Shetland Nhs Board V. Brian Kelly
| Jurisdiction | Scotland |
| Judge | J. Gordon Reid, Q.C. |
| Neutral Citation | [2011] CSOH 67 |
| Date | 15 April 2011 |
| Docket Number | A42/05 |
| Court | Court of Session |
| Published date | 15 April 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 67 | |
| A42/05 | OPINION OF J. GORDON REID Q.C. (Sitting as a Temporary Judge) in the cause SHETLAND HEALTH BOARD Pursuers; against BRIAN KELLY and ANOTHER Defenders: ________________ |
Pursuers: P. M. Stuart; R F Macdonald, Health Board
Defenders: Lindsay; Anderson Strathern
15 April 2011
Introduction
[1] This case called on the Motion Roll and the Procedure Roll on 25 March 2011. The Pursuers sought leave to allow a substantial Minute of Amendment to be received with the consequent discharge of the Procedure Roll. The first Defender (the only defender remaining in the process) resisted the motion and proposed that the Procedure Roll discussion should proceed without amendment. The essential grounds of opposition were that (1) the amendment came too late, (2) allowing it to be received would amount to a breach of the court's duty under Article 6 of ECHR to ensure that disputes of this nature are determined within a reasonable period of time, and (3) the pursuers were attempting to introduce two new cases after the expiry of the prescriptive period and have in effect rewritten their fraud case against the first defender.
Nature of the Action
[2] The Pursuers sue the Defender for repayment of sums paid to him between 1995 and 1999 in response to claim forms submitted for General Ophthalmic Services (GOS) under various statutory regulations on the basis that the claims were fraudulent and the sums paid in error. In addition, the Pursuers seek payment of what they describe as considerable costs during the necessary investigation of the defenders' wrongful claims. Details are offered to be produced (Article 4 page 12A). No details of those costs have ever been produced. The Minute of Amendment does not touch on this head of claim.
History of proceedings
[3] After various internal investigations and police involvement, criminal proceedings were brought against the Defender at Inverness Sheriff Court. I was informed that these proceedings were deserted pro loco et tempore in 2004 on the basis that the Defender made payment to the Pursuers of the sum of just under £12,500, which he did.
[4] The Court of Session action was raised against the Defender and his wife in January 2005. It was sisted in March 2005 pending resolution of the defenders' Legal Aid applications. The sist was recalled briefly in June 2005 to enable the pursuers to obtain diligence to recover documents. Proceedings were also begun in June 2005 before an NHS Tribunal to determine whether the Defender's name should be removed from the statutory list of persons entitled to provide GOS under the relevant NHS regulations. Evidence was led in the tribunal proceedings in March and June 2006. Proceedings before this tribunal are recorded by some means and transcribed. The estate of the Defender was sequestrated in January 2006. The Pursuers lodged a claim with the trustee. It is not clear whether any dividend was received.
[5] The sist in the Court of Session action was recalled in December 2006 when the then second defender was assoilzied. At that time the pursuers also enrolled to have the cause re-sisted for investigations but the Court's interlocutor did not give effect to that part of the motion for reasons which are unexplained. No further steps in the Court of Session process occurred until December 2009. In the meantime, the NHS Tribunal, in June 2007, found that the Defender had perpetrated a fraud on the Pursuers. The Defender appealed to the Inner House, not on the finding of fraud but on the Tribunal's decision on the question of disposal, which was essentially whether the Defender should be entitled to work within the framework of the NHS system. The Defender's appeal was allowed in January 2008 (Kelly v Shetland Health Board 2008 CSIH 7) and the proceedings remitted to the Tribunal. The Tribunal again dealt with the question of disposal, in March 2008. The Defender appealed once more, and his appeal was allowed by the Inner House in January 2009 (Kelly v Shetland Health Board 2009 CSIH 3). Thereafter, the Tribunal held further procedural hearings in April, June and August 2009 on the question of disposal. The Defender's name remains on the relevant NHS list. The Defender obtained his statutory discharge under section 55(1) of the Bankruptcy (Scotland) Act 1985 in January 2009.
[6] By late 2009, the Defender's solicitors had withdrawn from acting in the Court of Session proceedings and the usual procedure to determine whether the Defender intended to defend the action was set in train. In the meantime, the Tribunal heard evidence in February 2010 on the question of disposal. By May 2010, the Defender had appointed new solicitors in the Court of Session action and lodged Defences (some three and a half years late).
[7] The adjustment of the record continued until 22 September 2010 when the record closed. In the Defences, as adjusted, the Defender raised issues about prescription and the effect of his sequestration and subsequent discharge in January 2009. He also made various calls on the Pursuers for further specification. The cause was, in October 2010, appointed to the Procedure Roll. The Defender produced a Note of Argument in late November 2010. The March 2011 diet was fixed in December 2010. In the meantime, a further hearing had taken place in the NHS proceedings in September 2010 although I was informed that this was entirely taken up by negotiations between the parties.
[8] In January 2011, further evidence was heard in the Tribunal proceedings and written submissions were exchanged and lodged on behalf of the parties in early February 2011. A decision by the Tribunal on the question of disposal is currently awaited. Throughout the Tribunal proceedings, the Defender has been represented by a solicitor and/or counsel. The only evidence led by the Defender at the NHS tribunal hearings was his own.
[9] The Pursuers intimated their Minute of Amendment on Tuesday 22 March 2011; it appears to have been lodged in Court on 24 March. On that day, the pursuers enrolled a motion for receipt of the Minute of Amendment, Answers, and discharge of the diet of Procedure Roll.
The Minute of Amendment
[10] The proposed Minute of Amendment, which extends to about fifteen pages, (i) provides (at paragraphs 2 and 3) further specification of the conduct founded on in the Closed Record (article 3 pages 8B-C) and the legal basis of the claim; at paragraph 2(c) of the Minute of Amendment it is averred that the NHS proceedings concern the same facts upon which the pursuers rely in this action, (ii) introduces a new statutory claim for payment under the National Health Service (Optical Charges & Payments (Scotland) Regulations 1989 and 1998 but this claim too is linked to allegations of fraud (paragraph 3, new article 5) (iii) makes further averments in response to the Defender's plea of prescription (paragraph 4 [erroneously numbered 3], and (iv) adds two new pleas-in-law, one based on the statutory claim and the other seeking reparation for fraudulent misrepresentation; and varies the existing pleas-in-law (paragraph 5 [erroneously numbered 4]. There were other alterations proposed in paragraph 1 of the Minute which need not be specified here.
[11] In the course of his submissions, counsel for the Pursuers sought leave to amend the Minute of Amendment to cure defective numbering. I granted leave. More significantly, I also granted leave to delete a sentence on page 12 (new article 6) which...
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