Mitchell & Anor (APS) v Glasgow City Council [2008] ScotCS CSIH_19 (29 February 2008)

Mitchell & Anor (APS) v Glasgow City Council [2008] ScotCS CSIH_19 (29 February 2008)

The pleadings disclose sufficient material to allow a proof before answer on whether the defenders, by their actions, assumed responsibility for the deceased's safety and thus owed a duty of care in respect of warning about the meeting with Drummond. The claim based on failure to instigate eviction proceedings is excluded as it concerns a discretionary statutory function. The Article 2 ECHR claim does not meet the threshold for a real and immediate risk to life on the pleadings. The action should not have been dismissed in its entirety without hearing evidence.

Citation
[2008] ScotCS CSIH_19
Parties
Pursuer and Reclaimer: Anne Mitchell; Pursuer and Reclaimer: Karin Mitchell (Assisted Person); Defender and Respondent: Glasgow City Council
Jurisdiction
Scotland
Judgment Date
29 February 2008
Procedural Posture
Reclaiming Motion (appeal) in Civil Action for Damages / Appeal Against Dismissal After Debate (pleadings Stage, No Proof Before Answer)
Outcome
Appeal allowed in part; action reinstated for proof before answer on limited grounds; averments regarding duty to instigate eviction excluded from probation.
Legal Topics
Duty of Care, Negligence, Liability for Acts of Third Parties, Article 2 ECHR (right to Life), Assumption of Responsibility, Statutory Powers of Local Authorities
Tort/delict Human Rights Landlord and Tenant Law Public Law Duty of Care Negligence Liability for Acts of Third Parties Article 2 ECHR (right to Life) +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 17 Party arguments 2
Sign in to unlock

Parties

Anne Mitchell

Pursuer and Reclaimer

Karin Mitchell (Assisted Person)

Pursuer and Reclaimer

Glasgow City Council

Defender and Respondent

Procedural Posture

Reclaiming Motion (appeal) in Civil Action for Damages / Appeal Against Dismissal After Debate (pleadings Stage, No Proof Before Answer)

Legal Issues

  1. 1 Whether a local authority landlord owes a duty of care at common law to protect a tenant from the criminal acts of another tenant
  2. 2 Whether the local authority's failure to warn or act constituted a breach of Article 2 ECHR (right to life)
  3. 3 Whether the facts pleaded are sufficient to allow the case to proceed to proof (trial)

Ratio Decidendi

The pleadings disclose sufficient material to allow a proof before answer on whether the defenders, by their actions, assumed responsibility for the deceased's safety and thus owed a duty of care in respect of warning about the meeting with Drummond. The claim based on failure to instigate eviction proceedings is excluded as it concerns a discretionary statutory function. The Article 2 ECHR claim does not meet the threshold for a real and immediate risk to life on the pleadings. The action should not have been dismissed in its entirety without hearing evidence.

Court Disposition

Appeal allowed in part; action reinstated for proof before answer on limited grounds; averments regarding duty to instigate eviction excluded from probation.

Orders

  • Allow proof before answer on the issue of duty to warn the deceased and police about the meeting with Drummond.
  • Exclude from probation averments relating to duty to instigate eviction proceedings by October 1999.