A Mce V. The Reverend Joseph Hendron And Others
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Marnoch,Lord Clarke |
| Neutral Citation | [2007] CSIH 27 |
| Date | 11 April 2007 |
| Docket Number | A1523/00 |
| Court | Court of Session |
| Published date | 11 April 2007 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Clarke Lord Marnoch | [2007] CSIH 27 A1523/00 OPINION OF LORD OSBORNE in RECLAIMING MOTION in the cause A. McE. (A.P.) Pursuer and Respondent; against (FIRST) THE REVEREND JOSEPH HENDRON and OTHERS Defenders and Reclaimers: _______ |
Alt: Clancy, Q.C., E G Mackenzie; Burness, W.S. (for McSparran & McCormick, Glasgow) (First to Eighth Defenders and Reclaimers)
Cullen, Q.C., Smith; Solicitor to the Scottish Executive (Eighteenth Defender and Reclaimer)
11 April 2007
The background circumstances
[1] The pursuer in this action was born on 15 September 1953. He concludes for payment by the defenders jointly and severally or severally to him of the sum of £100,000, with interest, as damages for personal injuries sustained in consequence of events which are said to have occurred while the pursuer was a resident at St. Ninian's Approved or List D School, Gartmore House, Gartmore, Stirlingshire. The pursuer convened a total of eighteen defenders. The first to seventh named defenders are individuals convened as representing the Congregation or Order of the de La Salle Brothers. The eighth named defender is designed as the Congregation of the de La Salle Brothers. The ninth to fourteenth named defenders were persons convened as representing the Managers of St. Ninian's School, Gartmore House, Gartmore, Stirlingshire. The fifteenth named defender was designed as "The Managers of St. Ninian's School". The sixteenth named defender is an individual designed as, in religion, Brother Benedict. The seventeenth named defender was Stirling Council. The eighteenth named defender is the Lord Advocate, as representing the statutory successors to the Social Work Services Group, and the Scottish Education Department. The summons was signetted on 8 May 2000.
[2] By an interlocutor of the court, dated 29 March 2006, the ninth to fifteenth named defenders were, of consent, assoilzied from the conclusions of the summons. The sixteenth named defender did not lodge defences. In consequence, on 8 June 2004, the court decerned against him in absence for payment to the pursuer of the sum of £50,000, with interest at an appropriate rate. In terms of a Joint Minute, No. 38 of process, by an interlocutor dated 8 October 2003, the seventeenth named defender was assoilzied from the conclusions of the summons. Accordingly, only the first to eighth named defenders and the eighteenth named defender remain before the court.
[3] The pursuer's pleadings are extensive, extending to some 99 pages. I shall not attempt to summarise them here. Suffice it to say that the pursuer alleges that he was the victim of damaging and inappropriate conduct at the hands of the staff of St. Ninian's Approved School, in consequence of which he claims to have suffered both physical and psychological injury. The physical abuse alleged is of a serious nature, including deliberate assaults by punching and kicking on all parts of his body, as well as force feeding of inter alia the pursuer's "own bodily fluids", being made to suck on bars of carbolic soap, and being made to stand in a cold shower in darkness. In outline, his case against the first to eighth named defenders is based on averments to the effect that members of the de La Salle Order were sent to work at the Approved School. Most of the teachers in the school were members of that Order. The headmaster, a Brother Thadius, was a member of the Order. So far as the eighteenth named defender is concerned, the pursuer's case is based upon averments in Condescendence I to the effect that he represents the Scottish Ministers, who are the statutory successors to the Secretary of State for Scotland, by virtue of section 53 of the Scotland Act 1998
"in respect of certain functions including approved schools and list D schools formerly performed by the Scottish Education Department and the Social Work Service Group (S.W.S.G.), on behalf of the Secretary of State."
The pursuer avers that the certificate of approval of St. Ninian's School was issued by the Scottish Education Department prior to 7 June 1963. The pursuer also avers in Condescendence V that, on 20 June 2003, the sixteenth named defender was convicted in the High Court of Justiciary in Edinburgh of assaulting the pursuer on various occasions between 7 June 1963 and 31 December 1964, by dragging him bodily from his bed, pulling him along corridors and compelling him to take a cold shower, forcibly feeding him with sago and compelling him to eat his own vomit, and repeatedly punching and kicking him on the body and striking him with knotted leather or rubber laces, all to his injury. He also avers that the sixteenth named defender was convicted of assaulting other children in the school and of certain sexual offences. In Condescendence VII, the pursuer sets forth the basis of his case against the first to eighth named defenders. In Condescendence VIII the pursuer makes a case based upon the alleged breach of statutory duties of the headmaster of the school in question. In Condescendence X the pursuer makes a case against those for whose wrongdoing the eighteenth named defender is said to be liable. In Condescendence XI the pursuer specifies the nature and extent of the consequences of the acts and omissions which are the basis of his case. In Condescendence XII, averments are made relating to the application of the provisions of the Prescription and Limitation (Scotland) Act 1973 to the circumstances of this case. It should also be mentioned that all of the defenders remaining before the court have tabled a number of pleas-in-law, including challenges to the relevance of the pursuer's case against them and also pleas to the effect that his case is time-barred in terms of the 1973 Act.
[4] By interlocutor of 2 October 2002, the case was appointed to the Procedure Roll, but was not heard on that Roll until 11 June 2004, on account of amendment and other procedure taking place between those dates. The Procedure Roll debate commenced on 11 June 2004, but was interrupted by further amendment procedure, avizandum ultimately being made by the Lord Ordinary on 13 December 2004. On 13 September 2005, the Lord Ordinary, having resumed consideration of the cause pronounced an interlocutor in, inter alia, the following terms:
"(1) Repels the pursuer's first and second pleas-in-law only so far as relating to breach of statutory duty, and excludes from probation the averments in Articles 8 and 9 of Condescendence.
(2) Excludes from probation the following averments as being irrelevant and/or lacking in specification,
(a) at page 11B-C: 'some of the staff who worked at the school were
employed by the eighteenth defender's statutory predecessors'
(b) at page 11C-D: the passage relating to the school managers'
insurance arrangements, inserted by the pursuer's Answers number 61 of process beginning with the words 'With reference to the averments introduced by the tenth to fifteenth defenders ... ' and ending with the words 'called upon to admit or deny the existence of insurance as a matter within their knowledge.'
(c) at page 37E to 38A: 'The pursuer believes and avers that the
authorities including the SED and the social workers knew what was happening at the school prior to 1963.' together with the related averment at page 61C: 'It had a duty to take reasonable care not to send boys such as the pursuer to a school where they were likely to be assaulted.'
(d) the passage beginning at page 61B with the words 'had a duty to
inspect the school from time to time, and at least every 6 months' to and including the words 'placed out on licence as soon as possible. It' (at page 61C-D).
(e) the passage beginning at page 61D-E with the words 'After
1 November 1963, the Secretary of State had a duty' to and including the words 'directions had not been complied with' (at page 62B).
(3) Allows a preliminary proof before answer on the question of the status and circumstances of the school managers, including the terms and conditions of their appointment; whether they were acting as individuals or whether they constituted some sort of unincorporated association; the identity of those managers in post during 1963 to 1966; and whether the managers were employers such as they would be vicariously liable for the acts of the abusers referred to on record and Assigns day of at 10 a.m. as a diet thereon; grants diligence for the citation of witnesses and havers.
(4) Allows a preliminary proof before answer on time-bar issues in terms of both section 17(2)(b) and section 19A to be conducted on the same basis as that outlined in paragraph [18] of B v Murray 2004 S.L.T. 967, namely that the proof should proceed on the basis that the pursuer's averments about what happened to him at St. Ninian's should be taken pro veritate, and the issues to be judged on a preliminary basis should be directed to whether or not the pursuer can satisfy the terms of section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973, failing which whether the court should exercise its discretion in terms of section 19A of the aforementioned Act, to take place after the preliminary proof referred to in the foregoing paragraph, Assigns day of at 10 a.m. as a diet thereon; grants diligence for the citation of witnesses and havers. ... ".
Against that interlocutor, the pursuer, the first to eighth named defenders and the eighteenth named defender have all reclaimed.
The grounds of appeal
[5] The grounds of appeal for the first to eighth named defenders are in the following terms:
"1. The Lord Ordinary erred in failing to sustain the first plea-in-law for the first to eighth defenders relating to time-bar. In particular the Lord Ordinary erred:
(1) in holding (at paragraphs [130] to [135]) that the relevancy and
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