lack of specification.  There is a substantive question about the identification of risk, referred to above.  There might also be a debate about the undeclared character of the duty to disclose risks mentioned above.  More generally it is not good enough in an application of this kind to offer to prove an inspecific case against unspecified “medical staff” when the applicant is in possession of all the relevant information.  Mr Smith QC submits that the court should not be unduly concerned with lack of detail in the pleadings at this stage. In the context of this highly unusual application I disagree.  Nothing said by Mr Smith QC persuades me that the limited revision of the pursuer’s averments which he seems to have in mind will resolve the difficulties;  nor do I think that any answers offered by the defenders are likely to assist, for at this stage I am bound to proceed on the assumption that what the pursuer says is true insofar as it is realistic to do so. 

[48]      As regards additional proof, paragraph 4.2 of the written submissions gives the impression that Mrs Clark will be the only witness.  Paragraph 3.13 suggests that “a number of medical papers” will be put in evidence without addressing the question whether an expert witness or expert witnesses is or are to speak to them.  For the reasons given above I take the view that the new case needs expert witness support.

[49]      Comparison can be made with applications for recall of a witness and applications to allow res noviter evidence.  In practice the court does not consider an application for recall unless the applicant specifies with some precision the scope of the additional questioning.  It is best practice to present res noviter applications with supporting details in writing of the intended scope, nature and hoped-for effect of the new evidence and with supporting witness statements or affidavits [eg Rankin v Jack (t/a Lochill Equestrian Centre) 2010 SC 642].  In this case it would have been at least helpful to the pursuer’s argument if the pursuer had produced a witness list, witness statements and expert reports, along with an inventory of documents to be relied on in the intended additional proof.  It would have been helpful to have had copies of the documents to be relied on insofar as not already produced. 

[50]      Reading between the lines of Mr Smith’s submissions, there seems to be pessimism about the outcome of the proof so far led.  The submissions describe the new case as possibly “the only robust case that the pursuer has” Mr Smith’s written submissions remind me that in Thomson amendment was sought after proof.  In Thomson the Lord Justice-Clerk stated: 

“It is obviously quite inconsistent with the principles on which our litigations are conducted that it should be open to the loser to say, now that I know the strength and weakness of my successful opponent, I realise that I could have done much better if I had fired my batteries from a different place and deployed my troops in a different way”.

 

The amendment in Thomson was refused [Thomson v Glasgow Corporation 1961 SLT 237 at 246].

 

Decision
[51]      Weighing all considerations my decision is that the pursuer’s motion to allow the minute to be received and answered must be refused.  The fact that the pursuer suffers from an injury of maximum severity weighs heavily on her side of the argument.  On the other side the pursuer has had the benefit of legal advice and representation from practitioners, both solicitors and advocates, experienced in this area of litigation; for the reasons given above the decision of the Supreme Court in Montgomery does not have the decisive effect claimed for it;  in the absence of acceptable information to the contrary, I have to conclude that the pursuer has had ample opportunity to state and prove her claim; if amendment were to be allowed there would be re-litigation of the case;  and what is proposed on the pursuer’s behalf conflicts with the principle of finality, qualified though the principle may be in its practical application by the terms of RCS 24.1(1) and by the excepting and relieving provisions of the Prescription and Limitation (Scotland) Act 1973.  On balance I am not persuaded that it is reasonable, equitable and in the interests of justice to allow the new case to be added at this stage or indeed to allow the procedure to be taken further.  In this event I am asked to grant leave to appeal, which I readily do.  No one who has had the opportunity to see and hear the pursuer—in the day-in-the-life-of video—and to see and hear her parents in person could possibly not want to do what can be done for them within the rules.  I emphasise that my decision is made on the material presented to me. For example, I have not been addressed on the article 6 ECHR “access to a court” implications of the limitation and prescription rules.  I reserve meantime all question of expenses in relation to this application.