McGibbon v. McAllister [2008] ScotCS CSOH_4 (11 January 2008)

McGibbon v. McAllister [2008] ScotCS CSOH_4 (11 January 2008)

The ordinary reading of 'parent' in the Damages (Scotland) Act 1976 excludes the pursuer, but this exclusion, based solely on marital status, is discriminatory under Articles 8 and 14 ECHR. It is possible and necessary to interpret 'parent' in a Convention-compatible way to include someone who, as a matter of fact, fulfilled the roles usually associated with parenthood. The pursuer's averments are sufficient to allow proof before answer.

Citation
[2008] ScotCS CSOH_4
Parties
Pursuer: Paul McGibbon; Defender: Graeme McAllister
Jurisdiction
Scotland
Judgment Date
11 January 2008
Procedural Posture
Civil (damages for Wrongful Death) / Procedure Roll (preliminary Issue on Title to Sue)
Outcome
Proof before answer allowed; action not dismissed.
Legal Topics
Title to Sue, Definition of Parent, Discrimination Based on Marital Status, Interpretation of Damages (scotland) Act 1976, Application of Human Rights Act 1998, Articles 8 and 14 ECHR
Civil Law Damages Family Law Human Rights Title to Sue Definition of Parent Discrimination Based on Marital Status Interpretation of Damages (scotland) Act 1976 +2 more

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Parties

Paul McGibbon

Pursuer

Graeme McAllister

Defender

Procedural Posture

Civil (damages for Wrongful Death) / Procedure Roll (preliminary Issue on Title to Sue)

Legal Issues

  1. 1 Whether the pursuer qualifies as a 'parent' under Schedule 1, paragraph 1(b) of the Damages (Scotland) Act 1976 as amended at the relevant date
  2. 2 Whether exclusion of the pursuer based on marital status is discriminatory under Articles 8 and 14 ECHR
  3. 3 Whether the statute can be interpreted compatibly with Convention rights to include the pursuer

Ratio Decidendi

The ordinary reading of 'parent' in the Damages (Scotland) Act 1976 excludes the pursuer, but this exclusion, based solely on marital status, is discriminatory under Articles 8 and 14 ECHR. It is possible and necessary to interpret 'parent' in a Convention-compatible way to include someone who, as a matter of fact, fulfilled the roles usually associated with parenthood. The pursuer's averments are sufficient to allow proof before answer.

Court Disposition

Proof before answer allowed; action not dismissed.

Orders

  • Allow proof before answer on the pursuer's title to sue.
  • Reserve all questions of expenses.