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A roundup of recent court decisions raising issues relating to limitation defences in Scotland, the role of experts, the application of the Civil Liability (Contribution) Act 1978, and contracting out of fixed costs.
Limitation defences: a high bar for defenders
B & W v The Congregation of the Sisters of Nazareth [24.11.22]
A judgment of the Scottish Court of Session has considered changes to limitation introduced by the Limitation (Childhood Abuse) (Scotland) Act 2017 (the 2017 Act). In this case, the defender failed on appeal to sustain defences in terms of section 17D of the Prescription and Limitation (Scotland) Act 1973 (the 1973 Act).
By way of background, siblings B and W claimed that they had suffered abuse at a residential home operated by the defender between 8 July 1974 and 12 August 1974. Most abusers were not named or identifiable. A name given for one abuser was not the name of any Sister at the residential home at the time. Of twelve Sisters identified as at the residential home at the right time, eight were either deceased or not found, and two more were not connected to the pursuers’ group. Despite thorough researches, only limited contemporaneous documentation was available.
These defenders were the subject of a Scottish Child Abuse Inquiry (SCAI) case study report, which found that the kind of abuse described by the pursuers did take place. That report did not, and could not, find the defenders liable to any person. However, the case made out by the claimants in their court actions related to a general ethos and culture of that kind of abuse throughout the residential home, and the Court considered that the defenders could address this without necessarily hearing from named individuals said to be responsible for specific acts.
The Inner House found that a fair hearing was not shown to be impossible, nor had substantial prejudice been established to outweigh the pursuers’ interests in proceeding. As such, the limitation defences were not available to the defender and the dismissals were quashed.
The Courts have expressed that these type of cases are very fact specific, but this decision emphasises the significance of criticisms of culture, ethos and general practice in an establishment, as well as specific incidents. The decision also demonstrates that the tests under the 2017 Act provisions set a high bar for defenders.
Contact: Lesley Allan
Related item: Limitation in childhood abuse cases – a key appeal decision
Experts cannot and should not take the role of advocate
Duffy v McGee Insulation Services [07.11.22]
In this Irish judgment the Court of Appeal voiced strong criticism of the “hired gun” expert who takes on the role of advocate, and has signalled much tighter control and greater enforcement of the rules relating to expert evidence.
Judge Noonan found that the expert whose evidence was at issue had “impermissibly donned the mantle of a partisan advocate in his efforts to discredit the claim of the plaintiffs.” The Court identified a number of aspects of his evidence that gave rise to serious concern, including that the expert had purported to give an opinion on the legal principle of res ipsa loquitor and also purported to give a medical opinion on the plaintiff’s psychiatric and skin complaints, both areas being entirely beyond his competence. In so finding, the court upheld the trial judge’s decision to exclude the expert’s evidence in its entirety, stating that there was an “abject failure” to comply with the most basic obligation of an expert, namely, to be objective and impartial.
This is a further reminder of the Irish judiciary’s much greater enforcement and policing of the rules regarding the quality and reliability of expert evidence.
Parties instructing experts should ensure that the experts fully understand their role and that their overriding duty is to the court. Failure to do this may mean that the expert evidence will not be admitted and that there may be adverse cost orders, including potentially against the lawyers themselves in the form of wasted cost orders.
Contacts: David Strahan, Noel Devins, Hugh Kennedy
Related item: Not in this town: The days of the “hired gun” are over
Court of Appeal holds “no special rule” for armed forces when considering domiciled status in England & Wales
Robin Stait v Cosmos Insurance Limited Cyprus [01.11.22]
The appellant, Robin Stait, was an RAF officer stationed at a Sovereign Base Area (SBA). He had previously brought a claim against the respondent insurance company, Cosmos Insurance Limited Cyprus after a cycling accident on a road outside the SBA where he was stationed in Cyprus.
The High Court set aside his claim form on the basis that England & Wales lacked jurisdiction to deal with the claim. He appealed the decision under Regulation 1215/2012 (The Recast Regulation) on the basis that:
- Under article 11.1, an insurer domiciled in a member state may be sued either in the courts of the Member State in which he is domiciled or in another Member State, in the case of actions brought by the insured in the courts for the place in which the claimant is domiciled.
- Under article 13.2, article 11 shall apply to actions brought by the insured party directly against the insurer, where such direct actions are permitted.
The appellant argued that his claim fell under these grounds as he was domiciled in England & Wales. He noted that he had been a resident in England & Wales until at least 2016, that he had more than one residence and that he had a unique employment with the RAF and should not lose his jurisdictional rights associated with his residency in the UK when posted abroad.
Although the Court of Appeal recognised that the appellant had a “substantial connection with the United Kingdom”, he also had a “clear and settled pattern of life at and around the SBA”, which confirmed that he was a resident for jurisdiction purposes. As the appellant had failed to establish that he was resident in England & Wales at the time of proceedings, the English courts had no jurisdiction to hear the claim.
Contacts: Rachel Moore & Nikita Singh
The Civil Liability (Contribution) Act 1978: does it have extra-territorial effect?
The Soldiers, Sailors, Airmen and Families Association - Forces Help and another (Respondents) v Allgemeines Krankenhaus Viersen GmbH (Appellant) [02.11.22]
In this judgment the Supreme Court found that the Civil Liability (Contribution) Act 1978 does not apply automatically to all proceedings for contribution brought in England and Wales.
By way of background, Mr Roberts suffered brain damage at birth in 2000 at a German hospital, Allgemeines Krankenhaus Viersen GmbH (AKV). A claim was made against the Soldiers, Sailors, Airmen and Families Association Forces Help (SSAFA), who employed the midwife, and an additional claim was made against the Ministry of Defence (MoD), who would indemnify SSAFA in the event of a successful claim.
The SSFA and MoD denied liability and brought a contribution claim against the hospital, AKV, on the basis that, under the Civil Liability (Contribution) Act 1978 (the 1978 Act), they were liable to cover some of the damages of the defendants.
Whilst proceedings were brought in England, it was agreed that the applicable law was German law. Under German law, the contribution claim against AKV would be time-barred. The question for the High Court when considering the applicability of the contribution claim was whether or not the 1978 Act had an overriding effect over private international laws.
The Supreme Court held that it would be contradictory to apply English law if the contribution claim was most closely connected to the foreign law, as it was in the case in question. AKV’s appeal was therefore accepted. The defendants’ claims for contribution against AKV fell to be considered under German law and were therefore time-barred.
Contacts: Rachel Moore & Nikita Singh
Contracting out of fixed costs: a warning to defendants
Doyle v M&D Foundations & Building Services Limited [08.07.22]
This recent Court of Appeal judgment has significant ramifications on settlement of damages and the resultant costs a defendant may be asked to meet in a claim which commenced in the Ministry of Justice (MoJ) Portal but subsequently dropped out. The Court of Appeal held that it was possible for parties to contract out of the fixed costs provisions of Civil Procedure Rules Part 45.
In terms of background, the claim was within the scope of the Pre-Action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability) Claims (the Protocol), and was therefore commenced in the MoJ Portal. The defendant disputed liability, the matter fell out of the Portal and the Protocol ceased to apply. The claimant commenced proceedings, the matter was allocated to the fast track and listed for trial. The parties came to a compromise on damages within three days of trial, by way of Part 36 agreement.
The settlement was formalised by an order providing that the defendant was to pay the claimant’s costs “such costs to be subject of detailed assessment if not agreed”.
The claimant presented a bill of costs calculating profit costs due on an hourly rate basis. The defendant was not successful on its arguments that fixed costs should apply before both the District and Circuit Judges and those arguments have now been rejected by the Court of Appeal.
This is a frustrating and unfortunate judgment. The term ‘detailed assessment’ has been utilised for many years as a non-technical term meaning the route by which the court determines any dispute over costs. It now carries a narrower meaning and significant risks in fixed costs cases.
Contact: Lewis Thompson
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