Board Of Managers Of St Mary's Kenmure+cora Foundation V. East Dunbartonshire Council+east Dunbartonshire Council
| Jurisdiction | Scotland |
| Judge | Morag Wise, QC |
| Neutral Citation | [2012] CSOH 198 |
| Court | Court of Session |
| Published date | 15 January 2013 |
| Year | 2012 |
| Date | 27 December 2012 |
| Docket Number | A29/11 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 198 | |
| A29/11 A30/11 | OPINION OF MORAG WISE, Q.C, Sitting as a Temporary Judge in the cause BOARD OF MANAGERS OF ST MARY'S KENMURE Pursuers; against EAST DUNBARTONSHIRE COUNCIL Defenders: And CORA FOUNDATION Pursuers; against EAST DUNBARTONSHIRE COUNCIL Defenders: ________________ |
Pursuer: Lake, QC, A Jones, solicitor advocate; bto
Defender: Thomson, QC, Balfour; Simpson & Marwick
27 December 2012
Introduction
[1] These two cases, which arise out of the same incident and in which I heard a lengthy procedure roll discussion, raise the question of whether section 10 of the Riotous Assemblies (Scotland) Act 1822 ("the 1822 Act") provides a remedy to the operators and/ or the heritable proprietors of a secure unit residential facility. Cora Foundation are the heritable proprietors of such a secure unit, St Mary's Secure Unit, Bishopbriggs ("the premises"). The Board of Managers of St Mary's Kenmore are the operators of the premises. An incident described by the pursuers in both actions as a riot occurred at the said unit on the evening of Saturday 29th and the morning of Sunday 30 March 2008. The pursuers in both actions claim to have suffered loss and damage as a result of the said incident. The defenders in both actions seek to have them dismissed on the basis that the action is irrelevant. In the Board of Managers case there is a secondary position that even if the action is relevant, the second conclusion is incompetent and should be dismissed. I heard a lengthy procedure roll discussion on these matters. I have decided that the first conclusion of each action is relevant for enquiry but that the second conclusion and associated averments in the Board of Managers case, which make a claim for loss of revenue, is not a relevant claim arising under the 1822 Act and should be deleted. The arguments presented to me were very detailed. Given the potential importance of the matter I will first summarise those submissions, at least insofar as pertinent to the decision I have made. I will then give my reasons for that decision.
[2] Section 10 of the 1822 Act, as amended, provides;-
10. Provision for recovering damages sustained in Scotland.
In every case where any damage or injury shall be done to any church, chapel, or building for religious worship, or to any house, shop, or other building whatsoever, or any fixtures attached thereto, or any furniture, goods, or commodities therein, by the act or acts of any unlawful, riotous, or tumultuous assembly of persons, or by the act or acts of any person or persons engaged in or making part of such unlawful, riotous, or tumultuous assembly, the party injured or damnified thereby shall be entitled to recover full compensation for the loss or injury, by summary action against the council (being a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994) within whose area the loss or injury shall have been sustained; which action shall and may be brought before any competent court in Scotland.
The Defenders' arguments
[3] Junior counsel for the defenders tendered a note of his submissions that ran to 116 pages. I will summarise only the main points made. In a comprehensive and well presented oral argument, Mr Balfour emphasised that there are two important features of the provision. First, the person entitled to recover compensation is "the party injured or damnified". Secondly, the provision concerns damage by the acts of any "unlawful, riotous or tumultuous assembly of persons". The argument centred on the appropriate interpretation of these terms. It was contended that, properly construed, the words "unlawful, tumultuous or riotous assembly" were not apt to describe a disturbance involving persons detained in a secure unit residential facility. Further the group was not an "assembly" within the meaning of section 10, nor were they acting "riotously" within the meaning of section 10. In any event, the term "party injured" in section 10 does not cover either owners or operators of such a facility. The legislation is not apt to include the party who has the care, custody and control of the very people who are causing the disturbance. In urging a purposive approach to the interpretation of the provision, Counsel made the following nine propositions;-
(1) The task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the provision to be construed.
(2) The modern understanding of this task is to give effect to Parliament's purpose.
(3) This purposive approach to statutory interpretation requires the provision to be read in the context of the statute as a whole, and the historical social and factual context of the situation which led to its enactment.
(4) It is necessary to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs.
(5) In order to ascertain the intention of Parliament the court must look at all the admissible surrounding circumstances. This includes not only other provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which the statute was intended to remedy.
(6) Courts will be reluctant to extend the application of a provision to a new state of affairs or a fresh set of facts where the subject matter is different in kind or dimension from that for which the legislation was passed.
(7) The starting point in the purposive approach is that language is to be taken to bear its ordinary meaning in the general context of the statute.
(8) A purposive approach may lead to a strained construction, beyond the literal meaning of the words or what they would mean in ordinary usage. It is perfectly proper to adopt such a strained construction if that is necessary in order to give effect to the purpose of the provision.
(9) The court ought not to interpret the legislation in a manner which is manifestly absurd or unreasonable. It should avoid a construction that produces an absurd result.
Reference was made to a number of authorities in support of those propositions. In particular, reliance was placed on the speech of Lord Bingham in R (on the application of Quintavalle) v Human Fertilisation and Embryology Authority [2003] 2 AC 687 at 695, the guidance given by Lord Wilberforce in his dissenting opinion in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 at 822 and the speech of Lord Steyn in the same case. Particular emphasis was placed on the following passage from the speech of Lord Bingham of Cornhill in R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Limited [2001] 2 AC 349 at 386;-
"The task of the court is to ascertain the intention of Parliament; you cannot look at a section, still less a subsection, in isolation, to ascertain that intention; you must look at all the admissible surrounding circumstances before starting to construe the Act. The principle was stated by Lord Simonds in Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436, 461:
'For words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use "context" in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those other legitimate means, discern the statute was intended to remedy'."
Junior counsel relied on this and other passages to argue that, while the appropriate starting point is that language is to be taken to bear its ordinary meaning in the general context of the statute, the courts may employ other recognised aids. Those may be internal to the statute, using other provisions to shed light of the meaning of the words under consideration or they may be external to the statute, such as its background setting and its legislative history, reports of Commissions and legislative antecedents. It was accepted that courts should approach the use of external aids with circumspection. Such aids cannot be used to displace meanings which are otherwise clear and unambiguous and not productive of absurdity - Fothergill v Monarch Airlines Ltd [1981] AC 251, per Lord Diplock at 279-280.
[4] In support of the proposition that it may be perfectly proper to adopt even a strained construction to enable the object and purpose of legislation to be fulfilled, Counsel relied on the dicta of Lord Clyde to that effect in Clarke v General Accident Fire and Life Assurance Corporation Plc [1998] 1WLR 1647. For the proposition that the court ought not to interpret the legislation in a manner which is manifestly absurd or unreasonable reference was made to R (on the application of Edison First Power Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 4 All ER 209 and Bennion on Statutory Interpretation (5th edition) at page 969.
[5] Turning to the legislation itself, it was noted that although the short title, the Riotous Assemblies (Scotland) Act 1822, may imply otherwise, sections 1 to 9 of the Act originally related to England but were repealed in 1827. The recital to the 1822 Act makes specific reference to the Statute of Hue and Cry and to the Riot Act of 1714. As originally enacted, the 1822 Act provided for compensation actionable against the Town Clerk of the City or Burgh within which the loss or injury was sustained, or against the Clerk of Supply of the County of Stewartry in which such loss was sustained outside a county or burgh. In 1973 there was a change from liability...
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