Westwater Advocates’ Calum MacNeill QC represented Greater Glasgow Health Board in an unusual case where the pursuer sought leave to amend to introduce a new case of fault based on the Supreme Court decision in Montgomery v Lanarkshire Health Board. The problem was, the Minute of Amendment was presented after the Lord Ordinary had already made avizandum at the end of a seven-week proof.
Jill Clark had sued over severe injuries sustained as a result of oxygen deprivation during birth, valuing her claim at £15 million. She put the blame on inadequate management of her delivery by the obstetrician and midwifery staff on duty at the Queen Mother’s Hospital, Glasgow in March 1992. A proof was heard over seven weeks in January and February 2015 at the end of which the Lord Ordinary made avizandum. A month later, after the Montgomery decision on informed consent had been issued, her lawyers presented a Minute of Amendment seeking to blame, among others, the consultant who had counselled her parents months before her delivery date. They claimed that if the pursuer’s mother had been properly informed of the risks involved she would have opted for an elective caesarean section from the outset.
The Lord Ordinary refused to allow the new case to be introduced at such a late stage citing time-bar issues and the uncertain future progress of the action if the Minute were received. He also saw no good reason why the case could not have been pled earlier. He granted leave to reclaim but the pursuer decided to await the Lord Ordinary’s decision on the merits before deciding whether to reclaim. The decision on the merits was that there had been no negligence in the management of labour. The pursuer then reclaimed, but only took issue with the refusal to allow in the new case.
In a 52-paragraph decision issued today, the First Division has explained why it refused the reclaiming motion. First, the pursuer had acquiesced in the decision not to allow the Minute of Amendment to be received by not reclaiming against it but instead allowing the Lord Ordinary to pronounce a final interlocutor. An appeal against a final interlocutor does not necessarily open up all prior interlocutors to review. In any event, the Lord Ordinary’s reasoning was sound and the Division would have made the same decision itself.
Calum’s junior was Phil Stuart of Ampersand. The unsuccessful pursuer was represented by Andrew Smith QC of Compass Chambers and Crown Office Chambers, London.
Click here for the full Opinion of the Inner House.