Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 37
A228/07	OPINION OF LORD MALCOLM in the cause MW Pursuer; against GLASGOW CITY COUNCIL Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: J.J. Mitchell, Q.C., Stirling; Drummond Miller LLP

Defender: Peoples Q.C., G. Clarke

12 March 2009

[1] In this action I heard a debate on the procedure roll at the instance of the defenders. The defenders seek a preliminary proof on time bar, limited to the issues raised by section 19A of the Prescription and Limitation (Scotland) Act 1973. The debate took place at the same time as that in a similar action, namely CG v Glasgow City Council. The parties' submissions were virtually the same in both cases. In my opinion in CG's case I have dealt with the submissions in some detail. I refer to the terms of that opinion ( [2009] CSOH 34).

[2] Paragraph 1 of the Note of Argument for the defenders in MW's case sets out an argument which was not repeated in the Note in CG. It was touched on briefly in the opening speech for the defenders when Mr Clarke discussed the relevancy of the averments concerning the role of the defenders' predecessors. As I mention in my opinion in CG, the pursuer's counsel explained that both actions are based on the vicarious liability of the employers of the alleged abusers, as opposed to any direct case of fault against the defenders or their predecessors. In any event, I am not prepared to exclude any of these averments from probation. In addition, I see no merit in the suggestion that further specification should be provided to distinguish the alleged assaults from other forms of inappropriate conduct. It follows that I reject the propositions contained in paragraph 1 of the Note of Argument.

[3] Otherwise no separate issue requires consideration in respect of the present action. I therefore simply refer to and rely on my opinion in the case of CG v Glasgow City Council. For the reasons explained in that opinion I shall refuse the defenders' application for a preliminary proof on time bar restricted to the section 19A case. Instead, as invited by counsel for the pursuer, I shall allow a proof before answer on all of the parties' averments and pleas-in-law.