Ab V Nhs Ayrshire & Arran And Another; As V Greater Glasgow And Clyde (nhs Trust) & Another; Ck V Greater Glasgow Health Board And Another; Sh V Rh And Others
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2016] CSOH 120 |
| Docket Number | PD233/16 |
| Court | Court of Session |
| Date | 12 August 2016 |
| Published date | 12 August 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 120
PD233/16
PD234/16
PD235/16
PD236/16
OPINION OF LORD BOYD of DUNCANSBY
In the actions of
AB
v
(First) NHS Ayrshire & Arran; and (Second) Johnson & Johnson
AS
v
(First) Greater Glasgow and Clyde (NHS Trust); and (Second) Johnson & Johnson
CK
v
(First) Greater Glasgow Health Board; and (Second) Johnson & Johnson
SH
v
(First) RH; (Second) BMI Healthcare and (Third) Johnson & Johnson
Pursuer: Sutherland; Anderson Strathern (PD233/16)
First defenders: Reid; NHS Scotland Central Legal Office
Second defenders: Batchelor, Solicitor Advocate; Clyde & Co (for Johnson & Johnson)
Pursuer: Sutherland; Anderson Strathern (PD234/16)
First defenders: Cominsky; Plexus Law
Second defenders: Cominsky; MDDUS
Third defender: Batchelor, Solicitor Advocate; Clyde & Co (for Johnson & Johnson)
Pursuer: Sutherland; Anderson Strathern (PD235/16)
First defenders: Reid; NHS Scotland Central Legal Office
Second defenders: Batchelor, Solicitor Advocate; Clyde & Co (for Johnson & Johnson)
Pursuer: Sutherland; Anderson Strathern (PD236/16)
First defenders: Reid; NHS Scotland Central Legal Office
Second defenders: Batchelor, Solicitor Advocate; Clyde & Co (for Johnson & Johnson)
12 August 2016
Introduction
[1] On 16 June 2016 Sheriff Katherine Mackie sitting in Edinburgh Sheriff Court pronounced interlocutors in four cases requesting the Court of Session to allow the cases to be remitted to this court in terms of section 92(4) of the Court Reform (Scotland) Act 2014 (“the 2014 Act”). On 8 July 2016 the cases came before me by order in terms of Rule of Court 32.2B and I made orders in respect of all four under section 92(5) of the 2014 Act allowing the proceedings to be remitted.
Background
[2] These four actions in each case arise out of the insertion of vaginal tape and mesh products for the treatment of urinary incontinence or prolapse. The sums sought range from £50,000 to £80,000. The defenders are not all the same. Johnson & Johnson Medical Ltd are defenders common to all four actions. It is averred that they are the manufacturers of the products concerned. The cases against them are founded on their alleged breach of their statutory duty in terms of the Consumer Protection Act 1987. In three of the cases the defenders include the local health board. In the fourth case the defender is a private health care company together with a medical practitioner employed by them. The cases against the health boards, private health company and practitioner aver breach of the duty to give warnings about the use of pelvic mesh products founding on Montgomery v Lanarkshire Health Board 2015 SC (UKSC) 63.
Remit to the Court of Session
[3] The Sheriff Court has exclusive jurisdiction in actions where the total value of the orders sought does not exceed £100,000; section 39(1)(b)(ii) and (2). Section 92 of the Act provides for remits from the Sheriff Court to the Court of Session. Where it is within the exclusive jurisdiction of the Sheriff Court, is not subject to simple procedure but the Court of Session would, but for the provisions of section 39(2) also have competence and jurisdiction the Sheriff Court may request the Court of Session to allow the proceedings to be remitted to that court. The sheriff may make such a request if she considers that the importance or difficulty of the proceedings make it appropriate to do so; section 92(3) and (4). Where the sheriff makes such a request she must append a note of her reasons to the interlocutor; Ordinary Cause Rule 26.2A(2).
[4] The Court of Session may, on cause shown allow the proceedings to be remitted to the Court; section 92(5). Such requests are dealt with under RC 32.2A.
[5] It is for the sheriff to determine whether the importance or difficulty of the proceedings makes it appropriate to request the Court of Session to allow the remit. The words “importance or difficulty” echoes the words of section 37(1)(b) of the Sheriff Courts (Scotland) Act 1971 which gave the sheriff power to remit cases to the Court of Session. The difference now is that the power of the Sheriff Court is only to request the Court of Session to accept a remit. The sheriff was referred to the 5 judge case of Mullan v Anderson 1993 SLT 835, which considered the test under section 37(1) of the 1971 Act. It was submitted to her that there was a two stage approach. First there required to be a determination of whether the proceedings were important or difficult and secondly the court required to exercise its discretion in considering whether it was appropriate to request the Court of Session to allow the proceedings to be remitted.
[6] These matters are however for the sheriff. This court’s function under section 92(5) is to consider whether or not cause has been shown to allow the proceedings to be remitted. In...
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...There was no direct authority on section 92(2) of the 2014 Act but assistance could be derived from the case of B v NHS Ayrshire & Arran 2016 SLT 977, paragraph 5 and from Mullen v Anderson 1993 SLT 835. [5] The claim was for £1.5m and a number of parties were accused of negligence. Importa......