M W V. Glasgow City Council
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Eassie,Lord Bannatyne |
| Neutral Citation | [2010] CSIH 70 |
| Published date | 23 July 2010 |
| Date | 23 July 2010 |
| Court | Court of Session |
| Docket Number | A228/07 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lord Bannatyne Lord Wheatley | [2010] CSIH 70 Case Ref: A228/07 OPINION OF THE COURT delivered by LORD EASSIE in the cause MW Pursuer and Respondent; against GLASGOW CITY COUNCIL Defenders and Reclaimers: _______ |
Alt: G Clark, Q.C.; G Lindsay, Solicitor
23 July 2010
[1] The pursuer and respondent in this action seeks reparation from the defenders and reclaimers in respect of certain wrongs which she avers were done to her while she was resident in Kerelaw Residential School for a period which ended in October 1996. According to the pursuer, who was born in March 1981, she was sent to Kerelaw in 1991 when she was ten years of age. For their part the defenders aver that she was resident in the school from March 1994. Whichever be the correct date of admission to the school, it is accepted that it was administered and operated by the defenders or their statutory predecessors, Strathclyde Regional Council.
[2] The action was commenced on 10 October 2006 when the summons was served upon the defenders. In light of the fact that the pursuer left the school some ten years earlier, and that she attained majority in March 1997, the defenders plead that the action is time-barred.
[3] In view of the action raised by this pursuer, M.W., having certain similarities with an action raised by another resident of the school, C.G., against the defenders, both actions were debated on the Procedure Roll at the same diet. As in the case of the action at the instance of C.G., the Lord Ordinary allowed a proof before answer on all matters. These included the pursuer's plea that in terms of section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973, as amended - "the Act" - the claim is not time-barred and, in the event that the application were time-barred, an application to the court in terms of section 19A of the Act for the exercise of the court's equitable discretion to override the time-bar should be granted. The Lord Ordinary delivered a short opinion in the present case - [2009] CSOH 37 - dealing briefly with one matter not argued in the C.G. action and for the rest he simply referred to the fuller opinion which he had delivered in the C.G. action - [2009] CSOH 34. The separate issue was not revisited in this reclaiming motion by either party. The reclaiming motion was heard at the same diet on the Summar Roll as the reclaiming motion in the C.G. case and, apart from a recognition by counsel that the abuse of which M.W. complains is less serious than that with which the C.G. action is concerned, the two cases were treated by parties as raising the same issues, particularly the proper approach to the provisions of section 17(2)(b)(i) of the Act.
[4] Contemporaneously with the advising of this reclaiming motion, we also advise the reclaiming motion in the action at the instance of C.G. and in common with the approach followed by the Lord Ordinary we refer to and adopt the terms of that opinion in so far as the opinion deals with matters common to both cases. In that opinion we indicate in particular that the view of the Lord Ordinary that the terms of section 17(2)(b)(i) allowed for a subjective assessment of the seriousness of the injury, was a construction of that provision which was not consistent with what had been decided by the First Division in its opinion in AS v Poor Sisters of Nazareth [2007] CSIH 39; 2007 SC 688.
[5] However, as already indicated, counsel for the defenders recognised that the nature and consequences of the wrongs averred by the pursuer in this action are less serious than those in the case of C.G. We therefore consider that the question whether the pursuer's averments may meet the criterion in section...
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C G V. Glasgow City Council
...in relation to sec 19A could be made. Following a debate on the procedure roll, which was heard together with MW v Glasgow City Council ([2010] CSIH 70; 2011 SC 15), the Lord Ordinary allowed a proof before answer at large. The defenders reclaimed. They argued that a preliminary proof befor......