Ap (on Behalf Of Rp) Against (first) Dr Janice A Duncan, Dr J S Bumbra, Dr K J Thompson, And Dr A Crosby, And (second) Dr Pauline Fleming
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2016] CSOH 111 |
| Court | Court of Session |
| Date | 26 July 2016 |
| Published date | 26 July 2016 |
| Docket Number | A576/05 |
| Year | 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 111
A576/05
OPINION OF LORD GLENNIE
in the cause
AP (on behalf of RP)
Pursuer
against
(FIRST) DR JANICE A DUNCAN, DR J S BUMBRA, DR K J THOMPSON, and DR A CROSBY, and (SECOND) DR PAULINE FLEMING
Defenders
Pursuer: McLean QC; Anderson Strathern LLP
Defenders: Jones (solicitor advocate); BTO Solicitors LLP, MDDUS
26 July 2016
Introduction
[1] This is a note of objections to the report of the Auditor in an action of damages brought by the pursuer on behalf of her child against her GP practice (the first defenders) and the locum who attended her there on at least one relevant occasion (the second defender).
Background
[2] In the action the pursuer sought reparation for medical negligence in connection with events occurring in 1996 and 1997, when she was pregnant with her son. The action was raised in August 2005. The only defenders at that time were the partners in her GP practice. The action was, of consent, withdrawn from the procedure under Chapter 43 of the Rules of Court and appointed to proceed as an ordinary action. The cause was sisted until August 2007. Thereafter the defenders lodged defences.
[3] An account of proceedings in the action from that time onwards makes for unhappy reading.
[4] In June 2008 the cause was appointed to the procedure roll on the defenders’ preliminary pleas.
[5] On 5 December 2008, on the unopposed motion of the pursuer, and of consent, the diet of Procedure Roll fixed for that day was discharged with no expenses due to or by either party in respect of that discharge.
[6] There followed a period of amendment and adjustment which continued until 20 November 2009 when the court allowed the record to be amended in terms of the minute of amendment for the defenders and answers for the pursuer thereto with no expenses due or by either party.
[7] On 16 December 2009 the diet of procedure roll, which had been re-fixed for 18 December 2009, was again discharged on the unopposed motion of the pursuer. On this occasion the court found the pursuer liable (as an assisted person) for the expenses of the discharge.
[8] The pursuer lodged a further minute of amendment on that day, initiating an amendment process which continued until 5 February 2010, when the court allowed the Record to be amended in terms of the minute of amendment and answers. The court found the pursuer liable (as an assisted person) to the defenders in the expenses occasioned by the amendment.
[9] The amendment of 5 February 2010 instructed a case against the second defender, who was brought into the action at that time.
[10] On 21 September 2010, on the motion of the pursuer and of consent, the court withdrew the cause from the procedure roll and restored it to the adjustment roll for a period of 8 weeks.
[11] That initiated a further period of amendment and/or adjustment which came to an end on 2 March 2011 when the court, or the motion of the pursuer and of consent, allowed the further amended closed record to be received.
[12] The cause was again appointed to the procedure roll on the first and second defenders’ preliminary pleas. The hearing was fixed for 11 November 2011.
[13] On 10 November 2011, on the opposed motion of the pursuer, the procedure roll hearing due to take place the next day was discharged. The pursuer was given twenty eight days to lodge a minute of amendment, initiating another amendment process. The court expressed displeasure at yet another discharge of the procedure roll hearing, and made various orders for expenses to which I refer below.
[14] The new amendment process came to an end on the 17 May 2012 when the court allowed the record to be amended in terms of the minute of amendment and answers. The pursuer was found liable (as an assisted person) to the defenders in the expenses occasioned by the amendment.
[15] The cause was again withdrawn from the procedure poll and appointed to the by order (adjustment) roll.
[16] On 12 June 2012, on the motion of the first defenders, and of consent, the cause was again appointed to the procedure roll on the first plea-in-law of the first defenders.
[17] The hearing on the procedure roll took place on 2 November 2012. By interlocutor of 8 March 2013 the first defenders’ motion seeking dismissal of the action was refused and parties were allowed a proof before answer of their respective averments on record. On 2 April 2013 the first defenders were found liable to the pursuer in the expenses of the procedure roll diet of 2 November 2012.
[18] A two week diet of proof before answer was fixed to commence on 13 January 2015.
[19] On 17 November 2014 the pursuer sought to amend yet again. A minute of amendment was lodged on her behalf. However, that amendment process was never concluded.
[20] The action settled on 9 January 2015, the Friday before the proof was due to commence.
[21] A joint minute was settled between the parties. On 4 March 2015 the court pronounced an interlocutor giving effect to the terms of the joint minute and making a number of orders relevant to the question of expenses.
The relevant orders
[22] As is apparent from the above narrative, the court has on a number of occasions made orders for expenses against the pursuer. There are, however, five relevant interlocutors (court orders) which require to be considered in more detail.
Interlocutor of 10 November 2011
[23] The interlocutor of 10 November 2011 was made in the context of an opposed motion by the pursuer to discharge the diet of procedure roll fixed for the following day. After granting the motion to discharge and dealing with consequential procedural matters, the court:
(1) reserved all questions of expenses as between the pursuer and the first defenders; but
(2) found the pursuer liable (as an assisted person) to the second defender in the expenses of process since 5 February 2010 (including the expenses of the discharge of the procedure roll hearing) except insofar as already dealt with.
By way of explanation, I have already noted that 5 February 2010 was the date when the pursuer was allowed to amend to bring the second defender into the action. The interlocutor of 10 November 2011 therefore found the pursuer liable to the second defender in the whole expenses to date of the process insofar as directed towards her.
[24] It is clear from the minute of proceedings that the court expressed its displeasure at the need for yet another procedure roll hearing to be discharged and indicated that this should be reflected by way of awards of expenses. The award of expenses as between the pursuer and the second defender had been agreed between the parties. The court reserved the expenses as between the pursuer and the first defenders and appointed the cause to call by order in the New Year to deal, among other things, with any motion that might be made in respect of those expenses.
Interlocutor of 5 December 2011
[25] The question of expenses as between the pursuer and the first defenders was dealt with of consent without waiting for the cause to call by order in the New Year. In an interlocutor dated 5 December 2011, on the motion of the pursuer and of consent, the court found the pursuer liable (as an assisted person) to the first defenders in the expenses of the process from 1 July 2008 to 10 November 2011 (such expenses to include the expenses of the discharge of the diet of procedure roll on that day) except insofar as already dealt with.
Interlocutor of 17 May 2012
[26] As narrated above, on 17 May 2012 the court allowed the record to be amended in terms of the minute of amendment for the pursuer and answers for the defenders. The pursuer was found liable (as an assisted person) to the defenders in the expenses occasioned by the amendment.
Interlocutor 2 April 2013
[27] A discussion on the procedure roll eventually took place on 2 November 2012. On 8 March 2013 the court refused the first defender’s motion for dismissal of the action and allowed parties a proof before answer of their averments on record. On 2 April 2013 the court found the first defenders liable to the pursuer in the expenses of the procedure roll hearing of 2 November 2012.
Interlocutor of 4 March 2015
[28] As already noted, the action settled in 2015. Parties entered into a joint minute. The interlocutor of 4 March 2015 gave effect to that joint minute and went on to make the following orders (some opposed, some of consent) relevant to the question of expenses:
(1) it certified Dr Shaw, Dr Stanhope, Peter Davies, John Pollock, Dr Edward Charles Ward and Dr Hewitt as skilled witnesses for the pursuer;
(2) it found the defenders jointly and severally liable to the pursuer in the expenses of process, including the expenses of the motion then before the court; and
(3) it found the agents for the pursuer entitled to charge an additional fee in terms of Rule of Court 42.14 (3) under heads (a), (b), (e) and (g).
[29] I should just make this comment about the order for expenses referred to in sub-para (2) above, in terms of which the defenders were found liable to the pursuer in the expenses of process. It is trite law that, once made, an order for expenses cannot be altered say by way of appeal. It follows that any subsequent order for expenses can only relate to expenses not already disposed of. The qualification sometimes put in an order for expenses, dealing with the expenses of process “except in so far as already dealt with”, while providing helpful clarification and reassurance, is in fact unnecessary since that qualification is implied into the order as a matter of law.
Issues arising from the Auditor’s Report
[30] The pursuer’s account of expenses was lodged on 26 March 2015, under reference to the order for expenses pronounced by the court on 4 March 2015. Objections to that account were focused in a list of objections lodged on behalf of both defenders. No distinction was made, as I understand it, between the...
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