Mitchell and another v Glasgow City Council
| Jurisdiction | UK Non-devolved |
| Judge | LORD HOPE OF CRAIGHEAD,LORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY,BARONESS HALE OF RICHMOND,LORD BROWN OF EATON-UNDER-HEYWOOD |
| Judgment Date | 18 February 2009 |
| Neutral Citation | [2009] UKHL 11 |
| Docket Number | No 2 |
| Court | House of Lords |
| Date | 18 February 2009 |
and another
[2009] UKHL 11
Appellate Committee
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
Original Appellants:
Andrew Smith QC
Roddy Dunlop
(Instructed by Lewis Silkin as London Agents for Council Solicitor, City of Edinburgh Council)
Original Respondents:
Colin McEachran QC
Alison Stirling
(Instructed by Drummond Miller LLP)
Interveners (Housing Associations)
Jonathan Brown
(Instructed by McClure Naismith LLP)
My Lords,
On 31 July 2001 the late James Dow Mitchell was attacked by his next door neighbour James Drummond. A stick or an iron bar was used in this attack, and Mr Mitchell was hit about the head and severely injured. On 10 August 2001 he died as a result of his injuries. The deceased, who was aged 72, and Drummond, who was in his mid 60s, were both tenants of the defenders, the local housing authority. Drummond was arrested and charged with the murder. On 12 July 2002 the Crown accepted his plea to culpable homicide. He was sentenced to eight years imprisonment. Later it was reduced to five years on appeal. The lenient way in which Drummond appears to have been treated must not be allowed to disguise the tragic circumstances of the deceased's death and the distress which it must have caused to the deceased's family.
The pursuers are the deceased's widow and his daughter. They claim damages from the defenders for the loss, injury and damage which they suffered as a result of the deceased's death. They base their case on two grounds. The first is negligence at common law. The second is that the defenders acted in a way that was incompatible with the deceased's right to life under article 2 of the European Convention on Human Rights and was accordingly unlawful within the meaning of section 6(1) of the Human Rights Act 1998. On 30 June 2005 the Lord Ordinary, Lord Bracadale, dismissed the action: 2005 SLT 1100. On 29 February 2008 an Extra Division (Lady Paton, Lord Reed and Lord Penrose) by a majority (Lord Reed dissenting) recalled the Lord Ordinary's interlocutor and allowed a proof before answer on the pursuers' case at common law. By a different majority (Lady Paton dissenting) it excluded from probation their averments that the defenders acted in a way that was incompatible with the deceased's Convention right: 2008 SC 351. The defenders appeal to your Lordships against the allowance of a proof before answer. The pursuers cross-appeal against the exclusion from probation of their case under the Human Rights Act 1998.
The facts
Lady Paton set out in paras 4 to 17 of her opinion a succinct summary of the pursuers' averments about the events that led up to the deceased's death. They go back a long way. Drummond and the deceased's family had been neighbours since the 1980s. Drummond was given the tenancy of 225 Bellahouston Drive in May 1985. He moved there from Middleton Street, where he had behaved in an anti-social manner and attacked his neighbours with a tyre lever. The deceased became the tenant of the property next door at 221 Bellahouston Drive in March 1986. The defenders provided them with this accommodation under the Housing (Scotland) Act 1966, which was later replaced by the Housing (Scotland) Act 1987. In December 1994 there was an incident in the early hours of the morning. Drummond had been playing loud music which woke up the deceased. He banged on the wall to get it turned down. Drummond retaliated by banging on his wall and shouting abuse. A few minutes later he arrived at the deceased's door armed with an iron bar. He used it to batter the deceased's door and smash his windows. The police were called and Drummond was arrested. He shouted that he would kill the deceased when he got out of jail. A few days later, having been released on bail, he followed the deceased home shouting abuse. He told him that he would be dead meat after the court case. There were further such incidents at the beginning of January 1995. In March 1995 the defenders warned Drummond that if he persisted in this conduct they would take action to recover possession of his house.
Despite this warning Drummond continued to threaten to kill the deceased at least once a month. He was removed by the police in handcuffs on many occasions and intimidated elderly residents. The deceased and his family consulted city councillors and a member of the Scottish Parliament, who wrote to the defenders about the abuse which the deceased was suffering. Victim Support also wrote to the defenders in August 1999 about other residents' fears of retaliation by Drummond if they gave evidence against him. They were however provided with a signed statement by a local resident confirming that she had heard Drummond threaten to kill the deceased on many occasions. In January 2001 an incident was recorded on video tape showing Drummond's behaviour towards the deceased which resulted in his being charged with a breach of the peace. The defenders warned him again that he might be evicted if his behaviour did not improve.
At the end of January 2001 the defenders served on Drummond a notice of proceedings for recovery of possession under section 47 of the 1987 Act. Para 8 of Schedule 3 to that Act provides that one of the grounds for the recovery of possession is that the tenant has been guilty of conduct in or in the vicinity of the house which is a nuisance or annoyance and in the opinion of the landlord it is appropriate in the circumstances to require him to move to other accommodation. The notice was valid for six months: see section 47(4). The defenders kept the deceased informed of the steps that they were taking against Drummond during this period. Their effect on his behaviour was to provoke more abuse. An incident on 12 June 2001 was video recorded and the deceased reported it to the defenders. There was a further incident on 10 July 2001 when the police were called and Drummond was again arrested and charged with a breach of the peace. The defenders received a police report of that incident.
On 26 July 2001 the defenders wrote to Drummond inviting him to a meeting to be held on 31 July 2001. He was told that the purpose of this meeting was to discuss the incident of 10 July 2001 and the notice of proceedings for recovery of possession that had been served on him in January as they were considering issuing a further notice. Drummond attended the meeting on 31 July 2001, which began at 2pm. The defenders told him that a fresh notice of proceedings to recover possession would be served on him. They said that they would continue to monitor complaints about his behaviour. They told him that continued anti-social behaviour could result in his eviction. Drummond lost his temper and became abusive. He then apologised to the defenders' staff for having lost his temper. After leaving the meeting Drummond returned to Bellahouston Drive. At about 3pm he assaulted the deceased and inflicted the injuries which caused his death.
The defenders did not warn the deceased that they had summoned Drummond to the meeting that was held on 31 July 2001. Nor did they make any attempt to warn either him or the police about his behaviour at the meeting or of any possible risk of retaliation against the deceased as a result of it. The pursuers' case is that if he had been given these warnings the deceased would not have died. He would have been alerted to the fact that Drummond was likely to be angry and violent. He would have been on the look out and taken steps to avoid him. The pursuers also allege that the deceased's death was caused by the defenders' failure to act on the repeated complaints by instituting proceedings against Drummond to recover possession by October 1999. But they gave notice in their written case that they did not intend to maintain that argument, which the Lord Ordinary had rejected. It has been held in a series of cases that a local authority is not normally liable for errors of judgment in the exercise of its discretionary powers under a statute: see Hussain v Lancaster City Council [2000] QB 1; X (Minors) v Bedfordshire County Council [1995] 2 AC 633; D v East Berkshire Community Health NHS Trust [2005] UKHL 23; [2005] 2AC 373, para 82 per Lord Nicholls of Birkenhead. So it is the allegations of a failure to give warnings that, for the purposes of this appeal, form the basis of the pursuers' case against the defenders at common law and under the statute.
The averments of fault
The following are the duties that the pursuers allege against the defenders at common law: (a) following the report of the incident on 10 July 2001, to keep the deceased and the police informed of the steps which they proposed to take against Drummond; (b) to advise the deceased that he might be at real and immediate risk of injury; (c) to consider the deceased's safety when arranging the meeting of 31 July 2001; (d) to advise the deceased that a meeting had been arranged for 31 July 2001 at which further steps were to be taken regarding recovery of possession of Drummond's property; (e) to alert the police that a meeting had been arranged for that day; and (f) to advise the deceased of what had happened at the meeting and of Drummond's state of mind during it.
The pursuers also allege a contravention by the defenders of article 2 of the Convention in that, by failing to advise the deceased that the meeting of 31 July 2001 was to take place and of the events that transpired at that meeting, they acted in a way that was incompatible with his right to life. This is the basis of their claim that the defenders...
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