Brenda Louise Rennie On Behalf Of Dmf V. Lothian Health Board
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton |
| Neutral Citation | [2010] CSOH 61 |
| Date | 11 May 2010 |
| Docket Number | A729/06 |
| Court | Court of Session |
| Published date | 11 May 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 61 | |
| A729/06 | OPINION OF LADY CLARK OF CALTON in the cause BRENDA LOUSIE RENNIE on behalf of DMF Pursuers; against LOTHIAN HEALTH BOARD Defenders: ________________ |
Pursuer: McAulay Q.C., Sutherland; Balfour + Manson LLP
Defenders: Stephenson Q.C.; Scottish Health Service, Central Legal Office
11 May 2010
Introduction
[1] This is an action raised by Brenda Louise Rennie, a solicitor, who was appointed curator bonis of DMF by interlocutor dated 7 December 2001. The pursuer sues the defenders for damages of £5,000,000 in respect of alleged negligent acts and omissions in 1980 in relation to the birth of DMF. It is not disputed by the parties that DMF was born on 18 July 1980 by emergency caesarean section, she has cerebral palsy, is incapax and always will be incapax.
[2] The case came before me on procedural roll. The two pleas of the defenders which counsel wished to discuss are as follows:
"1. The action being barred as a result of mora taciturnity and acquiescence the defenders should be assoilzied, which failing the action should be dismissed.
2. Separatim the pursuer (and Miss F as the pursuer's predecessor as DMF's legal representative) having delayed unwarrantably in prosecuting the action as a consequence of which there is a substantial risk that a fair trial will not be possible separatim the defenders being prejudiced in their ability to defend the action, the defenders should be assoilzied, which failing the action should be dismissed."
A third preliminary plea to the relevancy was not the subject of submission. The first plea in law of the defenders is directed to the common law plea. The second plea in law arises from the case law as developed in the line of authority based on Tonner v Reiach and Hall 2008 SC 1.
The History of the Action
[3] The present action was signetted on 12 September 2006 and service was accepted on behalf of the defenders on 14 September 2006. At that date DMF had passed into majority but was and remains incapax.
[4] The pleadings deal briefly with the circumstances in which the action came to be raised in Article 8 and Answer 8. On behalf of the pursuer it is averred that D's mother was unaware that there was any potential right of action at the time of D's birth. It is averred that:
"In 1999 she had a conversation with a Labour Councillor who asked about D's condition and birth and suggested to her that she might have a legal claim. This was the first time she considered this and she attended Solicitors for advice. There was a delay in obtaining the obstetric notes from Central Legal Office and thereafter an expert report was instructed in relation to the issue of negligence. A Curator Bonis thereafter required to be appointed. Papers were transferred to Messrs Balfour and Manson in January 2003 who noted that further reports were required to progress the action. Reports were then obtained from a midwifery expert and a neonatologist in relation to issues of causation. It was noted that the records supplied by Central Legal Office were poorly copied and steps were taken to locate the original notes and make proper copies. Sanction was then obtained for the instruction of further reports in relation to issues of quantum and life expectancy. A Summons was instructed and signetted and served on 12 September 2006."
The pursuer then makes averments to explain why the defenders are not prejudiced.
[5] The averments about the events leading to the initiation of legal action and the progress thereafter were supplemented by a 72 page document produced on behalf of the pursuer (6/16 of Process). I was informed by senior counsel for the pursuer that this is a summary of extracts from the files of various solicitors who had acted in relation to the legal claim of DMF from April 1999 to 3 March 2009. I also understood that this document was produced to help explain and highlight the efforts made by legal agents from time to time to progress the action and the various administrative, financial and practical difficulties encountered. There was no formal agreement in respect of 6/16 of Process. Senior counsel for the defenders stated that he could not comment on the accuracy, fairness and completeness of the chronology in 6/16 of process except insofar as there is overlap with the correspondence in the productions 7/1 to 7/41 of process. I understood from senior counsel for the defenders that he was content that 6/16 of Process should be used to illustrate the history. He did not wish to take issue with any of the extracts.
[6] The defenders' productions 7/1 to 7/41 of process relate to correspondence between agents for the defenders and solicitors, Malborough & Company and thereafter Balfour + Manson who acted for the pursuer during the period 1999-2004. Prior to 2001 when the pursuer was appointed as curator bonis, Balfour + Manson acted for Miss F, the mother of DMF. Joint Minute 17 of process relates to said productions.
[7] In answer 8 there are no factual averments directed to particular acts or omissions of the mother of DMF albeit it is averred that she and thereafter the curator "delayed unwarrantably in prosecuting the action, as a result of which there is a substantial risk that a fair trial will not be possible, et separatim the defenders have been prejudiced in their ability to defend the action". The averments draw attention to changes in the factual basis which underpin the negligence action and highlight that the first intimation of the case of fault directed at events on 15 July 1980 was made by adjustments intimated by letter dated 17 September 2007. As a result of amendment in October 2009, the sole basis of the alleged negligence now pled in the action relates to the pursuer's antenatal care on 15 July 1980. The defenders at page 28D aver that although the curator bonis was appointed on 7 December 2001 "no proceedings were raised by her for some 4.75 years after her appointment". This averment is made as part of the history. There was no attempt by the defenders in the averments or in oral submission to base the defenders' case on this period of delay alone. The averments thereafter set out the alleged difficulties and prejudice to the defenders that the delay since 1980 has caused.
[8] At the outset of submissions, I expressed some concern and reservations about dealing with the issues mainly on the basis of the pleadings, ex parte statements, productions 7/1 to 7/41 and 6/16 of process. There was some discussion about a minute and answers procedure under Rule of Court 21A and the requirement for oral evidence. Counsel for both parties wished to proceed on the basis of information which they presented to the court and with some reluctance I agreed to do so. Having considered the submissions and information presented, I consider that counsel were well founded in their submissions in this case as pled. I am not persuaded that a further focus in minute and answers, oral evidence or a detailed scrutiny of the documents referred to in 6/16 of process is necessary. The history in its broad development was not in any significant dispute.
Written Submissions
[9] Senior counsel for the defenders began to develop his submissions from a written text prepared for his own use. I invited him to provide me with a copy and I am most grateful to him that he was able to do so. I also requested that counsel for the pursuers provide a written outline if possible, prior to oral submissions. I would like to record my gratitude to counsel for both parties for their assistance in providing said written notes to assist me in considering their oral submissions. The revised note of arguments for the defenders which was provided is 19 of process. The oral submission of senior counsel for the defenders followed closely the detailed written submissions set out in 19 of Process.
Submissions by Senior Counsel for the Defenders
[10] Senior counsel for the defenders made reference to the history of the action as illustrated in the productions 7/1 to 7/41 of process. The first intimation to the defenders was a letter of 17 August 1999 seeking medical records. The earliest reference to a potential claim was 4 February 2000 (7/8 of process). The first legal aid application was refused on 10 October 2000 (7/12 of process). This was apparently because the application was raised on behalf of the mother of DMF but the mother at that time had no title to sue as DMF was then over the age of majority. On 13 June 2001 (7/16 of process) the defenders' agents were advised that legal aid had been granted to the mother of DMF. The defenders presumed that this was to obtain the appointment of a curator bonis. There was no contact with the defenders' agents from about June 2001 to July 2003 (7/18 of process). Thereafter there is correspondence on 26 November 2004 (7/41 of process) mainly about the difficulties of obtaining various medical records. Senior counsel for the defenders submitted that the pre-litigation correspondence was not helpful or focused in identifying the basis of any claim. To the extent that the correspondence suggested the basis of a claim, it apparently alleged medical negligence during the birth of DMF (7/11 of process). The summons in the present action was signetted on 12 September 2006 and accepted on behalf of the defenders on 14 September 2006. That was some seven years after the first letter from the pursuer's agents dated 17 August 1999 (7/1 of process). Senior counsel submitted that the summons did not aver a case in respect of antenatal care on 15 July 1980.
[11] In the answers lodged on 17 October 2006, the defenders included the pleas in law relating to mora and Tonner and sought further specification. There was an unopposed sist on the defenders' motion on 1 November 2006. This was recalled on 27 July 2007 on the pursuer's motion and the case was restored to the adjustment roll. During the period of...
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