Mesh debate judgment clarifies the scope of Montgomery ruling
On 1 June 2018, Lord Boyd of Duncansby issued his Opinion in the mesh litigation, having heard a two-week debate in December. A range of issues were canvassed during that debate. All are important for the future of that litigation. But one may prove to be of more general application and importance: the proper application of the Montgomery test.
Montgomery and what is a “reasonable treatment option”
In Montgomery v Lanarkshire Health Board [2015] UKSC 11, the Supreme Court held that in obtaining a patient’s informed consent, a doctor had a legal duty to discuss the reasonable treatment options and the material risks associated with those treatment options. In the present litigation, the clinicians argued that what was a reasonable treatment option remained a matter of professional judgment and thus regulated by the Hunter v Hanley test for professional negligence. In other words, to make out a case based on a failure to present a particular treatment option, a patient would need to show that no ordinarily competent clinician, exercising ordinary skill and care, would have failed to offer that option. Such an allegation must be underpinned by an expert opinion to that effect (D v Lothian Health Board [2017] CSIH 27 at para.73). On the other hand, the pursuers argued that what was reasonable was to be determined by reference to what a patient might find reasonable after a full discussion of all the treatments, whether or not those were available. In other words, the pursuers argued that a doctor was under a legal duty to present treatment options which she herself was unable to perform (whether by lack of training or availability in that particular hospital) and, if necessary, arrange referral to an appropriate hospital.
Lord Boyd preferred the argument for the clinicians (paras.38-45) and concluded that decision in Montgomery represented “a limited, albeit important, innovation on the rule in [Hunter v Hanley]” that was restricted to the question of risks associated with treatment options. Lord Boyd cited the submission presented to the Supreme Court by counsel for Mrs Montgomery: “Decisions about diagnosis and treatment must necessarily, and by definition, be made by the medical practitioner by reference to his special skill, learning and experience in an expert field which is not shared by the patient. By contrast decisions by the patient as to whether to submit to proposed treatment are his to make as of right, and his to make by giving whatever weight he thinks it right to put upon the risks and benefits which the options available bring.” (para.44). That, Lord Boyd held, emphasised the limited extend of the decision in Montgomery. Decisions about treatment “by definition” being matters of clinical skill, learning and experience, it remains appropriate for them to be assessed by reference to the test for reviewing any other exerciser of professional skill and judgment, namely that in Hunter v Hanley.
Lord Boyd’s decision represents the first (Scottish) judicial recognition of the more limited change made by Montgomery to the law on informed consent. Thus, to plead a relevant case based upon treatment options, a pursuer must still engage with the Hunter v Hanley test (and thus hold a supportive expert opinion). Furthermore, a pursuer must also plead what she would have done (i.e. which alternative she would have selected) had she been presented with the options she claims to have been entitled to (paras.46-50). Those conclusions are likely to have general application to claims based upon informed consent.
In the current cases, the outcome of Lord Boyd’s judgment is that the pursuers have not been allowed proof on any of the alternatives they claim should have been presented and thus are left with a simple case: the operation they had and now complain of or no operation at all.
Other points taken on behalf of the clinicians
In addition to the “treatment options” point, those representing the clinicians asked Lord Boyd to consider several other issues. First, in relation to causation, it was argued that, following the approach of the High Court of Australia in Wallace v Kam [2013] HCA 19, the only risks that were relevant were those that were not warned of and which materialised (as opposed to risks which were warned of and accepted or risks for which there was no duty to warn)(see para.76 onwards). In other words, the clinicians argued that damages could not be awarded for a risk that the patient was willing to accept. That was said to be consistent with the “information”/“advice” distinction drawn by Lord Sumption in Hughes-Holland v BPE solicitors [2017] UKSC 21 but was a narrower view than that taken by Lord Caplan in Moyes v Lothian Health Board 1990 SLT 444. This was not a point that Lord Boyd was prepared to decide without hearing evidence (as had been done in both Wallace and Moyes). He also doubted the application of Hughes-Holland to the medical setting, concluding: “I doubt that [the patient] would then see the doctor’s discussion of proposed treatments and reasonable alternatives as anything other than advice.” On the “risks” question, Lord Boyd accepted that the key question was whether the pursuer would have been prepared to accept the risk which led to her loss. If she was, her case cannot succeed. The real issue, he concluded, was whether risks are seen as cumulative (as in Moyes) or distinct (as in Wallace). That was held to be a matter for proof (see paras.89-93). So, for now, an answer to the causation consequences of Montgomery will have to await proof in this, or another, litigation.
Secondly, Lord Boyd was invited to approve the English decisions of Shaw v Kovac [2017] EWCA Civ 1028 and Diamond v RDE NHS Foundation Trust [2017] EWHC 1495, which had each held that a patient does not have a claim for breach of personal autonomy where informed consent was not obtained (i.e. a patient must still show loss in the normal way). However, during the course of the debate, the pursuers withdrew that part of their claim and those averments have been deleted by Lord Boyd. Unsurprisingly, he then refused to offer his opinion on a point that had been rendered academic in the cases before him.
Other issues
First, the manufacturers of the products argued that the actions against them should be dismissed as irrelevant. During the debate, the common law case against the manufacturer was withdrawn (para.165). That left a case based on the Consumer Protection Act 1989 and whether the products were defective within the meaning of that Act. That case has been allowed to proceed to proof. Whilst Lord Boyd expressed reservations about how the case against the manufacturers had been framed, the level of pleading required of the pursuers took account of the knowledge the manufacturers would have about their own products and given the issue of defect required a holistic approach to be taken, what was and was not relevant, and the particular weight to be placed on any one factor, was something that could only be assessed after proof. Given similar product liability cases in England and Wales have been resolved after trial (for example, and most recently, Gee and others v Depuy International Limited [2018] EWHC 1208) and, in Scotland, the Vioxx litigation has recently been allowed to proof by the Inner House (Richards v Pharmacia Ltd [2018] CSIH 31), it is perhaps unsurprising that the cases against the manufactures were allowed to proceed.
Secondly, Lord Boyd reiterated the approach to pleadings and the necessity to provide fair notice. Those rules did not change when the court was presented (as here) with a large number of cases which had a number of common features (para.30). Two particular points are worthy of note. First, he held that the Ch.42A case management powers does not convert litigation into an inquisitorial process and it remains for the pursuer to plead a relevant case. It is not for the court, through case management orders, to take a lead in identifying the issues (para.27). Secondly, in a slight innovation on the traditional approach, Lord Boyd was prepared to look at the content of the defences when considering the question of fair notice. That, he held, was consistent with the spirit of Ch.42A where parties are encouraged to make early disclose. In those circumstances, it would be wrong to ignore the content of the defences (para.31).
Finally, in each of the four lead cases limitation pleas were taken by all of the defenders. Two of those cases were held to be barred by limitation so far as the clinicians were concerned on the strength of what has been pled. The other two cases, in relation to the clinicians, require proof to determine the question of limitation. In relation to the manufactures, proof was held to be necessary in each of the cases to allow limitation to be determined. For the cases that have been held to be barred by limitation, the application of s.19A (the power to relieve a pursuer of the consequences of limitation) has yet to be determined. But perhaps the most significant aspect of the limitation discussion is Lord Boyd’s insistence that the issue turns on the particular circumstances of the particular case. In a litigation such as this (where limitation pleas have been taken in the majority of the 500 or so claims), that suggests it will be hard to resolve the cases on anything other than an individual basis.
Ampersand’s Graham Primrose, QC, Simon Bowie, QC and Paul Reid were instructed by the NHS Central Legal Office and David Stephenson, QC and Jamie Dawson were instructed by the MDDUS for the debates. Vinit Khurana is also instructed in behalf of the NHS.
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Mesh cases debate decision: [2018] CSOH 57
AH v Greater Glasgow Health Board & Johnson and Johnson;
SR v Johnson and Johnson & Lothian Health Board;
YT v Spire Healthcare, Milne & Cousin Biotech;
EN v Greater Glasgow Health Board & American Medical Systems.
Conjoined decision of Lord Boyd of Duncansby in respect of to four actions which arise out of the use of what are called vaginal mesh products in treatment of the pursuers. There are over 500 cases presently before the court arising out of the use of such products. All but 18, which have been selected as lead cases, are sisted pending the outcome of these cases. Following case management hearings held in terms of Rule of Court 42A.4 these four cases were selected for debate on the procedure roll.
Judgment here.
Ampersand Advocates involved:
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Kathryn Ferguson
Kathryn Ferguson joined Ampersand in 2018 and has completed Paralegal qualifications in both Conveyancing and Wills and Executries. Prior to joining the team Kathryn worked for a global law firm supporting the Commercial Real Estate and Litigation teams.
Kathryn brings a can-do approach and is always willing to assist in all aspects of instructing counsel.
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Top Rankings success in latest Chambers and Partners UK Bar Guide
Ampersand has again received top tier rankings across a number of areas of practice in the latest published guide to the legal profession, Chambers and Partners UK Bar Guide 2018.
Ampersand received 56 listings across 15 areas of practice, ranking as top tier (band 1) in Clinical Negligence as a Set, and band 2 in Administrative & Public law, Civil Liberties & Human Rights, Commercial Dispute Resolution, Planning & Environment, Personal Injury, Product Liability and Restructuring/Insolvency as a Set. In addition to this Aidan O’Neill QC is ranked in the London Bar Guide. 4 members are noted as “star individuals”.
Noted as a Band 1 set for Clinical Negligence, Ampersand has 18 rankings in this area. The guide says “As far as top Scottish clinical negligence practitioners are concerned, the name Ampersand is synonymous with excellence. This premier stable is acknowledged to have “the widest range of counsel in medical negligence with the broadest range of experience and knowledge.”
Band 2 listings include Administrative and Public law where Ampersand’s high-level public law challenges are noted and is described as “a good stable of advocates”. In Civil Liberties & Human Rights the Band 2 listing notes Ampersand’s “considerable expertise in the civil liberties field, drawing on their experience in employment, equality and EU law”.
In Commercial Dispute Resolution Ampersand is noted as “A highly respected stable with far-reaching experience across the commercial spectrum. It boasts an impressive roster of senior counsel and upcoming juniors, and is home to strong generalists as well as leading insolvency, shipping and real estate advocates”. Ampersand’s Commercial expertise is further noted in Restructuring and Insolvency, which includes “Star Individual” David Sellar QC, stating Ampersand “combines a renowned commercial practice with numerous high-level insolvency specialists” being described as a “go-to set for insolvency matters” and “excellent commercial stable”.
Ampersand’s Personal Injury work is again acknowledged with the guide noting “an impressive breadth of personal injury knowledge to individuals, major insurers, local authorities and other government agencies. The stable’s expertise in medical issues means it is well placed to advise pursuers and defenders on the full range of personal injury cases, including stress at work, motor accidents and clinical negligence claims. The team’s “practical approach to cases” is lauded by clients, who also comment that the advocates are “approachable, good to deal with and prompt at returning calls and emails, which is important.”. The listing includes Maria Maguire QC and Graham Primrose QC as “Star Individuals”.
Ampersand is listed in 2 new areas as a set this year. In Planning and Environment Ampersand is noted as being “A highly respected stable that is emerging as a force to be reckoned with in the arena of planning and environment law. Advocates at the stable are particularly well-versed in matters involving infrastructure and renewable energy. They are frequently instructed in major inquiries, and act for a variety of clients, including developers, promoters, objectors and decision-makers. The stable also vaunts expertise in planning appeals and judicial review proceedings.” This includes “Star Individual” Malcolm Thomson QC. Ampersand is also a Band 2 set in Product Liability stating “Ampersand Advocates enjoys an enviable reputation as one of the top-ranked sets in Scotland. It undertakes product liability work to the same excellent standard as the many other areas of the law it practices in. Members here work across a wide range of industry sectors and act for both claimants and defendants. The set has a particular reputation for handling cases that arise from the healthcare sector”.
The Clerks also receive high praise noting “The whole team is very organised.” and “their clerks are excellent, very responsive and helpful”.
Ampersand’s full listings can be viewed on the Chambers and Partners website here.
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Lauren Sutherland KC
Lauren Sutherland KC called to the bar in 1996 and took silk in 2016. Prior to calling to the Bar she was a Solicitor in private practice specialising in Personal Injury and Medical Negligence work. As a Solicitor she worked for both claimants and defending claims. Since calling to the Bar she has specialised in Clinical and Professional Negligence, Fatal Accident Inquiries, Personal Injury and Human Rights issues in Medical Law. In 2020 Lauren gained CEDR accreditation as a mediator.
Lauren runs a blog providing comment on legal cases in the area of clinical negligence and patient consent and can be viewed here.
Experience
Lauren Sutherland KC has advocacy experience gained over nearly 30 years both as a Solicitor in private practice and at the Bar. She has considerable experience in catastrophic injury cases and has a particular interest and expertise in cerebral palsy, cancer and brain injury cases. As a Solicitor she gained experience in the area of nursing practice and this continued when she called to the bar and she had responsibility to oversee the nursing section in the Vale of Leven Public Inquiry. She has also considerable experience in the area of Solicitors professional negligence.
She is currently ranked in Chambers UK and the Legal 500 for Clinical Negligence. She has consistently been ranked band 1 for Clinical Negligence.
The Directories say:
Lauren Sutherland KC is a strong silk who brings her skills to bear in the full array of clinical negligence and personal injury cases. She is adept at navigating complex causation and quantum issues and is especially knowledgeable about claims relating to cerebral palsy, brain injuries and fatal incidents. Instructing solicitors frequently praise her for her medical knowledge. (Chambers UK Bar Guide 2024)
“Lauren is very experienced and will fight hard for those she represents.”
“Lauren is my go-to senior counsel for medical negligence work. Her drive and passion for the work is immediately evident and her stamina in court is incredible to watch.”
“Lauren is a leader in the field of medical negligence and I use her on cases whenever she is available for instruction.”
Lauren brings a calm and intuitive approach whereby she can relate to clients who have suffered hardship, while maintaining a professional integrity and providing top-level advice. (Legal 500, Northern Circuit, Clinical Negligence 2024)
Lauren Sutherland QC is a strong silk who brings her skills to bear in the full array of clinical negligence and personal injury cases. She is adept at navigating complex causation and quantum issues and is especially knowledgeable about claims relating to cerebral palsy, brain injuries and fatal incidents. Instructing solicitors frequently praise her for her medical knowledge. (Chambers UK Bar Guide 2022)
“Excellent on her feet and very well prepared.” (Chambers 2021)
“She is pragmatic, great at managing expectations and very practical.” (Chambers 2021)
“She has an apparently inexhaustible energy to prepare and argue some of the most ground-breaking cases”, “A highly regarded and experienced advocate recognised for her personal injury and medical negligence experience” (Chambers 2020)
“She is absolutely superb, and she fights a client’s corner pretty fiercely… hugely knowledgeable and really applies herself“.
Lauren was junior counsel in the landmark case on Consent to medical treatment – Montgomery v Lanarkshire Health Board [2015] UKSC 11. She presented the first argument for the claimant in the Scottish Inner House and was part of the team who conducted the case in the UK Supreme Court. This case was instrumental in changing the approach to consent in the UK and has been described as one of the most significant clinical negligence cases in recent years. Lauren has published a book on Consent post Montgomery available on Amazon (see Law Brief Publishing for details).
Lauren has been involved in a number of high profile Fatal Accident Inquiries, the Nimrod litigation and is currently involved in the Product litigation involving the use of TVT and mesh in gynaecological procedures and orthopaedic product litigation.
She was appointed by the Scottish Government as junior counsel to the Vale of Leven Hospital Inquiry in October 2009. The Inquiry had a wide remit to review deaths from C difficile infection. Her involvement required extensive knowledge of care of the elderly, nursing and medical practice, and infection control in hospital.
She was invited to participate in the review panel Chaired by Professor S McLean on the issue of introduction of no fault compensation in Scotland.
Lauren was a key speaker at the Association of Breast Surgery Conference on 13th May 2019 at the SEC Glasgow where she lead the Medico-Legal case discussion on consent and practical case studies on issues of patient consent confidentiality.
In 2020 Lauren was appointed Head of Medical Negligence at PEOPIL (Pan European Organisation of Personal Injury Lawyers).
Lauren was called to the Bar of England & Wales in 2021 and joined Byrom Street Chambers in February 2022. She can accept instructions in England and Wales via her clerks at Byrom Street Chambers.
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Graham Primrose KC
Graham Primrose KC is a highly regarded silk, consistently ranked in Chambers and Partners UK Bar Guide 2019 for Personal Injury as a “Star Individual” and in Clinical Negligence.
A wide and varied civil practice with particular emphasis on reparation and clinical and professional negligence. An Ad-hoc Advocate Depute since 2008, the appointment having been renewed in 2017. Regularly instructed by high profile organisations, including several large insurance companies, the Medical and Dental Defence Union of Scotland, the Advocate General for Scotland and the National Health Service. Particular knowledge of and expertise in, cases involving air accidents, accidents aboard ships, road traffic accidents and incidents occurring on oil and gas installations.
Instructed for the partners of the pilot and co-pilot of the Super Puma Helicopter which crashed off the Scottish coast in April 2009 with the loss of all passengers and crew. The case concluded with a high-value settlement in October 2012.
Thereafter, instructed to act on behalf of the 9 surviving passengers involved in the ditching of the CHC Scotia Super Puma helicopter off Shetland on 23rd August 2013. After a 4 day mediation, these cases concluded successfully in December 2015. Appeared against a leading English aviation silk at the mediation.
Then retained to act as Senior Counsel on behalf of 10 passengers and the 2 crew who raised claims in respect of the ditching of a Bond Offshore Helicopters aircraft, ‘G-Redw’, in the North Sea on 10th May 2012. These cases concluded with settlement being reached during mid-2016. Thereafter, successfully arguing for the award of an Additional Fee on behalf of the instructing agents before Lord Brailsford, in June 2016.
Between 2018 and 2019, acted as Senior Counsel for the defenders in a case involving allegations of negligence against the owners of a light aircraft which crashed in Tayside killing the pilot and co-pilot. The case was ultimately abandoned, a robust defence having been mounted to the claims.
In October 2014 represented the interests of Aviva Insurance in the Supreme Court in the case of Elizabeth Jackson v Robert Murray 2015 S.C. (U.K.S.C.) 105, which revisited the respective duties of care of pedestrians and motorists, and considered the applicable level of contributory negligence in a case where a pedestrian suddenly moves into the path of a vehicle which was travelling at an excessive speed. The case contains useful guidance on the application of the concepts of “causal potency” and “relative blameworthiness”, the factors which a court must examine when attempting to assess the level of contribution that the conduct of the respective parties has made to the occurrence of an accident.
Appeared on behalf of Gavin Dear, a professional golfer, in the case of McMahon v Dear 2014 Rep. L.R. 71, in which the claimant, a ball spotter at a high-level golf tournament, stepped out from behind a golf cart and was struck in the eye by a ball which had just been played by Mr Dear. As a result of his injuries, the claimant lost the sight of his eye. The claim was successfully defended.
In November 2015 he represented the Advocate General for Scotland in the case of Harris v Advocate General for Scotland 2016 SLT 572, the first Scottish case on quantum of damages in a pleural plaques case in which the pursuer sought full and final, as opposed to provisional, damages.
In January 2016 he appeared on behalf of the claimant at a 2 day debate before Lord Uist in the case of Colin Taylor v Des Quigley & Others 2017 Rep L.R. 37 in which the pursuer, who was a member of a golf club, sought to establish personal liability on the part of the individual office bearers of the club in respect of a long standing defect on the premises, which had caused him injury.
June 2016 represented the defenders in a 2 day motion in the case of Katrina Shaw and Others v Wholefoods Limited, which had been scheduled to go to Jury Trial in early July 2016, and in which the pursuers’ representatives had, shortly before the hearing, lodged a substantive minute of amendment. Successfully argued that the new amendment rendered the pleadings of doubtful relevancy and, on that basis, that the jury trial should no longer proceed and, instead, that a diet of debate should be fixed to discuss the suitability of the cause for issues. The jury trial having been discharged, successfully obtained the expenses of the amendment procedure, the discharged jury trial and the 2 day motion on behalf of his clients..
This case involved an accident in which an elderly pedestrian was killed after stepping into the space between a Land Rover and a caravan, which initially had been stationery at the side of the road, but had then moved off. The case involved various claimed breaches of the Highway Code and the Construction and Use regulations, including allegations that the mirrors fitted to the Land Rover were not legal and that the vehicle combination was unsuitable for use on the public road. The case was subsequently abandoned by the pursuers
In July 2016 instructed as one of a team of senior and junior counsel retained by the National Health Service in Scotland, to defend the claims brought by women who had received synthetic polypropylene mesh implants as treatment for the symptoms of pelvic organ prolapse and stress urinary incontinence. A total of over 500 such claims were brought against the manufacturers of the products and the NHS. Insofar as the cases were directed against the National Health Service, the allegations against the doctors involved were to the effect that they failed to properly consent the patients in respect of the risks of the operations, the risks of the use of mesh and the alternative treatments available. The cases of alleged lack of consent were based on the decision of the Supreme Court in the earlier Scottish Appeal in Montgomery v Lanarkshire Health Board 2015 UKSC 11.
Following a two-week legal debate in the Court of Session before Lord Boyd in December 2017, counsel for the NHS were successful in persuading the Court that the proper application of the Montgomery test was as they had argued, and not the much wider application contended for by the pursuers’ Senior Counsel, see A.H. v Greater Glasgow Health Board & Johnson and Johnson [2018] CSOH 57.
Counsel for the NHS also succeeded in having large parts of the pursuers’ pleadings dismissed on the grounds that they were of questionable relevancy, and in having two of the four lead cases involving the NHS held to be barred by limitation (time barred). In respect of the remaining two cases, in which time bar was also argued, Lord Boyd held that they were potentially time barred, but that a hearing on the factual evidence surrounding the claims and in particular in respect of what each of the claimants knew or ought to have known regarding the connection between their injuries and the products, would be required before the limitation plea could be dealt with.
In 2018, following success at the debate for the NHS, the pursuers abandoned all 500 of their actions against the NHS doctors, and the litigation now proceeds against the various manufacturers of the mesh products alone.
In December 2016 acted for the pursuer in the case of Parkes v Caird and the MIB, in which a former Royal Marine, who had sustained catastrophic injuries whilst working as a road marker, sought damages from an uninsured driver. The case settled with the parties agreeing to enter into a Periodical Payment Order in respect of the elements of the claim relating to future care and case management.
Acted as Senior Counsel on behalf of the widows and children of all crew members aboard the RAF Nimrod Aircraft which crashed in Kandahar, Afghanistan, whilst on active service in September 2006 after suffering an in-flight fire. A substantial settlement of damages was achieved on behalf of the clients in the summer of 2010.
On behalf of the M.D.D.U.S., between 2012 and 2017 represented the interests of a consultant orthopaedic surgeon in a series of cases raised against him by a number of former patients alleging negligent performance of back operations, including operations having been performed at the wrong level of the spine, negligent placement of metalwork and inadequate recording of surgical procedures within the medical notes. Conducted the successful settlement negotiations in respect of all claims.
Appeared on behalf of the second defenders and reclaimers, a golf club, in the Inner House Appeal in the case of Phee v Gordon 2013 SC 379, a litigation involving a claimant who lost an eye as a result of a wayward golf shot. In that case the first defender, the golfer, was blamed for the accident for failing to take reasonable care to notice the presence of the pursuer on a path situated near to the tee from which he was playing off, and also for failing to appreciate that his limited golf skills were such that he could not be confident of missing the pursuer if he teed off when he was on the path. The golf club were blamed for failing to erect signs on the path where the pursuer was struck, warning golfers not use the path until those nearby had played off.
As at February 2020, retained to act as Senior Counsel in approximately 50 high-value reparation cases before the Scottish Courts. In many of these litigations damages running well into seven figures are sought. Acting on behalf of the defenders in two cases involving fatal injuries on construction sites. He acts for claimants and defenders in a number of litigations concerning road traffic injuries in which teenage passengers have sustained catastrophic injuries. These cases involve complex claims for personal care, loss of wages, case management, transport, specialist accommodation, the costs of guardianship and personal injury trusts and, in one case, the question of the significance of a pre-existing and serious co-morbidity on life expectancy.
Extensive appearance in cases involving maritime accidents, injuries aboard offshore oil installation and accidents in the North Sea diving industry.
Extensive experience and expertise in aviation cases involving light aircraft and helicopters.
Recently successfully defended the lead case in a cohort of over 20 litigations brought against the operators of a touring coach by the passengers who had been injured when the coach had overturned in high winds, see: Allen Woodhouse v Lochs and Glens Transport [2019] CSOH 105, a decision of Lord Glennie.
Most recent High Court Trial Prosecuted – Glasgow High Court January 2018 Attempted Murder – Conviction secured before Lord Armstrong and a jury.
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