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JAMES MACGREGOR FAIRLIE v. PERTH AND KINROSS HEALTHCARE NHS TRUST AND ANOTHER


OUTER HOUSE, COURT OF SESSION

OPINION OF T G COUTTS, Q.C.,

SITTING AS A TEMPORARY JUDGE

in the cause

JAMES McGREGOR FAIRLIE

Pursuer;

against

PERTH & KINROSS HEALTHCARE NHS TRUST and ANOTHER

Defenders:

________________

Pursuer: Peoples, Q.C.; Wright Johnston & Mackenzie

First Defender: Caldwell, Q.C., Lindsay; R F Macdonald

Second Defender: Shand; Simpson & Marwick, W.S.

20 April 2001

Introduction

[1]The pursuer seeks reparation for alleged injury to his reputation and for distress caused to him by the conduct of servants of both defenders resulting from their investigations into the health and well-being of his daughter while she was a patient at Murray Royal Infirmary, Perth. As a result of statements, allegedly recovered from the memory of his daughter by recovered memory treatment (RMT) allegations were made about the pursuer's conduct which were persisted in, accepted and pursued by the employees of the defenders. The pursuer's case is that these allegations were persisted in and pursued regardless of any effect they might have if untrue upon the pursuer, without any check as to their veracity, and without proper assessment.

History of action

[2]The events which occurred in 1995 which were a consequence of allegations made via RMT were always the subject of the present action which was raised on 16 June 1998. The cause was sisted for investigation in July 1998 without opposition. The sist was recalled on 8 October 1999. The record closed on 22 March 2000. There had been a change of counsel and the present senior counsel for the pursuer was instructed on 22 February 2000. The cause was sent to procedure roll and the defenders were ordained to lodge a note of argument. Both have failed to do so either at the time ordained or in preparation for the procedure roll diet which called before me. A minute of amendment for the pursuer was received on 16 November 2000, answers were lodged for the second defenders on 4 December 2000 and for the first defenders on 5 January 2001. Adjustment of the minute and answers took place and, the case having been previously allocated a diet for procedure roll, called before me on the last day of term. All counsel wished the Court to consider whether amendment should be allowed. The defenders sought that the amendment be refined on the ground that it altered the basis of the pursuer's case and also that it was irrelevant and therefore not necessary. In view of the lack of any note of argument I was not prepared to consider in the time available matters relating to relevance but heard counsel on the matter of whether the amendment should be allowed having regard to the time at which it was proposed and the alleged introduction of what were said to be new cases which would otherwise be time barred. Counsel for the pursuer accepted that his action was one of reparation and that section 17 of the Prescription and Limitations (Scotland) Act 1973 would apply to any new action raised on the matters averred.

The law

[3]Counsel were not in dispute as to the applicable law and principles. By Rule of Court 24.1 it is provided that in any cause the Court may at any time before final judgment allow an amendment which may be necessary for determining the real question and controversy between the parties.

[4]Because that rule does not insist that, at the stage of amendment, the amendment has to be necessary, i.e. relevant, but is expressed permissively, I considered that it was appropriate to leave the question of whether as now pled the pursuer's case was relevant and whether or not the amendments or any part of them should be remitted to probation for a full debate on procedure roll.

[5]Parties were agreed that in the matter of amendment after the expiry of statutory time-limit provisions, the law was appropriately expressed by Lord Prosser in Jones v Lanarkshire Health Board 1999 S.L.T.19; that is that the existence of statutory provisions would plainly be a relevant consideration for the Court in considering whether to allow amendment. Reference was made to the well known cases of Pompa's Trustees v Edinburgh Magistrates, Greenhorn v J Smart & Co (Contractors) Ltd, McPhail v Lanarkshire County Council, Hynd v West Fife Co-operative Society Ltd, Dryburgh v National Coal Board and Grimason v National Coal Board as well as to the Inner House report in the said case of Jones. Reference was also made to Hamill v Newall Insulation 1987 S.L.T.478. From all these authorities it is apparent that the issue is essentially one of discretion not of competence. Accordingly the Court required to consider in the particular circumstances of any case, the amendment proposed, the time at which it was proposed, and any questions of prejudice.

Submissions for first defender

[6]For the first defenders it was submitted that the amendment introduced fundamental changes in the pursuer's action. Counsel subjected the amendment and the old record to detailed scrutiny. In particular, the Court's attention was directed towards the additional material indicating that RMT might in fact be the cause of erroneous allegations being made instead of a means whereby some pre-existing fact could be ascertained. There was also, she said, some novelty in the allegation that the doctor in charge, who had all along been blamed, deliberately misled members of the pursuer's family and so caused the injury to the pursuer.

Submissions by pursuer

[7]The pursuer submitted that the basis of the case was the same. The real question was still the conduct and the duty of the doctor in question towards the pursuer. Fuller particulars had now been given of the various aspects of the doctor's conduct which impacted upon the pursuer. The case had been expanded upon. There was admittedly new material but the basis had not essentially changed even although additional allegations were made.

Decision in relation to first defenders

[8]I take as a convenient test the dictum of Lord President Cooper in McPhail v Lanarkshire County Council 1951 S.C.301, where, in relation to proposed amendments, he expressed his view of the test in Pompa as one of ascertaining whether it was the foundation or the superstructure of the case which had altered. "The pursuer may well claim not to have offered a new front but only to have presented the old front from a new angle, not to have changed the foundation of his action but only to have made certain alterations in the superstructure. (p.309)". Consideration of the other cited cases and the circumstances therein point to basic change as being, for example, substituting a case based on vicarious liability for one of the master's personal duty, changing a case from the width of a batten to instability of a ladder or matters of that kind. It is also important to consider when the proposed amendment is proffered. In the present case a proof has not even been allowed and so some of the considerations which were before the Court in Dryburgh do not apply.

[9]In my view although the pursuer has, in terms of volume at least, considerably altered his pleadings, what he has done is merely to amplify and add cognate matters to them. I do not think there is a fundamental change in the basis of his case. The basis of his case was an attack upon the conduct of the doctor in charge of his daughter and some aspects of that have been expanded upon. The consultant blamed might readily be considered to have required at all times to have in mind, the matter of the consequences of RMT and whether it was appropriate at all. I am not prepared to hold that the minute of amendment, so far as directed against the first defenders, should not be allowed.

[10]Allowance of the amendment leaves it open to those defenders, if so advised, to challenge the relevance and specification of the pursuer's case as now amended and there is ample time to do so. I was not persuaded that there was prejudice to the defenders' employee by the amendment of such an extent as to lead to the rejection of the amendment for that reason.

Submissions for second defenders

[11]The pursuer had agreed that in relation to the second defenders the case had changed in material respects. The pursuer had argued however that the case proposed now was narrower and based on a particular aspect of the conduct of the employees of the second defenders. The basis of the pursuer's case it was said had altered in that the case was now one of damage to reputation as a result of false statements together with the disclosure of these, as opposed to a failure to make adequate investigations. Further, and in any event, the case was said to lack specification as now amended.

Decision on case against second defenders

[12]With some hesitation I have come to the view that the record may be allowed to be amended as against the second defenders also. Albeit that the change in the superstructure here may very well reach nearly to the waterline, the fundamental basis of the case, the conduct of the employees of the second defenders in relation to information they received and the use they made of it, the contact they had with the pursuer and his family and the basic complaint of lack of adequate foundation for the conduct which did occur remain the essence of the pursuer's complaint. I propose to allow the record to be amended in terms of the minute of amendment and answers and will put the case out By Order so that further procedure can be discussed. As with the first defender, this decision does not preclude an attack on the relevance and specification of the pursuer's amended case, preceded by a properly formulated and intimated note of argument.