Jill Clark (ap) Against Greater Glasgow Health Board
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2016] CSOH 24 |
| Docket Number | A605/05 |
| Published date | 11 February 2016 |
| Date | 04 February 2016 |
| Court | Court of Session |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 24
A605/05
OPINION OF LORD STEWART
In the cause
JILL CLARK (AP)
Pursuer;
against
GREATER GLASGOW HEALTH BOARD
Defenders:
Pursuer: Smith QC: Drummond Miller LLP
Defenders: Stuart; NHS Scotland Central Legal Office
Interested Parties: Duncan QC; Clyde & Co
4 February 2016
[1] This is a clinical negligence case in which I heard evidence and submissions over 21 days in the period 6 January to 18 February 2015 and then made avizandum. While the case was at avizandum an application was made on behalf of the pursuer to allow a minute of amendment to be received. The object was to add a new, “risk disclosure” case and to reopen the proof. I heard the motion concerning the proposed amendment on 26 May 2015 and made avizandum. By interlocutor dated 18 December 2015, I refused the motion and granted leave to appeal. The opinion giving reasons was issued to parties by way of email attachment at or shortly after 09.00 on 18 December 2015, I believe, and the opinion was published on the Scotcourts website later that day.
[2] On 24 December 2015, I received telephone representations on behalf of the pursuer’s counsel. The main point of concern was that my opinion of 18 December was perceived to make an imputation of professional negligence against counsel. I arranged for the opinion to be “unpublished” from the Scotcourts website pending clarification after the holiday period. On 5 January 2016, at the beginning of the new term, my clerk emailed parties to explain the position. On 11 January 2016, e-mail exchanges having taken place, the following motion was enrolled on behalf of the pursuer:
“(a) to request that Lord Stewart provides a supplementary note in relation to and clarifying his views regarding the pursuer’s legal representation as contained within his decision of 18 December 2015 [2015] CSOH 176; and (b) to suspend ad interim the republication of the decision of 18 December 2015 on the Scottish Courts website unless and until: (i) the supplementary note has been issued; AND (ii) any reclaiming motion is marked in relation to the said decision and/or the final decision to be issued in this case.”
The motion was put out for hearing on 15 January 2016. The motion was starred, i.e. marked as requiring the appearance of counsel, but unopposed. Mr Smith QC appeared for the pursuer as he had done on 26 May 2015. Mr Stuart appeared for the defenders as he had done as junior counsel all along. Mr Duncan QC appeared at the bar to represent the interests of the pursuer’s original counsel, instructed on behalf of their professional indemnity insurers, and asked to be heard. His application was not opposed by Mr Smith QC or by Mr Stuart. I allowed Mr Duncan QC to be heard.
[3] Shortly before the hearing parties had agreed among themselves that the pursuer’s motion would be dropped if the opinion of 18 December 2015 could be republished with an added paragraph in the following terms:
“[52] Since the initial publication of my opinion on 18 December, it has been brought to my attention that passages of the opinion could be read as imputing negligence on the part of the pursuer’s solicitors and counsel. I would like to clarify that I did not intend to make any such imputation.”
[4] I was not convinced that I could add to an opinion already issued and proposed that the matter should be dealt with by issuing a note explaining the disposal of the pursuer’s motion (above) with the original opinion appended. This course is agreeable in principle; and this is what I now do.
[5] Mr Duncan QC highlighted two passages in the opinion of 18 December 2015 as being of concern, namely paragraphs [16] and [25] where reference is made respectively to “a reasonably competent lawyer” and “any reasonably competent medical negligence litigator”. The context has to be understood. The issue was whether the new case sought to be added by amendment could have been tabled earlier. The issue was focused in paragraph 3 of the defenders’ grounds of opposition to the motion to amend; and the issue as focused involved the question whether it might have been known that a “risk disclosure” case was available to the pursuer, assuming the facts to be supportive, before the Supreme Court handed down its judgment in the case of Montgomery v Lanarkshire Health Board on 11 March 2015. The issue was not whether the law on “risk disclosure” was categorically this or categorically that but whether the view of the law endorsed by the Supreme Court in Montgomery was one that could have been responsibly presented before the Supreme Court made its decision. Mr Smith QC acknowledged that the pursuer’s then senior counsel must have had special knowledge because he had appeared for the health board in Montgomery. I thought that it was possibly unfair to the pursuer and to her then senior counsel to decide the matter on the basis of senior counsel’s special knowledge; and I proposed that the matter should be judged by an objective standard of knowledge, namely the standard of the “reasonably competent” practitioner. My impression at the time was that this formula was agreeable to Mr Smith QC.
[6] I was not sensitive to the fact that the expression “reasonably competent” might be construed as raising a question of professional negligence. I should like to clarify that I did not intend to make any imputation of professional negligence against the pursuer’s counsel or solicitors. As I hope appears from the opinion my concern was and is, given the objective standard of knowledge, that there was effectively no explanation as to why the “risk disclosure” case had not been tabled earlier. My private view was that the likeliest explanation was that a conscious judgement had been made not to attempt to pursue a “risk disclosure” case. This is hinted at in paragraph [15] of the opinion of 18 December 2015. There was some confirmation by Mr Duncan QC at the hearing of the present motion on 15 January 2016 that a judgement had been made although, to be fair, generally Mr Duncan QC made it plain that his instructions were not to revisit the merits of the application for amendment. I did not in my opinion of 18 December 2015 purport to assess whether any such judgement was a good one or a bad one; or purport to decide whether, if such a judgement had been made, it would have favoured allowing the amendment or would have been a factor weighing against. Still, given the indications that a judgement was made, I am reinforced in my opinion that some preliminary inquiry would be called for, assuming the defenders were to state the requisite plea or pleas, before the question of allowing the amendment could be considered.
[7] I should also mention that I referred to the original senior counsel’s health at paragraph [2] of the opinion of 18 December 2015 as a matter of fairness to senior counsel. I did this because of the risk that an adverse inference might otherwise have been drawn from the fact that senior counsel was not instructed for the hearing of 26 May 2015; and on the basis that these health issues had been referred to in open court. I also deliberately distanced the original senior counsel from the point about the expert report obtained from Dr Milne referenced at paragraph [41] of the opinion of 18 December 2015. I did this because I thought that the submission made on the point by Mr Smith QC was possibly based on incomplete information [see also, written submissions for the pursuer in support of the motion of 26 May 2015 at paragraphs 6.3 to 6.6].
[8] There is now a question as to whether this note with its appendix, being the opinion of 18 December 2015, should be issued and published or should be issued only after the parties have had an opportunity of reviewing its terms in draft and commenting. Issuing a judgment in draft for comment is something I have done [Lyons Laing v Land 2001 SLT 1246 (Note)]: but it is a practice to be followed only in exceptional circumstances. The circumstances here are unusual but not I think exceptional. What I propose to do is to issue the note to all parties but to embargo publication on the Scotcourts website for seven days reserving the right to parties to request non‑publication. It is undesirable to withhold judgments from publication on the internet if there are no “interests of justice” reasons. When the system of internet publication was introduced the consensus was that it would substitute for the previous practice of “advising” judgments by reading them out in open court and thereby making them available to the public and the press. In those days the Rolls of Court listed forthcoming advisings.
[9] There remains the question of the substantive judgment in the claim for damages. Immediately after this note has been published on the internet (or definitively withheld from publication on the application of one or more parties), the substantive interlocutor will be signed and the substantive opinion will be issued to parties with an embargo on publication for seven days to allow parties to make representations against publication if so advised. The substantive decision has been delayed so that the question of amendment could be dealt with “before final judgment”. The substantive opinion was finalised on 22 December 2015. It has since been withheld pending resolution of the issue about the opinion of 18 December 2015.
[10] I shall allow the pursuer’s motion to be dropped and of consent reissue the opinion of 18 December 2015 as an appendix to this note. I have found the expenses of the hearing on the pursuer’s motion to be expenses in the cause as between the pursuer and the defenders and quoad ultra I have made no finding in expenses.
APPENDIX
OUTER HOUSE, COURT OF SESSION
A605/05
OPINION OF LORD STEWART
In the cause
JILL CLARK (AP)
Pursuer;
against
GREATER GLASGOW HEALTH BOARD
Defender:
Pursuer: Smith QC, Arabella Tait advocate; Drummond Miller...
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Reclaiming Motion By Jill Clark (ap) Against Greater Glasgow Health Board
...legal representation as contained within the earlier decision. On 4 February 2016, the Lord Ordinary issued a supplementary note ([2016] CSOH 24). At advising, on 12 February 2016, the Lord Ordinary granted decree of absolvitor ([2016] CSOH 25). The pursuer reclaimed. Rule 38.6(1) of sch 2 ......
- Jill Clark (ap) Against Greater Glasgow Health Board