|
OUTER HOUSE, COURT OF SESSION
[2008] CSOH 33
|
|
A300/01
|
OPINION OF LORD MENZIES
in the cause
KENNETH HARRISON
Pursuer;
against
(FIRST) WEST OF SCOTLAND
KART CLUB AND OTHERS and (SECOND) ROYAL AUTOMOBILE CLUB MOTOR SPORT
ASSOCIATION LIMITED
Defenders:
ญญญญญญญญญญญญญญญญญ________________
|
Parties Participating at the Hearing
Pursuer:
D Johnston, QC; Digby Brown SSC
First Defenders: Mackay, QC, RG
Milligan; Simpson & Marwick WS
Non-participating Party: McGrigor Donald for Second Defenders
21 February 2008
[1] The
pursuer sustained injuries as a result of an accident on about 26 February
1995 when he was test-driving a go-kart on a kart racing circuit belonging to
the West of Scotland
Kart Club. He was a member of that club
at the time of the accident. The second
defenders are the governing body of motorsport in Great
Britain and are averred to licence and
inspect racing tracks such as the first defenders' kart circuit. In this action the pursuer seeks reparation
for the loss, injury and damage which he avers that he has sustained through
fault and negligence on the part of the defenders, or one or other of
them.
[2] The
history of the action is a long one, but it has an important bearing on the
arguments which were addressed to me at procedure roll debate in January
2008. A claim for damages on behalf of
the pursuer was first intimated to the West of Scotland Kart Club on 27 January 1998. This action was raised shortly before the
expiry of the triennium, in February 1998.
At that time the first defenders were designed as West of Scotland Kart
Club, and five named persons at their home addresses, "the office bearers of
said club as representing the said club and as individuals". In article 1 of Condescendence it is
averred that "the first defenders are the West of Scotland Kart Club and the
office bearers thereof. They are
designed in the instance." The averments
of fault against the first defenders are contained in article 3 of
Condescendence of the Summons. There is
no attempt in these averments to distinguish between liability as office
bearers of the club and liability as individuals. The pursuer avers that his loss, injury and
damage "were caused by the fault and negligence of the defenders. It was the defenders' duty to take reasonable
care for the safety of persons, such as the pursuer, driving karts on said
circuit." This is followed by averments
of knowledge, duties and breach of duties.
[3] The
action came before the Lord Ordinary in July and August 2000, on the defenders'
pleas to relevancy and specification.
One of the arguments for the first defenders at debate was that a club
could not be liable in delict to a club member and in particular (a) since a
club was an unincorporated association, with no legal personality, a member
could not sue the club or any other members as representatives of the club,
since to do so would be to sue himself;
(b) members of a club incur no
greater liability simply by being an office bearer; (c)
the constitution of a club may allocate responsibility to certain
individuals who may then be liable to fellow members in contract or delict, and
(d) membership of a club does not provide immunity from being sued by other
members for liability which arises independently from membership, but the club
cannot be vicariously liable for such liability and the defender in such
circumstances would be sued as an individual.
The Lord Ordinary held inter alia
that the pursuer had pled a sufficiently relevant case against the five named
persons as individuals, that the duty of care arose not because the five were
office bearers but because of their knowledge and their de facto assumption of the responsibility for taking decisions
relating to the safety of the circuit, that there were no relevant averments of
fault directed against any club member other than the five, and accordingly the
pursuer's averments did not make out a relevant case of fault against the five as representing the club, and that a
decree against the first defender would mean that each club member, including
the pursuer, would become primarily liable on a joint and several basis,
resulting in the pursuer being primarily liable for the wrong for which he
sued, contrary to the fundamental principle that a pursuer could not recover
damages in respect of his own delict.
Other issues were raised at that time, but they are not directly
relevant to the arguments before me. The
Lord Ordinary's Interlocutor dated 14 November 2000 inter alia dismissed the action so far
as directed against (1) the West of Scotland Kart Club and (2) Alfred Murie,
Chris Baillie, Bill McDonald, Roseabel Carter and Ina Nelson as representing
the said club, and allowed the pursuer, the now first defenders the said Alfred
Murie, Chris Baillie, Bill McDonald, Roseabel Carter and Ina Nelson as
individuals and the second defenders a Proof before Answer of their respective
averments on record. Her Opinion was
reported at 2001 SC 367.
[4] The
pursuer reclaimed and the second defenders cross-appealed. The pursuer's argument was that he could
convene his own club as defenders, basing the argument on the Occupiers
Liability (Scotland)
Act 1960 and on the responsibility of the club for the negligence of the
committee acting as its agents. On 22 December 2000 the cause was
appointed to the Summar Roll for hearing.
In due course a date for the hearing was fixed for 5 February 2002 and the two ensuing
days. On 19 December 2001 the Inner House allowed a Minute of
Amendment for the pursuer to be received and allowed the defenders to lodge
answers thereto and granted warrant for service of a copy of the reclaiming
print and a copy of the Minute of Amendment on 16 named individuals. This was the first occasion on which the
pursuer sought to attach fault to these 16 named individuals for their own
allegedly negligent acts or omissions.
The Minute of Amendment sought inter
alia to convene these 16 persons as additional defenders, as the officer
bearers and committee members of the club as representing the club and as
individuals.
[5] It
was noted at a By Order hearing on 4 January
2002 that at that time service of the Minute of Amendment had not
been effected and it was doubtful whether the Summar Roll hearing fixed for 5 February 2002 could
proceed. On 18 January 2002 the Inner House discharged
the diet of Summar Roll set down for 5 February
2002 and the two ensuing days.
In December 2002 the Inner House directed that the debate on the Minute
of Amendment and Answers thereto should be reserved to the Summar Roll
diet. A fresh Summar Roll diet was
eventually set down for 17 February
2004 and the three following days.
On 11 February 2004
the First Division pronounced an interlocutor in the following terms:
"The Lords,
having heard Counsel for the parties, the case having called By Order, and on
the motion of the pursuer made at the Bar, there being no opposition thereto in
respect that parties are agreed (1) that the time bar plea contained in each of
the answers hereinafter referred to will in due course be remitted to the Outer
House, and (2) that counsel for the first named defenders will in the course of
the Summar Roll diet set down for 17 February 2004 and the three following
days make no submissions on behalf of the additional first defenders referred
to in the Minute of Amendment hereinafter referred to, allow the Closed Record
to be opened up and amended in terms of the Minute of Amendment and Answers,
Nos. 36, 41 and 42 of process, all as adjusted, and this having been done, of
new closes the Record...."
[6] The
reclaiming motion was heard by the First Division on 17 February 2004 and the three following
days, and by interlocutor dated 30 March
2004 the First Division refused the reclaiming motion of the
pursuer and the cross-appeal for the second named defenders and adhered to the
terms of the Lord Ordinary's interlocutor dated 14 November 2000.
[7] The
First Division held that the Lord Ordinary was correct to dismiss the action
against the club "including its office bearers and the other members of the
committee. It is not in dispute that enquiry
should be allowed to the pursuer's case directed against the five named persons
as individuals." (see paragraph [1] of the Lord President's Opinion). The Opinions of the First Division are
reported at 2004 SC 615.
[8] It
was noted on the interlocutor of 30 March
2004 "when expenses disposed of, case will require to be remitted
to Lord Ordinary." Expenses were
considered on 17 December 2004
and again on 28 June 2005,
and on the latter date the case was remitted to the Lord Ordinary to proceed as
accords. On 15 November 2006 on the motion of the first
defenders, of consent of the second defenders and the pursuer, the cause was
appointed to the Procedure Roll on the defenders' pleas-in-law. The matter came before me for debate on the
Procedure Roll in January 2008.
Submissions by junior counsel for the first defenders
[9] Counsel pointed out that
the issue of time bar was expressly reserved by the First Division in their
interlocutor of 11 February 2004,
even though the record was allowed to be amended in terms of the Minute of
Amendment and Answers. The pursuer's
pleadings as they presently stood were somewhat confusing, because no steps had
been taken to amend them to take account of the decisions by the Lord Ordinary
or the First Division. For example, the
instance still referred to the First Defenders as West of Scotland Kart Club,
together with 21 named persons designed as "the office bearers and
committee members of said club as representing the said club and as
individuals". The averments in
Article 6 of Condescendence (at page 22C of the Closed Record as
further amended) confused representatives' liability with individual
liability. What was meant by the term
"the first defenders" in the pursuer's pleadings? It cannot mean the club, as the action
directed against the club has been dismissed.
It cannot mean named individuals in a representative capacity, because
again the action against office bearers and other members of the committee as
representing the club has been dismissed.
It must mean the five named persons as individuals, in respect of whom a
Proof before Answer was allowed. Under
reference to Lord Marnoch's Opinion in the Inner House, counsel submitted
that there was a distinction between suing the club, suing members as
representing the club, and suing members for their individual delictual
liability. It was inconceivable that the
persons added by the Minute of Amendment were involved as individuals from the
outset - there was no hint in the original Closed Record of any involvement by
additional defenders.
[10] Counsel referred me to Johnston
on Prescription and Limitation at paragraphs 5.09 and 10.74, which stated
that in terms of section 17(2) of the Prescription and Limitation
(Scotland) Act 1973 (as amended) the action has to be commenced within a period
of three years after the date ascertained according to the provisions of the
section, and that an action commences on the date of citation of the
defender. In relation to these
additional individuals this must mean after December 2001. I was referred to Boslem v Paterson
1982 SLT 216 in which Lord Ross quoted Thomson & Middleton, Manual of Court of Session Procedure,
page 66, "Citation is the step which brings an action into existence by
giving the defender notice of it in the formal manner which the law has
appointed." The present action was raised
against an unincorporated association and five persons said to represent
it. There was no mention that any other
individuals were or might be at fault themselves. As a matter of fair notice, it could not be
said that the 16 newly named individuals had any notice of a claim that they
had been negligent until the Minute of Amendment was served on them. Counsel referred me to Kirkcaldy District Council v Household
Manufacturing Limited 1987 SLT 617 and observed that, although that case
was distinguishable from the present because it was concerned with prescription
rather than limitation, it did demonstrate how important it was that an action
should be raised against the proper defenders.
The classic illustration of this was Pompa's
Trustees v Edinburgh Magistrates 1942
SC 119. That case was concerned with the
substitution of the proper representative of the true defenders for the wrong
representative - the true defenders throughout being the ratepayers. The present case was in a quite different
position - the pursuer is trying to attribute personal liability to 16 new
individuals. I was referred to the
well-known passage in Lord Justice Clerk Cooper's Opinion at
page 125:
"Further, our
reports contain many decisions showing that the Court will not in general allow
a pursuer by amendment to substitute the right defender for the wrong defender,
or to cure a radical incompetence in his action, or to change the basis of his
case if he seeks to make such amendments only after the expiry of a time limit
which would have prevented him at that stage from raising proceedings afresh."
That is what the pursuer seeks to
do in the present action - unlike Pompa's
Trustees, he is not merely seeking to substitute the correct
representatives for the wrong ones, but to introduce liability against 16 new
individuals. This was not an example of
correcting the defenders' designation, as was the subject of consideration in
the reclaiming motion by the Gray Aitken
Partnership & Others (unreported) [2006] CSIH 4. If one looked at the original pleadings in
the present action there was no question that the pleader intended to blame the
16 individuals added by the Minute of Amendment for their individual
fault. This was therefore a clear
example of a pursuer seeking to introduce new defenders outwith the triennium,
contrary to the provisions of section 17(2) of the Prescription and
Limitation (Scotland)
Act 1973.
[11] Counsel turned to consider the court's power to override the
time limit provided for in section 17(2), contained in section 19A of
the 1973 Act (as amended). He referred
me to the Scottish Law Commission Report No 207, published in December
2007, and to the review of the current legal position at
paragraphs 3.9-3.14 of that report.
(See in particular B v Murray (No 2)
[2005] CSOH 70; 2005 SLT 982,
affirmed at [2007] CSIH 39; 2007
SLT 605). Counsel submitted that the key
point in the present case was that the pursuer has alternative remedies against
the existing defenders. There was no
explanation as to why he should have a stronger case against the new defenders
than against the original defenders - indeed, two of the five original defenders
are (and always have been) specifically targeted for individual blame. It is inconceivable that the pursuer could
succeed against the new defenders and not against the original five
defenders. The present case is therefore
stronger for the defenders, and less easy to justify the exercise of the
court's discretion in favour of the pursuer, than was Fleming v Keiller [2006]
CSOH 163. It should be remembered
that the action was only served against the club and the original five named
individuals days before the expiry of the triennium, and there had been lengthy
delays since then. Moreover, in terms of
paragraph 3.14 of the Scottish Law Commission Report, counsel reminded me
that the conduct of the parties was also a relevant consideration, and the
pursuer was required to provide a reasonable explanation for his failure to
raise his action within the limitation period.
In the present case, the pursuer was a member of the club, and had all
the knowledge necessary to direct averments of fault against whomsoever he
considered to be at fault; there was no
question of the defenders or their agents having contributed to any delay.
[12] Counsel turned to the list of factors given at paragraph 3.36
of the Scottish Law Commission Report, identified as potentially relevant to
the exercise of the court's discretion.
He dealt with these in turn:-
(a) No attempt was made to bring the new 16
individuals into this action until almost seven years after the accident, and
there was no explanation for this delay.
This factor weighed heavily against the pursuer.
(b) There was nothing in the pleadings to
explain the delay.
(c) With regard to the effect that the
passage of time has had on the defenders' ability to defend the action and
generally on the availability and quality of evidence, 13 years had already
passed since the accident. It was likely
that at least one further year would elapse until a proof. This will inevitably impact on the
recollections of what was said at meetings, particularly with regard to
individuals who appeared to have had no (or little) involvement.
(d) With regard to the conduct of the
pursuer and in particular how expeditious he was in seeking legal or other
expert advice and intimating a claim for damages to the defenders, there was
nothing by way of explanation or justification in the pleadings, either with
regard to the period between the accident in February 1995 and service of the
summons in February 1998, or with regard to the period between February 1998
and service of the Minute of Amendment in about January 2002.
(e) There was nothing to suggest that any
legal or other advice may have contributed to the delay.
(f) There was nothing in the pleadings to
suggest that any of the defenders (whether the original five or the new 16) had
contributed to the delay by their bad conduct.
(g) As already indicated, the pursuer
clearly has an alternative remedy against the existing five individual
defenders. Moreover, although he avers
that he has no remedy against his legal advisers, he does not aver why this is
so. Counsel accepted that it was open to
the pursuer to supplement his averments by ex
parte statements at the bar.
Finally, with regard to any other relevant matter, the strength (or
otherwise) of the pursuer's claim against the new 16 defenders was a relevant
factor. It was clear from the Opinion of
the First Division that the pursuer's case based on occupiers liability was
doomed to failure. The case against the
new defenders must be weaker (or in any event could not be stronger) than the
case against the existing five defenders, and this was particularly so for
those individuals who only became members of the committee in 1995. It was impossible to conceive of
circumstances whereby the new defenders might be liable but the original five
named individuals were not liable.
Submissions for the pursuer
[13] Senior counsel for the
pursuer moved me to repel the first plea-in-law for the first defenders and to
allow a Proof before Answer with all remaining pleas left outstanding. He submitted that it was not a correct
categorisation of the circumstances of this case that "new" defenders were
brought in in 2002. All the defenders
were members of the club, and were properly convened as defenders when the
summons was served on the club and five members as representing it in
1998. Although it was correct that none
of the 16 individuals were named as defenders when the action was raised,
neither was the pursuer himself - yet the effect of the Lord Ordinary's
interlocutor, affirmed by the First Division, was that the pursuer was found to
be suing himself. It must therefore
follow that when the summons was served on the office bearers, it was
effectively served on all members of the club.
[14] Counsel suggested that the defenders were trying to have their
cake and eat it. As the Lord Ordinary
observed at paragraph [31] of her Opinion,
".... by suing the
'West of Scotland Kart Club' the pursuer is in effect suing himself. While it is permitted to use a descriptive
club name in the instance of a writ (see Renton
FC v McDowall, Bridge v South Portland Street Synagogue, and the Sheriff Court Ordinary
Cause Rules), to do so is no more than a useful procedural device or shorthand
method of referring to everyone who was a member of the club at the relevant
time".
It follows that service of the
original summons on the club amounted to service on all the individual members,
including the "new" 16 defenders.
Service of the summons therefore interrupted the running of the
limitation period against these defenders.
In answer to a question from the court as to whether one could interrupt
the running of time by a misconceived writ, senior counsel replied that only if
the writ was radically incompetent or a nullity would it not interrupt the
limitation period. The pursuer could
therefore raise an action against any of the members of the club at any time
after dismissal of his action against the club itself, because limitation was
distinct from prescription, and one only needed to raise an action in order to
stop the running of the limitation period.
[15] Senior counsel referred me to Lord Marnoch's Opinion when this
case was before the First Division, particularly at paragraph 25. By suing the club, the pursuer sued all its
members as primary obligants. Each of the
members was sued only in one capacity, ie as individuals who are members of a
club - they were not being sued in a special capacity such as trustees,
executors or representatives. When asked
what the purpose of the Minute of Amendment was if all members of the club had
already been convened as defenders, senior counsel replied "for safety's
sake". When asked why the First Division
discharged the Summar Roll fixed for February 2002 (with the result that it did
not take place until February 2004), apparently because service of the Minute
of Amendment had not been effected on all the "new" defenders, senior counsel
suggested that the argument that he was now advancing may not have been clearly
focussed at that time, but in any event, if there was a procedural mishap at
that time, it cannot override the provisions of the substantive law. If the Opinions of the Lord Ordinary and the
First Division were correct, it follows that all the individuals now designed
in the instance were properly convened as defenders when the action was served
on the club in February 1998.
[16] Senior counsel referred me to Thomas Menzies (Builders) Ltd v Anderson
& Menzies 1998 SLT 794. This was
a case involving interruption of the prescriptive period rather than limitation
of actions. It was concerned with the
meaning of "proceedings" for the purpose of sections 4(2)(a), 6 and 9 of the
1973 Act. However, it was instructive in
showing that, in that context, the court would have regard to earlier
proceedings which were procedurally flawed but were not so radically or
fundamentally defective as to deprive them of the status of "proceedings". In the present case, senior counsel submitted
that there was no attempt to set up an entirely new legal basis for the claim
(which he accepted would be likely to fall foul of the rule in Pompa's Trustees); all that was sought to be done in the original
Minute of Amendment was to make more pointed averments about the involvement of
Bill Hay, Ann Davidson, Richard Murray and the other individuals who had not
been previously named.
[17] Turning to the equitable discretion of the court in terms of
section 19A of the Act, senior counsel pointed out that all the "new"
individuals mentioned in the Minute of Amendment were represented by the same
solicitors and same counsel as the individuals who had been named since the
summons was served. There was nothing to
suggest that the information gathered on behalf of the originally named five
individuals would not be available to the remaining 16 individuals. There was therefore no prejudice to them as a
result of their being named in the action, albeit some years after the expiry
of the triennium, because presumably all preparatory work had been done on
their behalf as well. The point was made
on behalf of the defenders that the pursuer had all necessary relevant
knowledge of the workings of the club as he was himself a member - but the same
point applies to all of these named individuals. Indeed, not only were they members of the
club, they were members of the Committee, so in a better position than the
pursuer himself to know the true position.
It was therefore artificial to suggest that there was any prejudice to
those individuals referred to in the Minute of Amendment.
[18] Turning to the various factors listed in paragraph 3.36 of the
Scottish Law Commission Report No 207, senior counsel responded as follows:-
With regard to
(a) and (b), while it was correct that almost seven years elapsed between the
accident and service of the Minute of Amendment, this was a complex case which
involved the solicitors in much work obtaining expert reports, and it was
difficult to establish who were the correct defenders. Two commissions were held, in January and
September 2001, to recover club documentation with a view to ascertaining who
should be identified in the Minute of Amendment.
(c) As already indicated, it cannot be argued
that the "new" defenders have suffered prejudice as a result of the passage of
time, because they share the same solicitors and counsel as the originally
named five individuals.
(d) No criticism can be made of the
pursuer's conduct.
(e) and (f) These are not relevant in this
case.
(g) With regard to other remedies which the
pursuer may have, this case was unusual.
The pursuer does not have an alternative remedy. The Minute of Amendment is merely an
elaboration of an existing remedy. When
asked if he wished to expand or add to the averment at the end of Article 6
of Condescendence that "the pursuer has no alternative remedy against his legal
advisers", Senior counsel declined to do so.
Submissions by senior counsel for the defenders
[19] Senior counsel for the
defenders adopted the submissions of junior counsel in their entirety, and
moved me to sustain the first defenders' first plea-in-law and to dismiss the
action insofar as directed against the individuals named in the Minute of
Amendment.
[20] Senior counsel submitted that the action as originally raised
was more restricted than it subsequently became. The first defenders were the club and the
office bearers thereof. There were no
averments of fault directed against any individual. The summons was served on the club and five
named persons as the office bearers of the club as representing the club and as
individuals, but there was no suggestion anywhere in the averments or the
pleas-in-law of individual liability of each member of the club nor any hint of
individual fault. What the pursuer's
submissions amounted to was precisely what was criticised by Lord Marnoch
when the case was before the First Division, namely a confusion between matters
of procedure and matters of substantive law.
None of the additional 16 defenders were named or suggested as being at
fault individually until the Minute of Amendment was served; this amounted to a radical or fundamental
defect (to use Lord Eassie's words in Thomas
Menzies (Builders) Ltd v Anderson
& Menzies). It was also quite
clearly different from the situation in Pompa's
Trustees where the court allowed amendment so that one representative of
the right defender should be replaced by a different representative of the
right defender; the 16 individuals
referred to in the Minute of Amendment were not being sued in a representative
capacity on behalf of a "right defender", but rather were being introduced into
the action on the basis of averments of their own individual fault, which had
never been made before. Senior counsel
submitted that it was an indicator in favour of the defenders' position that
the Inner House pronounced an interlocutor on 19 December 2001 granting
warrant for service of the reclaiming print together with a copy of the Minute
of Amendment on the 16 named individuals, and thereafter on 18 January 2002
discharged the diet of Summar Roll set down for February 2002 as service had not
been effected on all the named individuals.
If, as was submitted for the pursuer, these named individuals had
effectively been parties to the action all along by virtue of being members of
the club, there was no need for service on them, and the interlocutors of 19 December 2001 and 18 January 2002 (which resulted
in a two year delay in the proceedings) were otiose. Senior counsel also
pointed out that it had been conceded on behalf of the pursuer before the Lord
Ordinary that being a member or office bearer of a club does not per se result in a duty of care being
owed by the member or office bearer to other members. (See paragraph [26] of the Lord
Ordinary's Opinion). However, the
summons as served on the club and the five named members proceeded solely on
the basis of liability as members or office bearers of the club. There was no suggestion of fault on the part
of any individual, and that remained the case until well after the record
closed - see the pleadings in the Closed Record (No 13 of process) which
bears the court date stamp 15 February 1999.
It is a radical step to move from suing a club and five office bearers
on the basis of the club's liability, to suing a further 16 individuals on the
basis of their individual fault. Senior
counsel submitted that the pursuer's submissions flew in the face of all the
authorities.
[21] Turning to the equitable discretion under section 19A, senior
counsel suggested that some of the factors identified as relevant in paragraph
3.36 of the Scottish Law Commission Report had not been answered for the
pursuer. With regard to paragraph (b),
no explanation was given as to why the action had not been brought timeously
against the 16 named individuals. Why
had the pursuer not identified them earlier as committee members with
individual fault? He was a member of
the club and it is difficult to understand why he did not know who comprised
its committee. With regard to
paragraph (c), it was wrong to suggest that there was no prejudice to the
16 persons named in the Minute of Amendment;
prior to service of the reclaiming print and the Minute of Amendment on
them, it had been unnecessary for the solicitors acting on behalf of the first
defenders as originally constituted to investigate the actings of these 16
individuals. A period of nearly seven
years elapsed before investigations commenced.
[22] With regard to paragraph (g) of the Scottish Law Commission
Report, it was difficult, if not impossible, to see any advantage to the
pursuer in having these additional 16 individuals in the action. There was substantial disadvantage to the 16
individuals, because the pursuer was legally aided and the defenders will
require to go to the trouble, worry and expense of preparing for a proof and
appearing at the proof, with little prospect of recovering all, or even any, of
their expenses. The doubts expressed by
the First Division regarding the strength of the pursuer's case under the
Occupiers Liability (Scotland)
Act 1960 were also relevant in considering where the equities lie in terms of
section 19A. The convening of 16
additional individuals as additional defenders does not advance the pursuer's
prospects of obtaining decree under the 1960 Act at all. There would be inevitable prejudice to the 16
"new" defenders if this action is not dismissed against them. By contrast, it is difficult to see any
prejudice to the pursuer if he is confined to suing the first defenders as
originally constituted.
Reply by senior counsel for the pursuer
[23] Senior counsel submitted that
the summons was served in the proper form, ie on the club and specified office
bearers. That was the proper way in
which to convene a club as a defender.
The ratio of the First Division's decision was that the pursuer was
suing himself (although he was not named as a defender). It must follow that he was suing every member
of the club, and therefore these 16 members were properly convened as defenders
from the outset. He renewed his motion
that the first defenders' first plea-in-law should be repelled and that a Proof
before Answer should be allowed with all remaining pleas outstanding.
Discussion
[24] I consider that this action
insofar as directed at the 16 "new" defenders is timebarred by reason of
section 17(2) of the Prescription and Limitation (Scotland) Act 1973. There are several factors which cause me to
reach this view.
[25] The action as originally framed was directed against the club,
and its members qua members. There was no suggestion at that time that the
pursuer was attributing individual fault to any of the individuals who formed
the club. There were five office bearers
who were sued, and it is stated in the instance of the summons that they were
sued "as representing the said club and as individuals", but there was nothing
to suggest that they were individually at fault, and certainly nothing to
suggest that any other members of the club who were unnamed in the summons were
individually at fault.
[26] By the time that the matter came before the Lord Ordinary for
debate in July and August 2000, the pursuer was asserting fault of the club and
fault of the five named individuals, but was still not asserting that anyone
else had caused this accident by their individual fault. The Lord Ordinary dismissed the action
against the club, and against the five members in their representative
capacity, but remitted the pursuer's case against the five named persons as
individuals to a Proof before Answer.
The First Division upheld that decision.
From 14 November 2000,
there was no action pending against the club nor against anyone representing
the club. The pursuer's action was
directed against the five named individuals as individuals (and against the
second named defenders). It is correct
that one of the grounds of the Lord Ordinary's decision, and of the decision of
the First Division, was that the pursuer could not sue himself, and that he
could not therefore sue the club.
However, it should be borne in mind that it was accepted on behalf of
the pursuer that being a member of a club (or an office bearer of a club) does
not per se result in a duty of care
being owed by the member (or office bearer) to other members.
[27] It follows that although the 16 "new" defenders may have had an
interest in the action as earlier framed, there was nothing in that action
which disclosed that they might have any liability in damages towards the
pursuer because of this accident.
Insofar as they might be described as defenders to the action, this was
only because they were members of the club - and it was conceded that
membership of a club does not per se result
in a duty of care being owed by one member to other members. It should also be borne in mind that until
the Closed Record was allowed to be opened up and amended in terms of the
Minute of Amendment, by interlocutor dated 11 February 2004, the pursuer could not have obtained
decree against the 16 "new" defenders.
He could only have obtained decree against the defenders originally
named - see Lord Marnoch's Opinion at paragraph [23] where he observed with
regard to the procedure that a club can be convened as defenders through the
addition to its name of certain named individuals in a representative capacity:
"The effect of
such procedure is nevertheless to convene the club or association as a whole,
albeit any decree obtained can only be enforced directly against the named
representatives".
[28] The Minute of Amendment which was allowed to be received on 19 December 2001 therefore
resulted in a significant and radical change of position for the 16 "new"
defenders. Not only was it being alleged
in the Minute of Amendment that they were individually to blame for the
accident that occurred in 1995, if the pursuer was successful in his action
against the first defenders any decree would be enforceable against them
individually. Their interest in the
action suddenly became fundamental. No
doubt it was for this reason that the First Division ordered service of the
Minute of Amendment and the reclaiming print on each of them, and when it was
apparent that such service might not have been effected on them before the diet
of Summar Roll fixed for February 2002, that diet was discharged and a delay of
some two years in the procedure resulted.
[29] This is a far cry from the situation in Pompa's Trustees, in which the pursuer had already identified
correctly the party potentially liable to pay compensation (namely the
community concerned, or the ratepayers) but had wrongly identified the
representatives of that party, and sought merely to substitute one representative
of the right defender for a different representative of the right
defender. The change sought to be
procured by this Minute of Amendment is, to use Lord Eassie's words (albeit in
the different context of prescription) in Thomas
Menzies Builders Ltd v Anderson &
Menzies, both radical and fundamental.
Prior to the interlocutor of 19 December
2001 the pursuer had no claim against the club, this claim having
been dismissed in November 2000. That
dismissal was subsequently upheld on appeal.
As at December 2001 the pursuer had a case of individual fault against
five named individuals. By virtue of the
Minute of Amendment he sought to make a case of individual fault against not
only those five individuals but 16 other individuals. Those other individuals had never previously
been named in the action, and such involvement as they had in the action was on
a basis which had been conceded to be one which did not per se result in a duty of care to other members. I do not consider that the raising of the summons
against the club and five office bearers as representing it and as individuals
is sufficient to enable the pursuer to bring an action against 16 other
named individuals after the expiry of the triennium. I am therefore of the view that the action as
directed against the 16 individuals mentioned in the Minute of Amendment
No 36 of process is time barred by virtue of section 17 of the 1973
Act.
[30] The question then arises as to whether the action should
nonetheless be allowed to proceed against these named individuals, in the
exercise of the equitable discretion conferred by section 19A of the 1973
Act. In this regard, while it has no
force in the law, both parties appeared to accept that the list of factors
contained in paragraph 3.36 of the Scottish Law Commission Report No 207
was a helpful list of factors which might be taken into account by a
court. With regard to paragraphs (a) and
(b), there was an elapse of almost seven years between the accident in February
1995 and the attempts at service of the Minute of Amendment on the named
individuals in January 2002. There was
nothing in the pleadings to explain this delay, but averments can for this
purpose be supplemented by ex parte
statements at the bar. Senior counsel
for the pursuer told me that this was a complex case and his instructing agents
had experienced difficulties in establishing who were the correct
defenders; indeed, two commissions were
held in January and September 2001 to recover documentation of the club to
identify who should be included in a Minute of Amendment. However, it is not clear to me why these
steps were not taken until 2001, the accident having happened in February
1995. No attempt was made to explain
this delay, nor to explain why it was so difficult to establish who were the
correct defenders.
[31] With regard to the effect that the passage of time is likely to
have had on the ability of the 16 "new" defenders to defend the action, it is
relevant that they are represented by the same counsel and agents as have represented
(and continue to represent) the five persons originally named in the
summons. To that extent, therefore, it
may be that certain investigations relevant to all defenders have been carried
out, or were carried out before January 2002.
However, the involvement of each of the "new" defenders is not
necessarily the same as that of the original five. Moreover, there is in my view some force in
the argument presented by junior counsel for the defenders that the accident
happened some 13 years ago and it is likely to be at least another year before
any proof takes place. Such a passage of
time will inevitably have an adverse impact on the recollections of witnesses,
for example, about what was said at meetings, particularly in the case of people
who had little or no involvement in the meetings and had no reason to consult
their memories nor to consider the matter until about seven years after the
accident.
[32] There is no attempt in the pleadings to explain how expeditious
the pursuer was in seeking legal and other expert advice and intimating a claim
of damages. I was told that the claim
was first intimated to the club on 27 January
1998, some 35 months after the accident, and the summons was served
on the original defenders only days before the expiry of the triennium. Similarly, there is no attempt to explain why
the pursuer has no alternative remedy against his legal advisers. There is a bald averment to this effect, but
senior counsel declined to expand on this at all.
[33] There is also considerable force in the argument advanced for
the defenders that the pursuer already has a remedy against the five originally
named defenders and it is difficult to see what additional remedy he might have
against the 16 additional individuals.
As counsel for the defenders suggested, it is difficult to conceive of
circumstances whereby the pursuer might succeed against the 16 "new" defenders
but fail against the five originally named individuals. It is therefore difficult to imagine what
prejudice would accrue to the pursuer by the court exercising its discretion
under section 19A in favour of the persons named in the Minute of
Amendment, and against the pursuer.
[34] Weighing all these factors together, and considering the whole
circumstances of this case, I am not persuaded that it would be equitable to
allow the pursuer to maintain this action against the 16 individuals named in
the Minute of Amendment (No 36 of process). I shall accordingly sustain the first plea-in-law
for the first defenders and dismiss the action against the individuals named in
the Minute of Amendment for the pursuer (No 36 of process). Quoad
ultra I shall allow a Proof before Answer with all pleas standing.
