Reclaiming Motion By Caroline Cowan Against Lanarkshire Housing Association Limited
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Menzies,Lord President |
| Neutral Citation | [2020] CSIH 26 |
| Date | 21 May 2020 |
| Docket Number | A68/13 |
| Court | Court of Session |
| Published date | 21 May 2020 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2020] CSIH 26
A68/13
Lord President
Lord Menzies
Lord Brodie
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Reclaiming Motion by
CAROLINE COWAN
Pursuer and Reclaimer
against
LANARKSHIRE HOUSING ASSOCIATION LTD
Defenders and Respondents
______________
Pursuer and Reclaimer: Sutherland; Allan McDougall
Defenders: Johnston QC, O’Rourke QC; Brodies LLP
21 May 2020
Introduction
[1] In this reclaiming motion, the pursuer seeks a review of the interlocutor of the Lord
Ordinary, dated 15 May 2019, which refused the pursuer’s motion to amend her pleadings
in her action for damages against the defenders. The defenders are her landlords under a
secure tenancy. The amendment relates to the pursuer’s averments of a breach of duty
2
under schedule 4 to the Housing (Scotland) Act 2001. The duty is said to arise from the
pursuer’s home having been built on contaminated land. The issues are, first, whether the
amendment amounts to a fundamental change in the case such as would deprive the
defenders of the protection of the time bar provision in section 17(2) of the Prescription and
Limitation (Scotland) Act 1973. Secondly, a question arises as to whether the Lord Ordinary
erred in requiring the pursuer to proceed by way of amendment when the record had not
yet closed. Thirdly, a challenge is made to the Lord Ordinary’s exercise of discretion.
The Summons and the Statutory Duties
[2] The action was raised in 26 September 2012 under RCS Chapter 43; that is the
procedure dedicated to personal injuries cases. It is important to observe in limine that this
procedure dispenses with adjustment and the lodging of open and closed records
(RCS 43.1.(3)). It requires the pursuer to lodge a “brief statement” which contains only those
facts which are necessary to establish the claim (RCS 43.2.(1)). The relevant form (43.2-A)
repeats this requirement and adds that the pursuer is to “State whether claim based on fault at
common law or breach of statutory duty. If breach of statutory duty, state provision of enactment”.
One purpose of Chapter 43 procedure, as set out in the report (1998) and supplementary
report (2002) of the working group chaired by Lord Coulsfield, was to avoid the perceived
necessity under ordinary procedure to elaborate upon the nature of the common law and
statutory duties founded upon.
[3] The pursuer lives at Tiber Avenue, which is within the Watling Street development
site in Motherwell. Her averments of fact were as follows:
“4b. The former uses of the site resulted in various types of contaminated waste
being left on and under the ground at the site. This contaminated waste included
solvents. The solvents were chemicals in the form of volatile organic compounds
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