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7 December, 2016

Brenda Gray and others v The Advocate General [2016] CSOH 166

Ampersand’s Simon Di Rollo QC [with Barney Ross of Compass Chambers] has successfully argued that in a case brought under the Damages (Scotland) Act 2011 being “accepted as a child of the deceased’s family” [in terms of paragraph (b) of section 14(1) ] and similarly being “accepted as a grandchild of the deceased” [paragraph (d) of section 14(1)] does not require the claimant to be of any specific age at the time when such acceptance took place.  The defender’s argument that “child” is defined by reference to age, personal status and the element of “bringing up” was rejected.  The court accepted the detailed written argument presented for the pursuer that in the context of the legislation the words “child” and “grandchild” are a reference to relationship and not age.  Accordingly it is a question of fact in each case whether a person has been accepted “as a child” [“or grandchild”] and the fact that such a person is well into adulthood when such acceptance takes place would not necessarily prevent a relevant claim being made.  In this case the pursuers point to particular facts and circumstances showing that the deceased has accepted the pursuers as his children and grandchildren before he died.  Those include the closeness of the relationship, the absence of other children and other family, the arrangements made in testamentary provisions and the involvement and assistance in medical treatment and the final illness.

A copy of the written submission is available here and the Opinion of Judge Mulholland QC here.

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