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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 38
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OPINION OF LORD EMSLIE
in the cause
MARGARET GENNELLI
MALCOLM
Pursuer;
against
DUNDEE
CITY COUNCIL
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
R G Milligan; Brodies LLP
Defenders: Duncan;
Simpson & Marwick
22 February 2007
Introduction
[1] In
this action the pursuer seeks damages from her former employers in
respect of alleged harassment at
work between 1996 and 2002. Her claim
encompasses solatium for anxiety and
distress, leading on to some degree of psychiatric illness, together with a
continuing loss of earnings following the termination of her employment with the
defenders in the latter part of 2002.
[2] These
proceedings, in which the summons was served on 24 November 2005, take the form of an action of
harassment under section 8 of the Protection from Harassment Act 1997. The defenders now maintain that the action is
time-barred by virtue of section 18B of the Prescription and Limitation (Scotland)
Act 1973 (as inserted by section 10 of the Act of 1997). Section 18B provides inter alia as follows:-
"(1) This section applies to actions of
harassment (within the meaning of section 8 of the Protection from Harassment
Act 1997) which include a claim of damages.
(2) Subject to subsection (3) below and to
section 19A of this Act, no action to which this section applies shall be
brought unless it is commenced within a period of 3 years after -
(a) the date on which the alleged harassment
ceased; or
(b) the date (if later ...) on
which the pursuer in the action became, or on which, in the opinion of the
court, it would have been reasonably practicable for him in all the
circumstances to have become, aware, that the defender was a person responsible
for the alleged harassment or the employer or principal of such a person.
(3) In the computation of the period
specified in subsection (2) above there shall be disregarded any time during
which the person who is alleged to have suffered the harassment was under legal
disability by reason of nonage or unsoundness of mind."
In contrast to the time-bar
provisions for other actions of damages for personal injuries in section 17(2)
of the Act, section 18B(2) does not permit the running of the three-year
limitation period to be delayed by a claimant's justifiable ignorance of the
seriousness of his or her injuries.
[3] According
to the defenders the action was commenced more than three years after the last
possible date on which any alleged harassment ceased, and would therefore
require to be dismissed unless the pursuer could successfully invoke the
court's equitable discretion to override the statutory time limit under section
19A of the 1973 Act. That section is in inter alia the following terms:-
"(1) Where a person would be entitled, but for
any of the provisions of section ... 18B of this Act, to bring an action, the
court may, if it seems to it equitable to do so, allow him to bring the action
notwithstanding that provision."
[4] At
the beginning of the procedure roll hearing before me, counsel for the pursuer
very fairly and candidly accepted that the triennium
began to run against his client some time prior to 24 November 2002, and
accordingly that the action was prima
facie time-barred under section 18B of the 1973 Act. Indeed, at a later stage, he went further in
inviting me to proceed on the basis that 24 October 2005 (the third anniversary of the
pursuer's last day at work) was the latest possible date on which the action
might timeously have been commenced. He
went on to acknowledge that, on the pleadings, the triennium might perhaps have begun to run at some earlier date
between February and October 2002, bearing in mind that section 18B(2)(a)
appeared to focus on the date when any actionable conduct ceased, rather than
on the date or dates at which harm was suffered by the pursuer. Nonetheless, invited counsel under section
19A to allow the action to proceed. The
interesting and well-argued debate which I have now heard on the procedure roll
concerned the disputed issue as to whether or not section 19A could properly be
operated in the pursuer's favour in the circumstances of this case.
Pleadings
[5] So far as relevant for
present purposes the pursuer avers (in condescendence 4) that she was subjected
to harassment, bullying and abuse by two fellow members of staff at the school
to which she was transferred in 1996.
Specific incidents causing work-related stress are alleged to have taken
place in 1998/9, 2001 and early 2002, but beyond that the pursuer's pleadings
are somewhat vague and inspecific as to what she says was going on. In particular, it is not clear how far the alleged
harassment continued between the pursuer's return to her duties in February
2002, following a short stress-related absence, and the agreed date on which
she finally went off work, namely 24 October
2002. By this time the
defenders had instituted disciplinary proceedings against the pursuer herself,
and eventually the pursuer "... felt so threatened that she resigned" on 29 November 2002.
[6] Over
and above that, the Record contains significant averments regarding the extent
to which internal grievances and employment tribunal claims were, over the
years, deployed by (and in some instances against) the pursuer. Some of these averments appear in articles 4
and 6 of the pursuer's condescendence, while others appear in the defenders'
answer 4 and 6 and are met with a blanket general denial from the pursuer. What is clear, however, is that the pursuer
was active in pursuing her grievances over alleged harassment with the
defenders from at least 2001 onwards, and that following the termination of her
employment she instituted three separate claims before the employment tribunal
on broadly the same grounds. At page 20A
of the Record, the pursuer makes averments of an ongoing employment tribunal
hearing in March 2005 at which she says that the potentially serious nature of
her psychiatric condition was drawn to her attention. At page 20E she avers that "an employment
tribunal hearing based on the same allegations" did not conclude until the
summer of 2006. In the course of the
debate before me, I understood counsel on both sides of the bar to confirm that
that decision had in fact gone against the pursuer after some 33 days of proof,
and that she now had an appeal pending before the Employment Appeal
Tribunal.
[7] With
regard to the circumstances in which the present action came to be raised, and
in which the pursuer now seeks to rely on section 19A of the Act, counsel for
the defenders directed attention to the pursuer's averments at pages 19D to 21B
to the following effect:-
"Esto the action is time-barred in terms
of section 18B of the Prescription and Limitation (Scotland)
Act 1973 ..., it would be equitable to allow it to proceed. The pursuer did not realise that she was
suffering from a recognised psychiatric injury that might prejudice her future
employment (as opposed to the work-related stress that she had previously
suffered and recovered from) during the course of the evidence of a
Psychologist at an Employment Tribunal Hearing in March 2005. The pursuer thereafter consulted a member of
ACAS, who advised the pursuer that they should raise an action for personal
injuries. The pursuer instructed
Solicitors in Dundee in September 2005. They took the reasonable view that the triennium did not start to run until her
retirement. They instructed Edinburgh
Agents to raise proceedings on 31 October
2005. The Edinburgh Agents
instructed Counsel on 3 November
2005. The Summons was
returned on 8 November 2005
and signetted on 16 November
2005. The Summons was served
on 24 November 2005. The Defences initially lodged did not raise a
Defence of timebar. Timebar was not
raised as an issue until about April 2006 by way of adjustment. The action was raised very shortly after the
expiry of the triennium. There has been no subsequent delay. In this type of case precise date upon which
the triennium commences is often
unclear. The facts and circumstances
giving rise to the claim have been thoroughly investigated by the defenders and
are well documented. The defenders have
been able to lodge substantial Defences.
An Employment Tribunal Hearing based on the same allegations did not
conclude until the Summer of 2006.
Numerous witnesses gave evidence during that hearing. As of November 2006 the outcome is still
awaited. There is little dispute as to
the facts. The key issue in dispute is
whether those facts amount to 'harassment' in terms of the Protection from
Harassment Act 1997, which is essentially a matter of law. Explained and averred that in the
circumstances condescended upon it would be equitable for the Court to allow
the action to proceed against the first defenders. Reference is made to section 19A of the
Prescription and Limitation (Scotland)
Act 1973."
[8] As
against that, the defenders in answer 6 aver inter alia:-
"It would not be
equitable to allow the action to proceed.
The claim is stale. The pursuer
has ventilated the same issues already in two Employment Tribunals. It would be oppressive to the defenders, a
public authority, to allow the action to proceed. Conversely the value of the case to the
pursuer is modest."
Parties' submissions
[9] In
seeking dismissal of the action at this stage, counsel for the defenders cited
a number of decided cases to remind me of the general approach which a court
should take in determining an issue of this kind. Since there was in the end little dispute
between the parties as to the applicable principles, it will perhaps be
sufficient if I briefly set out my understanding of these principles as
follows:-
1. Although section 19A has often been
said to confer on the court an "unfettered" discretion (cf. Donald v Rutherford 1984 SLT 70, per
Lord Cameron at page 75), it must nevertheless be construed and applied
with the relevant primary limitation provision in mind. Here section 18B reflects Parliament's
considered judgement that actions of harassment should prima facie be brought
within a period of three years of the date when the alleged harassment ceased. Conversely defenders should, in Parliament's
view, be entitled to "close their books" on a potential claim after that
time. Reference may in this context be
made to Donald, supra; Adams
v Bracknell Forest Borough Council
2005 1 AC 76, esp. per Lord Hoffman
at paragraphs 54-5; B v Murray (No. 2) 2005
SLT 982, per Lord Drummond Young at
pages 987-990 in particular.
2. There is thus a material onus on a pursuer who seeks to invoke
the court's equitable discretion to override such a primary time limit. The pursuer must show cause why an exception
from the primary time limit should be made in his or her favour.
3. Before the court can properly be asked
to exercise its statutory discretion under section 19A, a pursuer must aver
facts and circumstances which are potentially sufficient for that purpose. In particular, a pursuer must specify the
circumstances in which the action came to be raised late, since without
adequate detail on that score the court would have no proper context within
which to judge the equities of the situation.
In addition to the cases already cited, reference may here be made to Clark v McLean 1994 SC 410; Cowan v Toffolo Jackson & Co Limited 1998 SLT 1000; Nimmo
v British Railways Board 1999 SLT
778; and Morrice v Martin Retail Group
Ltd 2003 SCLR 289. As counsel for the pursuer put it in the
present case, a pursuer must, as a matter of relevancy, "... do enough to raise
the issue" for determination under section 19A, after which it is for the court
(with or without a proof on disputed facts) to decide that issue in the
exercise of its equitable discretion.
4. Despite the observations on the need
for relevant averments in Clark, supra,
and the decisions on relevancy in cases such as Cowan and Nimmo, there is
perhaps room for argument as to how far in some situations at
lease the issue is strictly one of relevancy at all. Every case must depend on its own facts and
circumstances; there is no universal
standard to be attained; and it may
require very little before the court's concern is simply to judge the
sufficiency and cogency of whatever factors may be brought to its attention. However, as it seems to me, a pursuer could
not on either approach expect a favourable outcome without providing some
explanation of the circumstances in which the action was not raised timeously,
or without identifying factors potentially capable of justifying the relief
sought.
5. Among the principal factors for
consideration by the court under section 19A are (i) the circumstances in which
the action was commenced out of time;
(ii) the conduct of the parties generally; (iii) the prejudice, if any, liable to be
sustained by the pursuer if the action were not allowed to proceed; and (iv) the prejudice, if any, liable to be
sustained by the defenders if the primary timebar were to be overridden.
[10] In the present case, counsel for the defenders submitted that
there were many considerations which should lead the court to reject the
pursuer's application under section 19A.
In particular, there was no specific averment of harassment after
February 2002, with the result that the triennium
may well have expired some months before the action was raised. At the latest, the pursuer conceded that the triennium has expired on 24 October 2005, the third
anniversary of the date when she went off work for the last time. The present proceedings were thus at least one calendar month out of time. Over and above that, the pursuer advanced no
explanation as to why, prior to March 2005, she had apparently not considered
the possibility of raising court proceedings.
Between March and September 2005, by which time the pursuer allegedly
knew that her condition was serious and had received certain advice regarding
legal action, there was no explanation as to why she did not even take the
preliminary step of consulting solicitors.
Thereafter, while no submission as to possible alternative remedies was
made, there was no adequate explanation of why the instruction of a summons
took more than a month, or as to why service of the summons, once available,
was further delayed. In these respects,
the pursuer must take responsibility for the acts and omissions of her legal
representatives.
[11] Over and above that, according to counsel, the pursuer's
pleadings were essentially silent as to any particular prejudice that she might
sustain in the event of her application being rejected. No doubt she would lose the right to pursue
her present claim, but that had to been seen against the background of
extensive proceedings before employment tribunals in which substantially the
same issues had (unsuccessfully) been ventilated. By contrast, it could be said with some
confidence that the defenders would suffer significant actual prejudice in the
event of this action now being allowed to proceed. They would lose the protection which
Parliament had intended them to enjoy against late claims of this kind. After a proof lasting 33 days before an
employment tribunal, in which the individuals blamed for the alleged harassment
did not even give evidence, the defenders would now be exposed to lengthy and
expensive re-litigation of essentially the same issues. In that context it was also relevant to note
that the pursuer's claims so far had been rejected, and that since she was now
on legal aid the defenders would have no prospect of recovering expenses in the
event of their again being successful.
[12] Taking all these circumstances into account, it would not be
equitable for this action to be allowed to proceed. The balance of prejudice was heavily against
the defenders, and where all the prerequisites for legal action had been well
known to the pursuer for a considerable time she could not overcome the lack of
urgency which she and her agents has shown.
If in doubt, proceedings should have been raised at the earliest
opportunity, and it was the pursuer, and not the defenders, who should suffer
where that had not happened. Even if the
prejudice to the defenders was not much worse than it might have been had the
action been raised in time, they should still be entitled to rely on the
primary time-bar operating in their favour.
Further considerations pointing in the same direction were (i) the
relatively low level at which the pursuer's claim might be assessed, and (ii)
the fact that the defenders' alleged liability was vicarious only and not as
actual perpetrators. And while, for the
purposes of section 19A, it was open to the pursuer to aver the date when she
became aware of the seriousness of her condition, it had to be borne in mind
that Parliament had excluded any such issue from consideration under section
18B, and also that the averred date of awareness was around eight months prior
to the raising of this action.
[13] For all of these reasons, counsel for the defenders submitted
that the action should be dismissed at this stage without further inquiry. Failing that, the court should appoint a
preliminary proof on the time-bar issue alone, since a proof at large would for
obvious reasons be inappropriate.
[14] In response, counsel for the pursuer asked me to sustain his
first plea-in-law and allow a proof before answer on the merits of the
action. Failing that, he submitted that
the appropriate course would be to allow, not a preliminary proof on time-bar,
but a proof at large with all pleas standing.
The pursuer had, it was said, got over the "... relatively minor hurdle"
of averring enough to raise an issue for determination under section 19A, and
the real question was whether or not the court should exercise its equitable
discretion in the pursuer's favour.
[15] So far as the law was concerned, counsel reminded me that a
common law claim for work-related stress would have required proof of some
recognised psychological or psychiatric injury.
By contrast, the new statutory delict under the 1997 Act permitted a
claim to be made for mere anxiety.
Section 18B of the 1973 Act clearly applied to an action of harassment,
but the application of section 17 could not be altogether excluded where,
as here, the pursuer's injuries were serious enough to qualify along ordinary
"personal injury" lines. For the
purposes of section 19A, however, the relevant factors were discussed in the
recent Scottish Law Commission discussion paper No. 132. There, it was suggested that English authorities
should be taken with some caution because, in the English equivalent of section
17(2) or 18B(2), the test for delaying the triennium
was whether a plaintiff could "reasonably", as opposed to "reasonably
practicably", have known certain things by a particular date. The equivalent of section 19A (section 33 of
the Limitation Act 1980), could therefore be more strictly applied where
extension of the primary time-bar was easier to achieve. In the Law Commission's paper, moreover, the
presence or absence of an alternative remedy against legal advisers was seen as
a significant factor, and prejudice to the defenders was discussed in terms of
"demonstrable impairment" of their opportunity to investigate and defend a
claim. Records might be lost, witnesses
might be deceased and memories might be dimmed, although even these factors
might be of lesser significance if a claim had been timeously intimated.
[16] Counsel went on to submit that, in the circumstances of this
case, there was no realistic prospect of any recovery for alleged professional
negligence on the part of the pursuer's advisors. The solicitors instructed in September 2005
had been considering the possibility of an ordinary personal injuries claim at
common law, and it was only when counsel was instructed that a claim under the
1997 Act was, for practical reasons, preferred.
According to counsel, it was not reasonable to expect the local agents
to be up-to-date with the relevant caselaw, nor to criticise them for taking
the view "... that the triennium did
not start to run until (the pursuer's) retirement". It could not be said that no solicitor of
ordinary competence exercising reasonable skill and care could have taken that
view, and while "best practice" would no doubt favour early action that was
rather a counsel of perfection in a difficult case. In all the circumstances, this action might
not be more than one month out of time, and the surrounding circumstances were now
adequately before the court.
[17] As regards prejudice, the court had little more to go on but
the "self-cancelling" factors which would arise depending on the way in which
the court's equitable discretion under section 19A was exercised. On the one hand, the pursuer would lose her
right of action whereas, on the other, the defenders would lose the protection
of the statutory time-bar. It was
accepted, however, that the defenders were legitimately entitled to rely on any
detrimental consequences of having to meet the pursuer's claim at this
stage. They could legitimately point to
the fact that the same allegations had been (unsuccessfully) aired elsewhere
over inter alia a period of 33
days; that the pursuer was now legally
aided; and that on any view the proof in
this action would require more than a "standard" 4-day diet. On the other hand, these were minor factors
here, since they would have arisen anyway even if the action had been timeously
raised.
[18] Turning to the conduct of the parties, counsel invited me to
hold that there had been (relatively speaking) little delay in raising the
action, and no undue delay since. As
regards the period to March 2005 on which the defenders sought to rely, the
pursuer had been entitled to pursue claims before the employment tribunal, and
no further explanation was required. The
period from March to September 2005 was more difficult, but it was not clear
when the ACAS advice had been received or whether the pursuer might have
reacted more quickly than she did. From
September 2005 onwards, the solicitors were dealing with a claim in a difficult
area of law where investigation and funding might not be straightforward. The solicitors concerned had had no previous
involvement with any of the pursuer's prior claims.
[19] In all the circumstances, the court should if possible
determine the issue on the pleadings and other information now available. On equitable grounds, this action should be
allowed to proceed, failing which a proof at large, with all pleas standing,
would be preferable to a preliminary proof on time-bar alone. So far as possible, the objective should be
to minimise the risk of the same issues having to be canvassed more than
once. Such a risk was, incidentally, reduced
vis a vis the employment tribunal
proceedings, since (a) they had involved a substantial legal dispute on
"victimisation", and (b) they did not cover the quantification of any
claim.
Discussion
[20] In the particular
circumstances of this case, I am not persuaded that the pursuer's application
can, or should, be determined on a strict assessment of the relevancy of her
averments. For one thing, parties were
agreed that certain further information which does not appear in the pleadings
on either side (for example regarding the duration and outcome of the latest
employment tribunal proceedings) should nevertheless be taken into account by
the court. In any event, while the court
is familiar with applying the standard test of relevancy in proceedings which
concern the establishment and vindication of some defined legal right, the
pursuer's present application is merely to have an unfettered equitable
discretion exercised in her favour. In
such a context, it is in my view hard to identify ab ante any particular standard or target to be achieved in a
party's averments, other than perhaps the need, as described by counsel for the
pursuer, to "do enough" to raise an issue under section 19A for
determination. Admittedly, in an extreme
case, it might be said that the pursuer had failed to "do enough", for example
by saying nothing as to the circumstances in which an action was raised out of
time, or by ignoring all questions of prejudice and conduct, or by founding on
an obviously irrelevant factor, but otherwise it seems to me that the question
for the court is really just one of degree as to whether there has been
identified some sufficient basis on which its equitable discretion may properly
come into play. Here the pursuer has
made averments as to the circumstances in which the action was raised late, and
she has also raised for consideration the balance of prejudice liable to affect
the parties on the exercise, one way or the other, of the court's
discretion. In my judgment these
averments are sufficient (i) for the limited purpose of raising an issue under
section 19A for determination, and (ii) to preclude outright refusal of the
application without the court requiring to embark on any assessment of
competing equities.
[21] Having reviewed the parties' pleadings and the other
information placed before the court, I have reached the conclusion that the
pursuer's application must be refused.
In my opinion it would not be equitable to allow her to proceed with
this action notwithstanding the fact that it was raised outwith the statutory
limitation period under section 18B of the 1973 Act. The principal factors which lead me to that
conclusion may be summarised as follows:-
(i) This action was commenced at least one
month, and quite possibly several months, after the expiry of the triennium. In no sense can the delay be categorised
as minor or de minimis, especially
when it is remembered that actions only one or more days out of time have
sometimes been dismissed in comparable circumstances.
(ii) A significant feature here is the extent
to which the pursuer has actively pursued her grievances both before and after
the cessation of her employment with the defenders. In March 2005, proceedings before an
employment tribunal were already under way, and by then the pursuer was clearly
aware of (i) her exposure to alleged harassment from work colleagues; (ii) the identity of the defenders as the
responsible employers; and (iii) the
potentially serious effects of that alleged harassment on her mental
health. Indeed the pursuer had been
aware of the first two of these factors for some years previously. This is not, in other words, a case in which
the pursuer can claim bona fide
ignorance of her rights up to a late stage.
(iii) No worthwhile explanation is advanced on
the pursuer's behalf as to what steps (if any) she took to explore the
possibility of raising court proceedings between March and September 2005. This period is potentially important when it
is borne in mind that the last specific instance of harassment causing
work-related stress is averred to have taken place in February 2002. Even allowing for the vague assertion of
continued abuse at page 8A-B on Record, the expiry of the triennium under section 18B of the 1973 Act was clearly imminent
and urgent action was therefore required.
(iv) There is no satisfactory explanation as
to why the solicitors consulted in September 2005 took the view, as averred on
Record at page 20B, that the triennium
"... did not start to run until (the pursuer's) retirement". Under either section 17(2) or 18B(2) of the
Act, the date when actionable conduct ceased is prima facie an important date for consideration on behalf of any
claimant.
(v) The pursuer offers no explanation as to
why it took over a month before the preparation of a summons was instructed,
nor as to why it took more than two weeks to have the present summons signetted
and served once it became available.
(vi) Beyond losing her right of action on
account of the time-bar in section 18B of the Act, the pursuer identifies no
particular prejudice which would affect her if relief under section 19A were to
be refused. On present information I am
not persuaded that the possibility of an alternative claim elsewhere can be
excluded altogether, although by the same token I am not persuaded that any
such claim is necessarily open either. For
some years, moreover, the pursuer has actively, and with great persistence,
pursued her grievances regarding harassment in an employment context, and I do
not consider that her recent lack of success before the employment tribunal can
properly serve as a reason why a time-barred court action on similar grounds
should be allowed to proceed.
(vii) By contrast it seems to me that, if this
action were now allowed to remain in court, the prejudice to the defenders may
properly be regarded as significant. It
may be that they have already had an opportunity to investigate some of the
issues, but having spent 33 days contesting the pursuer's claim before an
employment tribunal, apparently with some success, they are in my view well
entitled to recoil at the prospect of (a) having to re-litigate the same issues
again in court with a legally-aided pursuer and (b) additionally having to
investigate and contest entirely new issues such as the quantification of her
claim. To require them to do so on
"equitable" grounds, where the action is well out of time, would to my mind
involve an inappropriate and oppressive exercise of the court's
discretion.
Decision
[22] It may be that some of the
foregoing considerations would be insufficient in themselves to justify a
discretionary refusal to allow the pursuer's action to proceed. Cumulatively, however, it seems to me that
they tip the balance decisively in the defenders' favour. I shall therefore sustain the defenders'
first plea-in-law, repel the first plea-in-law for the pursuer, and dismiss the
action. For completeness I need only add
that if I had not been disposing of the matter in this way I would have allowed
a preliminary proof on time-bar alone. A
proof at large would in my view have involved an unacceptably high risk of
wasted time and expense.
