Hamilton v RBS too complex to be small claim

Sheriff Simon Pender of Oban ruled on 26 February 2009 that Ian Hamilton's action against the Royal Bank of Scotland is too complex for small claims procedure in the sheriff court, and as a result Mr Hamilton has decided to abandon his action.

The news comes on the same day RBS announced a British record corporate loss of £24 billion and its withdrawal from its sponsorship of the Williams Formula 1 motorsport team.  With luck we should not have to endure too much longer the sight of the RBS logo splashed across the centre line at Six Nations rugby internationals.

The outcome of Mr Hamilton's case shows that the very large number of relatively small-scale savers, investors and pensioners whose fortunes have been deeply damaged as a result of the banks' activities are very unlikely to be able to seek any redress that may be due to them through the courts under present rules.  In deciding that the case should be remitted to proceed under Ordinary Cause procedure, Sheriff Pender noted that legal aid would then be available as it is not in small claims (but of course, as the sheriff also accepts, he cannot tell whether or not Mr Hamilton is eligible for legal aid). 

But it's an ill wind that blows nobody any good.  There is clearly a case for reconsidering the availability of class actions in our law.  Justice to be done must be seen to be done; and it is simply not justice if the courts are for all practical purposes inaccessible to those who consider that they may have been wronged by the actions of persons who happen to have much deeper pockets with which to fend off claims (in this case too pockets which have been patched up with huge amounts of taxpayers' money). 

Note further in this context the banks' efforts – all too often successful – to have Scottish claims against them in respect of possibly unfair bank charges sisted to await the outcome of decisions in other jurisdictions, commented on here in Scots Law News.  See also the comments of Mike Dailly, Govan Law Centre, reported in The Firm before the decision in the Hamilton case.

Returning to Mr Hamilton's action, it appears from Sheriff Pender's judgment that the claim of fraud had been dropped and the action had become one only in respect of alleged negligence.

For previous Scots Law News entries on Mr Hamilton's action, see here, here and here.  Mr Hamilton's own blog comments here.

A Scottish contract code?

The Scottish Law Commission is consulting stakeholders on whether in its forthcoming Eighth Programme of Law Reform it should consider the possibility of a draft contract code based on the Draft Common Frame of Reference (DCFR).

The suggested context for this is Scottish Government support for a good business and consumer environment, with clear laws stated in modern terms.  To some extent therefore it picks up on themes suggested in November 2008 by the Business Experts and Law Forum, reported here in Scots Law News.

At the moment the Commission's suggestion is being made only in a circular letter around stakeholders.  Public consultation on the Eighth Programme will follow in the spring.  For more on the DCFR consult our colleagues' efforts at the European Private Law News blog.

European Private Law News

Scots Law News would like to draw its readers' attention to its blogosphere stablemate European Private Law News, which began operations on 19 February 2009.

The new blog is contributed by Eric Clive, Laura Macgregor, Ashley Theunissen and Hector MacQueen of the Edinburgh Law School.  It will keep readers up-to-date on European Private Law developments, especially the Draft Common Frame of Reference, and offer comment and opinion on these matters especially as they affect Scots law or, perhaps, as Scots law affects European Private Law.


Are landlords liable for killings committed by their tenants?

The background to Mitchell v Glasgow City Council [2009] UKHL 11 is particularly tragic.  The late James Dow Mitchell was attacked with a stick or iron bar on 31st July 2001 and died as a result of his injuries on 10th August.  His attacker was his neighbour and fellow Glasgow City Council tenant, James Drummond.  Drummond was convicted of culpable homicide. 

Mr Drummond had a lengthy history of anti-social and violent and threatening behaviour – much directed against Mr Mitchell.  Lord Hope narrates,

"Drummond was given the tenancy of 225 Bellahouston Drive in May 1985. He moved there from Middleton Street, where he had behaved in an anti-social manner and attacked his neighbours with a tyre lever. The deceased became the tenant of the property next door at 221 Bellahouston Drive in March 1986. … In December 1994 there was an incident in the early hours of the morning. Drummond had been playing loud music which woke up the deceased. He banged on the wall to get it turned down. Drummond retaliated by banging on his wall and shouting abuse. A few minutes later he arrived at the deceased’s door armed with an iron bar. He used it to batter the deceased’s door and smash his windows. The police were called and Drummond was arrested. He shouted that he would kill the deceased when he got out of jail. A few days later, having been released on bail, he followed the deceased home shouting abuse. He told him that he would be dead meat after the court case. … In March 1995 the defenders warned Drummond that if he persisted in this conduct they would take action to recover possession of his house.

"Despite this warning Drummond continued to threaten to kill the deceased at least once a month. He was removed by the police in handcuffs on many occasions and intimidated elderly residents. The deceased and his family consulted city councillors and a member of the Scottish Parliament, who wrote to the defenders about the abuse which the deceased was suffering. Victim Support also wrote to the defenders in August 1999 about other residents’ fears of retaliation by Drummond if they gave evidence against him. They were however provided with a signed statement by a local resident confirming that she had heard Drummond threaten to kill the deceased on many occasions. In January 2001 an incident was recorded on video tape showing Drummond’s behaviour towards the deceased which resulted in his being charged with a breach of the peace. The defenders warned him again that he might be evicted if his behaviour did not improve." (paras [3] and [4])

The behaviour continued and eventually Drummond was served with a notice of proceedings for recovery of possession.  This action merely led to more abuse by Drummond and he was arrested and charged with breach of the peace.  Mr Drummond was then called to a meeting with the Council.

"Drummond attended the meeting on 31 July 2001, which began at 2pm. The defenders told him that a fresh notice of proceedings to recover possession would be served on him. They said that they would continue to monitor complaints about his behaviour. They told him that continued anti-social behaviour could result in his eviction. Drummond lost his temper and became abusive. He then apologised to the defenders’ staff for having lost his temper. After leaving the meeting Drummond returned to Bellahouston Drive. At about 3pm he assaulted the deceased and inflicted the injuries which caused his death." (para [6])

Although the Mitchells had been kept advised of the council actions over the years the council did not tell Mr Mitchell or the police about the meeting in July. Mr Mitchell's widow and daughter sued the council for damages based on claims: in negligence at common law; and that the council had acted in a manner incompatible with Article 2 of the European Convention on Human Rights.  They argued that if Mr Mitchell "had been given these warnings the deceased would not have died. He would have been alerted to the fact that Drummond was likely to be angry and violent. He would have been on the look out and taken steps to avoid him." (para [7])

At first instance [2005] CSOH 84 the Lord Ordinary (Bracadale) dismissed the case.  On appeal an Extra Division [2008] CSIH 19 held by majority that there could be a proof before answer on the common law case but rejected (by majority) a proof before answer on the ECHR case.  The Council appealed to the House of Lords, the Mitchells cross-appealing on the ECHR issue.

The case has been unanimously dismissed by the Lords – the bench comprising Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood.  Each judge delivered a substantive speech and clarification is given on the approach to determing when there is liability in negligence in difficult cases in Scots law.

The Mitchells argued that there was a duty to warn the Mitchells, and the duty arose because harm was reasonably foreseeable.

A test based on simple reasonable foreseeability to establish a duty of care is rejected by the Lords.  Lord Hope relies on Lord Goff's speech in Smith v Littlewoods Organisation Ltd 1987 SC (HL) 37 (rejecting the approach of Lord Mackay of Clashfern in that case) that reasonable foresseability alone is not sufficient to impose a duty of care.  He then endorses in a Scottish context the current approach by the Lords in England that a duty of care arises whereby "it must be shown that harm to B was a reasonably foreseeable consequence of what A did or failed to do, that the relationship was one of sufficient proximity, and that in all the circumstances it is fair, just and reasonable to impose a duty of care towards B" (para [21] approving Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50; [2008] 3 WLR 593, per Lord Bingham of Cornhill at para 42.  Such an approach had been criticised by counsel for the Mitchells because "the only case … in support was Forbes v City of Dundee District Council 1997 SLT 1330, where the point had been conceded, and in the Inner House in British Telecommunications plc v James Thomson & Sons (Engineers) Ltd 1997 SC 59 Lord Morison, in his dissenting opinion, had described the “fair, just and reasonable” test as uncertain and wide-ranging" (para [25]) although Lord Hope rejected the criticisms,

"[The test] was adopted without criticism by Lord Mackay of Clashfern when he spoke for the House in British Telecommunications plc v James Thomson & Sons (Engineers) Ltd 1999 SC (HL) 9, 12. It was applied by Lord Brodie in West v Castlehill LLP [2008] CSOH 182, para 23 in a situation where he would not have regarded an analysis based simply on foreseeability to be adequate. There is no principle of Scots law that contradicts it, and the fact that the law of liability for negligence has developed on common lines both north and south of the Border provides powerful support for the defenders’ argument that it should be applied in this case." (para [25])

and after application of the authorities to the Mitchells' case concludes,

"that it would not be fair, just or reasonable to hold that the defenders were under a duty to warn the deceased of the steps that they were taking, and that the common law case that is made against them is irrelevant. I would also hold, as a general rule, that a duty to warn another person that he is at risk of loss, injury or damage as the result of the criminal act of a third party will arise only where the person who is said to be under that duty has by his words or conduct assumed responsibility for the safety of the person who is at risk. " (para [29])

Lord Scott agreed – both analysing the case as an omission on the part of the Council that did not found liability.  As Lord Scott notes,

"it is accepted in both jurisdictions that the Pharisee who passed by the injured man on the other side of the road would not, by his failure to offer any assistance, have incurred any legal liability. A legal duty to take positive steps to prevent harm or injury to another requires the presence of some feature, additional to reasonable forseeability that a failure to do so is likely to result in the person in question suffering harm or injury. The Pharisee, both in England and Wales and in Scotland would have been in breach of no more than a moral obligation." (para [39])

Lord Rodger's speech has similarities to Lord Hope's.  He also approves Lord Goff's approach in Smith (referred to by Lord Rodger by the name by which the case is known to law students across Scotland, Maloco v Littlewoods Organisation 1987 SC (HL) 37) at para [56]) although he does not view the case as involving a mere omission.  He notes,

"the position of the Council is not exactly comparable to, say, someone watching and doing nothing as a child drowns in a shallow pool or a blind man walks into the path of an oncoming car. In such cases the observer plays no part in the events. Here, however, what the Council officials told Drummond undoubtedly led on to his assault on Mr Mitchell. According to the analysis and terminology of Hart and Honoré, Causation in the Law (2nd edition, 1985), pp 194-200, by telling Drummond at the meeting that the Council were going to issue a fresh notice of proceedings, the officials provided an opportunity for Drummond to assault Mr Mitchell. It might be preferable to say that what the officials did at the meeting provided a particular reason why, foreseeably, Drummond might choose to assault him. " (para [55])

Lord Rodger notes that the statutory power of the Council to remove an anti-social tenant under s 47 of the Housing (Scotland) Act 1987 and points out that there is no obligation to notify or warn other tenants of such actions.  He argues then that

"The presumption must be that both legislatures have proceeded on the basis that any possible criminal violence resulting from the operation of these powers is to be dealt with, in the usual way, by the police and criminal justice system. " (para [63])

and consequently it is not fair and reasonable to impose liability.

Lord Rodger's approach on the question of whether this case involved an omission is supported by Baroness Hale.

Lord Brown also agrees in the final decision and can be anticipated from the tenor of his opening remarks:

"Suppose a landlord knows his disruptive tenant to be in dispute with a neighbour. Suppose further that the neighbour complains and the landlord then threatens the tenant with eviction for causing nuisance and annoyance. Suppose finally that the tenant blames the neighbour for this and attacks him. Is the landlord to be held liable to the neighbour (or to his dependents if the attack proves fatal)? The answer must be the same whether the neighbour too is one of the landlord’s tenants or merely another resident in the area, and the same whether the landlord is a rich public authority or a poor private owner (so that this is not a case about the liability of public authorities). Does the landlord in these circumstances owe the neighbour a common law duty of care—a duty of care, that is, with regard to the neighbour’s safety from the tenant? Would that be fair, just and reasonable? More colloquially—but to my mind no less accurately—would this be a good idea?" (para [79])

While generally useful in clarifying the extent of the duty of care in the Scots law of negligence there are a few other noteworthy points. 

The case makes relatively extensive use of comparative authority.  As well as the Privy Council decision in Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273 there are references to South African and American authorities. Lord Scott refers to Silva Fishing Corporation (Pty) Ltd v Maweza [1957 (2)] SA 256 (at paras [43] and [44]) and Lord Rodger to Bullock v Tamiami Trail Tours Inc (1959) 266 F 2d 326 at paras [59] – [60]).  From Lord Hope's speech (at para [23]) it appears both cases were discovered by their Lordships during private researches.

The second point is that while Lord Scott and Baroness Hale refer to Scottish authorities – Donoghue v Stevenson and Smith v Littlewoods Organisation Ltd in the case of Lord Scott, and Donoghue and  MacFarlane v Tayside Health Board (sic – and an error uncorrected on the House of Lords website to this day) in the case of Baroness Hale, both the English citations of [1932] AC 562, [1987] AC 241 and [2000] 2 AC 59 rather than the Session Cases references of 1932 SC (HL) 31, 1987 SC (HL) 37, and McFarlane at 2000 SC (HL) 1.  The interested reader is referred to WW McBryde, "The citation of cases in court" in Scots law into the 21st Century: essays in honour of W.A. Wilson (ed H L MAcQueen) pp 170 – 181.

The third point comes from the speech of Lord Brown.  He states

"There was some suggestion in argument that the test for liability was different (and more exacting) in England than in Scotland but that cannot be. That would be bizarre indeed, not least given that much of England’s negligence law was forged in Scottish appeals. " (para [80])

before proceeding to reach a decision without referring to any Scottish cases at all.  Comment seems superfluous.

Don’t send for a Scots lawyer

Scots Law News has oft repeated a solution to problems – when in trouble send for a Scots lawyer (see here, here, here and here).  However, we should stress that this is not always the solution to ills.

The former chief executive of the people's bank, the Royal Bank of Scotland plc, Sir Fred Goodwin appeared before the Treasury select committee on 10th February 2009.  The uncorrected transcript produced on the treasury Select committee website reveals that when asked by Nick Ainger MP (Q779)

"what banking qualifications have you got?"

Sir Fred replied,

"Whether you would call them banking qualifications or not, but I have a degree in law".

Sir Fred is a law graduate of Glasgow University.


Speeds in our time

On February 10th the retired Bishop of Brechin the right reverend Neville Chamberlain was convicted by Edinburgh justice of the peace court of speeding at 40 mph in a 30 mph area.  He was fined £90 and his 3 penalty points saw him given an automatic 6 month driving ban through having received a cumulative 12 penalty points. Sentence was formally deferred for 3 days to enable the former bishop to recover his car from an airport car park.

Asking small children to kick police officers is wrong

Last week we noted that swearing at police officers is not necessarily a criminal offence.  Days later it was reported that asking a small child to kick a police officer will be punished.

Mr Thomas Brown was detained on suspicion of theft.  Angered by the detention he told the girl "there's a policeman, go and kick him."  She did.  The severity of her attack is not reported but led Mr Brown to an appearance before Sheriff Michael Fletcher in Perth sheriff court.  Mr Brown was not charged with theft but his actions in telling the girl to kick the officer saw him convicted of – it is reported – inciting the child to commit a crime and fined £100. 

Mr Brown accepted that his behaviour was wrong telling reporters outside Perth sheriff court,

"The child was sitting in a car outside. She saw me being taken out and she went to go and get me.  It was a fair result today for telling the kid to kick them. I admit I shouldn't have done it."

Some may wonder if a child below the age of criminal responsibility can be incited to commit a crime – but we will leave that philosophical dilemma to those better qualified to comment.

Tommy Sheridan updates

The preliminary hearing in the perjury trial of Tommy Sheridan (see here) has been delayed.  By joint application of the crown and the defence the case has been delayed until 11th May of this year.

In the trial Mr Sheridan will be represented by Donald Findlay QC (as was rumoured in December 2007).  Mrs Sheridan will be represented by Paul McBride QC.

While awaiting developments in the trial and resuming his legal studies Mr Sheridan represented Mr Roger Winsborough on 29th January in an employment tribunal (for our earlier report and the background on this see here).  In its report of his appearance the Herald noted that Mr Sheridan won an initial point.  It was alleged by the representative for Scottish Coal that Mr Winsborough's claim should be dismissed because Mr Winsborough had wilfully failed to comply with an earlier Tribunal order to lodge information about his loss of earnings.  The Tribunal agreed the delay in lodging was not wilful – accepting the explanation that Mr Sheridan's job in January (on the nature of which see here) had meant that he was unable to assist.  The case was scheduled to continue in early February, but has thus far generated no further media publicity.

Small claim against RBS in Oban

The small claims action brought by Ian Hamilton QC against the Royal Bank of Scotland in Oban Sheriff Court (see previously here) began on 18 February 2009.

As anticipated here, RBS is arguing that the case is too complex for small claims procedure and seeking to have it remitted elsewhere; if that argument succeeds, Mr Hamilton will be forced to give up his claim as a result of his potential liability for expenses if he loses the case.

The case is being heard before Sheriff Simon Pender and it is understood that he will give a ruling on the complexity point in a week's time.  Scots Law News offers the thought that it would be good business for Scotland's sheriff courts if it was held that the case can proceed.

No running commentary (at least as yet) on Mr Hamilton's blog.

Stefan Cross update – communication from action 4 equality

Email below received on 12 February 2009 from Mark Irvine commenting on our 2 January 2009 story about the Scottish clients of English solicitor Stefan Cross.  Looks like no love lost between Unison and Action 4 Equality.  Scots Law News is happy to be updated, however belatedly.

 Dear Hector

Try to keep up – your article on the Quinn case is poorly informed – here's what we had to say about it weeks ago – on the Action 4 Equality Scotland blog site!

Kind regards

Mark Irvine

Storms and Teacups (2)

Regular readers of the Action 4 Equality Scotland blog site have been in touch to say that Unison has mounted another of its regular attacks on Stefan Cross – this time by including an article on the Quinn case in its members' magazine. The claims in the magazine are inaccurate and untrue.

Union bosses are angry at Action 4 Equality Scotland and Stefan Cross for highlighting the big pay gap between male and female jobs – and for leading the fight on equal pay – because that's exactly what the unions should have been doing all this time. 
Here's what we had to say about the Quinn case in December 2008 – nothing has changed since then – apart from the fact that the number of Stefan Cross clients keeps increasing by the day.

Post from 22 December 2008

"Regular readers of equal pay news in the press may have come across a story about a disgruntled former SCS client from Edinburgh – who's upset at receiving a bill from Stefan Cross.

For reasons that have never been explained, the woman walked away from her agreement with Stefan Cross. But she then became annoyed at receiving a bill for work carried out on her behalf – up to the point that she decided to end the agreement.

The whole thing is really just a storm in a teacup and the person concerned is being used by her trade union, Unison, to attack Stefan Cross. Anyway, up till now we've resisted the temptation to respond, because our only concern is to progress the thousands of equal pay claims lodged in the Scottish tribunal system.

But since Unison keeps spreading lies and misinformation about the case, Stefan Cross has released the following statement to the press:

"As far as we're concerned, this is a client who has had a lot of work done on her case and has received a bill. We had a ten-day hearing at a tribunal in June and August with leading counsel, at considerable expense, establishing the client's right to pursue her claim along with all the other Edinburgh cases."We have never suggested and we are not suggesting now that the client should pay any more than the £500 we have asked her for. She decided to end the agreement, not us."

For whatever reason, the person is disgruntled and has gone back to Unison to pursue her case.

Now this is odd because Unison failed to advise her that she had a case to begin with – and Unison is the same trade union that kept its women members – in Edinburgh and elsewhere – completely in the dark about equal pay for years.

So, we say good luck to her – because she'll definitely need it to get anywhere with her trade union – especially given its previous track record.

For the latest news on equal pay visit:

Scots Law News would simply add that there is still no sign on the Court of Session website of any decided case involving claims by either Stefan Cross or any erstwhile client.

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