Michelle Hepburn V. Royal Alexandria Hospital Nhs+glasgow Infirmary
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord President,Lord Carloway |
| Neutral Citation | [2010] CSIH 71 |
| Court | Court of Session |
| Published date | 27 July 2010 |
| Year | 2010 |
| Date | 27 July 2010 |
| Docket Number | A502/98 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Reed Lord Carloway | [2010] CSIH 71 A502/98 OPINION OF THE LORD PRESIDENT in causa MICHELLE HEPBURN, A.P. Pursuer and Reclaimer; against (FIRST) ROYAL ALEXANDRA HOSPITAL NHS TRUST and (SECOND) GLASGOW ROYAL INFIRMARY Defenders and Respondents: _______ |
Alt: Dunlop; R F Macdonald
27 July 2010
Introduction
[1] The reclaimer seeks damages from the first and second respondents on the ground that she has suffered loss, injury and damage as result of medical care which they provided. Due to a rare congenital condition the reclaimer has no vaginal orifice. In October 1993 she was referred to Dr David Gilmore, a Consultant Gynaecologist employed by the first respondents. In November 1994, he performed a total abdominal hysterectomy and a bilateral oophorectomy. In February 1995 she was referred to Mr Webster, a Consultant Plastic Surgeon employed by the second respondents, who performed a split skin graft reconstruction of the vagina and supplementary corrective procedures. From August 1995 until October 1997 further corrective procedures were carried out by other surgeons employed by both respondents. This action was raised in April 1998. On 13 December 2007, the respondents' lodged a minute craving its dismissal on the ground of prejudice caused by inordinate and inexcusable delay in its progression. This reclaiming motion is brought against the Lord Ordinary's decision of 30 May 2008 to dismiss the action.
Procedural History
[2] When the action was first raised, the case against Dr Gilmore averred that he had removed the reclaimer's ovaries unnecessarily, that he had a duty to retain them and that he had a duty to advise her that their removal was not necessary, allowing her to reach her own decision about whether that should be done. The case against Mr Webster averred negligence in his performance of the surgical procedures and in the post-operative care which he provided. According to the court's interlocutor, on 28 May 1998, on the motion of the second respondents, the action was sisted for further investigation. Thereafter, the reclaimer's then solicitors made no significant progress in the action for some six years, despite repeated letters from the respondents' representatives making enquiries in that regard: no application for legal aid was made, no hospital records were recovered and no expert report was instructed. In March 2002 Dr Gilmore died. On 21 September 2004, the reclaimer's solicitors wrote to the respondents' representatives formally to intimate their withdrawal from acting, indicating that they had been unable to contact the reclaimer and were without instructions. On 11 November 2004, on the respondents' motion, the sist was recalled and the reclaimer was ordained to intimate to the Deputy Principal Clerk within 14 days whether she intended to proceed with the action (cf Rule 30.2).
[3] The reclaimer instructed her current solicitors on 23 November 2004, after which the claim proceeded. On 23 December on the unopposed motion of the first respondents, the sist was recalled, defences were received late, on cause shown, and the action was again sisted for further investigation. A similar motion made on behalf of the second respondents was granted on 19 January 2005. Thereafter, the reclaimer's solicitors undertook work in order to progress the action, obtaining medical records, expert reports and sanction from the Legal Aid Board. Following a number of requests to the respondents' representatives, they also, in the presence of the respondents' legal advisers, precognosced Mr Webster in January 2007. On 21 November 2007, on the reclaimer's motion, the sist was recalled and she was ordained to lodge an Open Record within 14 days. In the same month, the reclaimer's agents intimated 10 pages of typed adjustments to the respondents. In addition to the averments regarding the lack of need for the oophorectomy and the lack of informed consent, the proposed case against Dr Gilmore now avers that he ought to have offered her medical therapy in the first instance with retention of her ovaries, that he instigated reconstructive surgery without counselling her on the risks and benefits involved, and without arranging a joint consultation with a specialist plastic surgeon, and that he failed in his duty to warn of the risk of rectal damage. The case against Mr Webster based on operative negligence has been replaced with a case based on a failure to discuss the risks and benefits of the surgical procedure he performed and thus to obtain informed consent. These changes prompted the respondents to lodge the minute seeking dismissal of the action.
The decision of the Lord Ordinary
[4] The Lord Ordinary considered that the responsibility for the delay in progressing the action lay with the reclaimer's former solicitors and that, given that initial delay and the complexity of the case, her current solicitors acted with reasonable dispatch and could not be criticised. Nevertheless, she considered that "..., notwithstanding the best efforts of the present agents, the original lengthy period of inactivity has resulted in a situation where there has overall been an inordinate and inexcusable delay resulting in unfairness to the defenders" (at para [24] - [25]). A material consideration in her decision was the fact that the adjustments resulted in cases which were, in material respects, different from those which the respondents would initially have investigated. The main reasons for her decision are set out in the following passage (at para [25]):
"The case against Dr Webster is now wholly different and is made only 12 years after his last involvement in the case. It is entirely unrealistic and unfair to expect him to address and indeed to remember, all that might have taken place so long ago on the issue of informed consent now being raised for the first time. The situation is even worse regarding the new case made against Dr Gilmore since no investigation regarding that can be done beyond what is revealed in the papers. I recognise that such a situation might have arisen anyway, given Dr Gilmore's untimely demise. However, I am of the view that had the original agents proceeded to investigate and prepare the case with requisite dispatch, it is highly likely that the cases pled would have been identified at a time when Dr Gilmore could have been asked about them. It took the new agents less than three years to reach the stage of revising the pleadings, and that was in a situation where they must have been to some extent hampered by the original delay of six years. The original case against Dr Gilmore has not been entirely altered but I do not think it would be fair in all the circumstances even to let that case go further."
In dismissing the action, the Lord Ordinary upheld the first plea in law for the first respondents and the second plea in law for the second respondents, which pleas in law were to the effect that the reclaimer's averments were irrelevant et separatim lacking in specification.
Submissions on behalf of the reclaimer
[5] Mr Hajducki submitted that the Lord Ordinary did not have an inherent power to dismiss the action, notwithstanding the decision in Tonner v Reiach and Hall 2008 SC 1, which might need to be reconsidered by a larger bench. The "inherent jurisdiction" was primarily a nineteenth century creation of the English common law (Cocker v Tempest (1841) 7 M. & W. 502, per Alderson B at pages 503-504), which conceived the "court" as an emanation of the King's Court at Westminster. In contrast, the Court of Session had been created by statute. Its jurisdiction derived from an Act of Parliament of 1532, which reserved the power to fix the practice and procedures of the Court to the King (Act 1532, C36; APS ii, 335, C2). That power was passed to the Court by an Act of 1540, which prescribed that it was to be exercised by the president, vice-president and senators (Act 1540, C93; APS ii, 371, C10). That statutory power (to regulate procedure etc by act of sederunt) was now reflected in section 5 of the Court of Session Act 1988. It ensured adequate notice was given of procedural changes and maintained a consistency of approach by Lords Ordinary. The Court's only residual power to regulate its own procedure was that required to explicate its jurisdiction (Erskine, Institute I, ii, 8). It arose out of necessity and was not comparable to a power to provide "a just and equitable solution" (DJL v The Central Authority (2000) 201 CLR 226, at para 25; Mayo Associates SA v Cantrade Private Bank Switzerland (CI) Ltd [1998] JLR 173, per Smith, JA at pages 188-9).
[6] The circumstances both in Tonner and in the present action were not novel and did not necessitate an exercise of any residual power. In England, the power to dismiss an action for want of prosecution had been recognised for some time (Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229). Similar issues had already arisen in Scotland (Esso Petroleum Company Ltd v Hall, Russell & Company Ltd (No.2) 1995 SLT 127; cf Newman Shopfitters Ltd v MJ Gleeson Group plc 2003 SLT (Sh.Ct.) 83 and McKie v MacRae 2006 SLT 43). Neither were considerations of a fair trial under Article 6 of the European Convention on Human Rights novel in 2007 (cf Tonner, at para [102]). The draconian remedy of dismissal marked a significant departure from the Court's previous procedure, and ought to have been effected by an act of sederunt. The authorities cited in Tonner did not support the existence of an inherent jurisdiction to dismiss an action. They concerned not the regulation of procedure, but contempt of court (Hall v Associated Newspapers Ltd 1979 JC 1) or abuse of process (Levison v The Jewish Chronicle Ltd 1924 SLT 755, per Lord Ashmore at page 759 - 760; Shetland Sea Farms Ltd v Assuranceforeningen Skuld ...
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