A AND OTHERS AGAINST GLASGOW CITY COUNCIL [2018] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> A AND OTHERS AGAINST GLASGOW CITY COUNCIL [2018] ScotCS CSOH_116 (09 November 2018) URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_116.html Cite as: 2019 Rep LR 25, 2019 SCLR 299, 2018 GWD 39-483, [2018] ScotCS CSOH_116, [2018] CSOH 116, 2019 SLT 32

[1] On the late afternoon of 22 December 2014 a bin lorry driven by one of the defenders’

employees left the roadway and travelled along pavements in Queen Street and George

Square. It collided with several pedestrians before it finally came to a halt off the road near

Queen Street Station. Six people died as a result of injuries which they sustained during the

[2] In this chapter 43 action (“the present action”) eight relatives of some of the deceased

(or, in one case the relative’s guardian, and in another, the executor of a relative who has

[3] The pursuers raised an action for damages against the defenders on 8 December 2017

(“the first action”). The summons in that action had been signetted three days earlier. The

summons was not called within three months and a day of its passing the signet, with the

result that the instance fell at midnight on 6 March 2018 (rule of court 43.3(2)). That fact did

not become apparent to the pursuers’ solicitors until 11 June 2018. The summons in the

present action was lodged for signetting on 19 June 2018, and it was served on the defenders

the next day. The defenders plead that each of the pursuers’ claims in the present action are

timebarred in terms of sections 17 and 18 of the Prescription and Limitation (Scotland)

Act 1973. The pursuers aver that in the whole circumstances the court should exercise its

power under s 19A of that Act to allow the pursuers to bring the action notwithstanding the

[4] By interlocutor dated 25 June 2018 the Lord Ordinary made an order in terms of

section 11 of the Contempt of Court Act 1981 prohibiting the publication of the names,

addresses and dates of birth of the pursuers, or any particulars or details calculated to lead

to their identification. On 12 October 2018 the Lord Ordinary allowed a proof before answer

on two issues - whether the court should exercise its s 19A power to allow the action to

proceed, and if so, whether the defenders are liable to make reparation to the pursuers. On

9 November 2018 the case came before me to hear the proof before answer. At the outset of

the diet the parties lodged an extensive joint minute (no 22 of process). There was affidavit

evidence from Grant Knight (a partner of the pursuers’ Edinburgh agents), Paul Kavanagh

(a partner of the pursuers’ local agents), and Ian Leach (a partner in the Edinburgh office of

the firm representing the defenders). Certain productions (6/8 to 6/59 in the Second

Inventory of Productions for the pursuers and 7/1 to 7/14 in the Inventory of Productions for

the defenders) were agreed to be true and accurate. The parties were in agreement that it

was unnecessary for the court to hear any oral evidence. I was informed that if the action

[5] In advance of the proof counsel prepared Notes of Argument. At the conclusion of

the proof I adjourned to deliberate. About an hour later I reconvened the court and

delivered my decision. I exercised the s 19A power to allow the pursuers’ claims to proceed.

I gave oral reasons. I have now been advised that a reclaiming motion has been marked by

the defenders. Those are the circumstances in which I have prepared this Opinion.

[6] Mr Kavanagh has been instructed by the pursuers since very shortly after the

incident. In addition to acting for them in the first action and in the present action, he has

represented some of them in a number of other legal proceedings linked to the incident.

[7] The material facts, and certain other relevant matters, are not in dispute. For present

purposes it is only necessary to mention some of the matters agreed in the Joint Minute:

7. ... Mr Paul Kavanagh, Solicitor is the pursuers’ principal agent. He has acted on

behalf of the pursuers for around four years, representing them throughout the FAI

and in [a subsequent] application [to the court]. Mr Kavanagh has undertaken the

work he has with the pursuers on a speculative basis (but with no fee arrangement in

the event of a successful outcome) and his firm have incurred substantial outlays in

the necessary preparations in this case. This case has had a profound psychological

8. …[D]elay in this case may have a significant effect on the pursuers’ psychological

conditions. This is particularly so in the case of the first pursuer. The first pursuer…

has developed severe mental health problems... As a consequence of this,

instructions to proceed with this action were very difficult to obtain…

9. …On 24 October 2017 solicitors acting for the defenders agreed to settle the

pursuers’ claims on a full liability basis…The defenders agreed that they would not

defend the action on the merits and that, once raised, the action could be sisted for a

period until full details of the claims could be provided and there was an

10. …On 4 December 2017 the Summons [in the first action] was presented for

signetting along with a motion for the first pursuer to be anonymised in the

proceedings and for reporting restrictions in terms of the Contempt of Court Act

1981. The Summons was signetted on 5 December 2017. The motion for anonymity

and reporting restrictions was heard on 8 December 2017 and an interim order

granted. The defenders’ solicitors accepted service of the Summons on 8 December

2017. On 11 December 2017 an amended copy of the Summons was lodged at the

General Department altering the designation of the first pursuer. The General

Department required that the principal Summons be returned to them in case there

was a challenge by the media to the interim order. The Court granted a final order

12. …[T]he time period for the lodging of the Summons for calling under Rule 43.3(2)

expired on 6 March 2018. Whilst the Summons had been lodged at the General

Department of the Court of Session, the calling slip had not been presented. This

was a procedural oversight and a genuine error. In terms of Rule of Court 43.3(2), if

the Summons is not lodged for calling the instance [falls]. There is no scope for

invoking the Court’s dispensing power or any other equitable remedy to address the

13. …[C]orrespondence between the parties to the action took place in the period 9

March 2018 to 12 June 2018 in respect of further steps to progress the claims towards

a possible settlement. During that period neither party recognised that the time limit

14. …[O]n 11 June 2018 Mr Knight dictated a memo to his firm’s Parliament House

Clerk requesting that he borrow out the principal Summons so that it could then be

lodged for calling and enrol [a] motion to sist. On 12 June 2018 the Parliament House

Clerk took the memo to the General Department at the Court of Session. The Court

then advised that as a period of three months and a day had expired, there was a

15. …[T]he process in Mr Knight’s firm was to the effect that ordinarily the principal

Summons, duly served, would be sitting in the file. A calling slip would be prepared

and the Summons lodged at court with that calling slip, so that it could call. In this

case, the Summons never left the process after 11 December 2017. As it remained in

process, its presence on file did not act as a reminder that it might require to be

16. …[O]n 13 June 2018 … Mr Knight advised Mr Leach that the instance of the

action had fallen. Mr Leach had not appreciated that that was the position… On 14

June [2018] Mr Leach advised that the defenders could not agree to not insisting

upon a plea of prescription. Mr Leach advised that the defenders were, in due

course, seeking to recover the sums to be settled in these claims from another party…

Mr Leach advised that if they allowed this matter “in by the back door”, the other

party would refuse to entertain any possibility of a reimbursement.

17. …[O]n 18 June 2018 … Mr Leach … confirmed that if the time-bar plea was

unsuccessful, the defenders would continue to agree to settle the pursuers’ claims on

19. …[T]he defenders do not maintain that they have any defence to the original

action on the merits; that but for their time bar plea in this case, they have no

defence; that there is no prejudice to the defenders as far as the availability of

evidence is concerned relating to the incident in George Square which is the subject

[8] Among the productions agreed to be true and accurate are medical reports (6/50 -

6/57) relating to the first pursuer and four of the other pursuers, and a further report (6/59)

dated 29 October 2018 by Dr Alison Harper (a chartered clinical psychologist who has

assessed the first, second and third pursuers). In that further report Dr Harper wrote:

3. You have asked me to give my opinion on the impact that having to bring a claim

against the law firms could have on the pursuers. In my opinion, this would be two-

i) It has now been almost four years since the incident occurred. There is a

wealth of literature on the detrimental impact of uncertainty on anxiety (e.g.

Grupe & Nitschke, 2013). The… family are struggling with the impact not

only of the deaths …, but with the stress caused by the ongoing legal case.

Further delays in settlement of the case is likely to prolong uncertainty,

thereby significantly exacerbating levels of anxiety and low mood and

ii) In my opinion, failure of the defenders to accept responsibility for

compensating the pursuers on the basis of a technicality would exacerbate

feelings of anger and injustice felt by the… family, and thereby impact

negatively on their mental health. Acknowledgement of responsibility is

fundamental to pursuers in terms of their ability to process their emotions

and come to terms with their experiences (e.g. Iqbal & Bilali, 2017).

[9] Ms Bain submitted that, balancing the equities, the court should exercise its s 19A

power to allow the action to proceed. It was common ground that there was no prejudice to

the defenders other than the loss of the timebar defence. The first action had been raised

within the triennium but the instance had fallen because, through an oversight, the summons

had not been called within three months and a day as required by rule 43.3(2). Immediately

the oversight had become apparent the pursuers’ solicitors had promptly raised the present

action. The claim was not a stale claim. It had been fully investigated by the defenders, and

liability was not contested. There would be material prejudice to the pursuers if the action

was not allowed to proceed. They would be compelled to sue their solicitors in order to

obtain reparation. That might not be straightforward, as there could be issues of

apportionment of liability between the principal agent and the local agent. In any case, it

was highly likely that there would be delay in the pursuers receiving redress as compared

with the position were the present action allowed to proceed. The pursuers would have to

instruct new solicitors. They would have to agree a funding arrangement which was

acceptable to both them and the new solicitors. Standing the pursuers’ psychological

difficulties, and the fact that they would be embarking on an action for a third time, it would

not be easy for them to accept, and form a trusting relationship with, new solicitors. The

delay and the upset involved would be likely to be detrimental to their mental health.

Reference was made to Carson v Howard Doris Ltd 1981 SC 278, per Lord Ross at p 282;

McFarlane v Breen 1994 SLT 1320; McCluskey v Sir Robert McAlpine & Sons Ltd 1994 SCLR 650;

B v Murray (No 2) 2005 SLT 982, per Lord Drummond Young at paras 21-22, 29 (affirmed on

appeal by the Inner House in B v Murray (No 2) 2007 SC 688, and by the House of Lords sub

nom AS v Poor Sisters of Nazareth 2008 SC (HL) 146); Johnston v Thomson 1995 SCLR 554; Peat’s

Executors v Assembly Theatre Ltd 2014 SLT 1017, per Lord Doherty at paras 19-23 and 27-28;

Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541, per McHugh J at pp 551-

554; Johnston, Prescription and Limitation (2nd ed.), Ch. 13; Russell, The Law of Prescription and

Limitation of Actions in Scotland, (2nd ed.), pp 167-177; Scottish Law Commission, Discussion

Paper no 132, Personal Injury Actions: Limitation and Prescribed Claims, paras 1.24 - 1.29;

Scottish Law Commission, Report no 207, Personal Injury Actions: Limitation and Prescribed

[10] Mr Smith submitted that the balance of the equities did not favour the court

exercising its s 19A discretion to allow the action to proceed. While it was accepted that the

only prejudice to the defenders would be the loss of the timebar defence, that statutory

protection was there for their benefit and they were entitled to take advantage of it. Here, as

in Peat’s Exors v Assembly Theatre Ltd, supra, and Bell v Greenland 1988 SC 54, the critical issue

was whether the pursuers would have a good alternative remedy against their solicitors.

Clearly, they would have. The solicitors’ failure had been a mistake or oversight, but there

was no doubt that they had been negligent. It followed that the pursuers would not suffer

material prejudice because they would have a cast iron case against their solicitors. If there

was delay in the pursuers receiving compensation that would be unfortunate, but it was

possible that an action against the solicitors might be resolved just as quickly as the present

action would be if it were allowed to proceed. The interests of justice were not well served

by an approach which too readily excused failures to comply with the rules of court: Brogan

v O’Rourke 2005 SLT 29, per the Opinion of the Court at para 33. The court should be

disinclined to exercise the s 19A power where, as here, the cause of the problem was a

[11] I am grateful to counsel for their written and oral submissions. I commend parties’

[12] It is accepted that the pursuers’ claims are timebarred by virtue of sections 17 and 18

[13] It is well established that s 19A confers a general and unfettered discretion on the

court to do what is equitable in all the circumstances (Donald v Rutherford 1984 SLT 70, per

Lord Cameron at p. 75, and per Lord Dunpark at p. 78; Forsyth v A F Stoddart & Co Ltd 1985

SLT 51, per Lord Justice-Clerk Wheatley at p 53; McCabe v McLellan 1994 SC 87, per Lord

President Hope at p 97; B v Murray (No 2) 1985 SLT 982, per Lord Drummond Young at

para 29). The court’s jurisdiction is based upon equity, the crucial question being “where do

the equities lie?” (Forsyth v A F Stoddart & Co Ltd, supra, per Lord Justice-Clerk Wheatley at

p 55; Elliot v J & C Finney 1989 SLT 605, per Lord Justice-Clerk Wheatley at p 608F; B v

[14] Here the defenders accept that if the application is granted the sole prejudice to them

would be the loss of the timebar defence. This is not a case where there is any question of a

stale claim being advanced. The case has been fully investigated by the defenders, and there

[15] If the action is allowed to proceed there will be no defence on the merits. The

defenders had agreed to settle the claims on a full liability basis. They have already settled

[16] The defenders advance no criticism of the pursuers’ own conduct. However, it is

clear that the pursuers must bear responsibility for their agents’ conduct (Forsyth v A F

Stoddart & Co Ltd, supra, per Lord Justice-Clerk Wheatley at p 54; B v Murray (No 2) 1985 SLT

[17] Apart from the failure to have the summons in the first action called timeously, the

pursuers’ agents appear to have acted in an exemplary way. In particular, the principal

agents’ solicitude towards the pursuers, their willingness to accept instructions on a

conventional speculative basis, and their meeting of litigation outlays from their own funds,

have been admirable. In very difficult circumstances they have developed a strong

[18] The failure to have the summons called was an oversight (and an explanation as to

how it came to pass has been provided). There is no escaping it was a serious and culpable

failure: although on the spectrum of culpability it appears to me to be less egregious than

many of the reported cases where a solicitor has failed to serve a summons within the

[19] If the application is not granted the pursuers’ only redress will be against their

solicitors. My assessment is that an action of professional negligence against the solicitors

would be very likely to succeed. Accordingly, I approach matters on the basis that if the

s 19A discretion is not exercised in their favour the pursuers will not be without a means of

[20] However, notwithstanding the existence of the alternative remedy, in my opinion it

is clear that the pursuers would be very materially prejudiced by a refusal to exercise the

s 19A power. If the pursuers have to proceed against their solicitors they will have to find

and instruct new representation in whom they have trust and confidence, and who would

be prepared to accept instructions on a funding basis which is satisfactory to both solicitors

and clients. That process is likely to be difficult and challenging for each of the pursuers. It

is likely to be especially fraught in the case of the first pursuer, having regard to her current

mental health, her experience (on this hypothesis) of two abortive actions, and the history of

difficulty in obtaining instructions from her. The probable consequences would be very

significant upset for the pursuers and material delay in their obtaining reparation. That

upset and delay would be likely to have significant detrimental effects on the pursuers’

mental health (especially in the case of the first pursuer). In my opinion these are very

[21] In the whole circumstances I am in no doubt that the balance of the equities comes

down in the pursuers’ favour. It follows that I am satisfied that the s 19A applications

should be granted.

Scottish Court of Session Decisions