[New search]
[Printable PDF version]
[Help]
OUTER HOUSE, COURT OF SESSION
[2025] CSOH 12
P683/24
OPINION OF LADY WISE
In the Petition of
GREATER GLASGOW HEALTH BOARD
Petitioner
for
JUDICIAL REVIEW
against
THE RIGHT HONOURABLE LORD BRODIE KC PC, CHAIRMAN OF THE SCOTTISH
HOSPITALS INQUIRY
Respondent
and
DR PENELOPE REDDING; DR CHRISTINE PETERS AND DR TERESA INKSTER
Interested Parties
Petitioner: Dean of Faculty KC, Toner; NHS Central Legal Office
Respondent: MacGregor KC, Breen; Balfour + Manson LLP
Interested Parties: Reid KC; MDDUS
4 February 2025
Introduction
[1]
This petition for judicial review raises a point about the application of the principle
of fairness to an inquisitorial process. It concerns a decision of the Chair of the Scottish
Hospitals Inquiry dated 1 August 2024 refusing an application by Greater Glasgow Health
Board to have an expert report received into evidence and to hear from its authors.
2
[2]
The Scottish Hospitals Inquiry was established under the Inquiries Act 2005 to
consider the planning, design, construction, commissioning and maintenance of inter alia the
Queen Elizabeth University Hospital and the Royal Hospital for Children, Glasgow. The
relevant focus of the Inquiry is to determine whether issues relating to ventilation and water
adversely impacted on patient safety and care and whether the QEUH is or was "unsafe".
The term unsafe has been defined by the Inquiry as "present[ing] an additional risk of
avoidable infection to patients".
[3]
The Inquiry has held hearings in tranches. The first of these, "Glasgow I", reviewed
the evidence and material involving patients and families. "Glasgow II" considered
evidence from treating clinicians. This petition challenges a decision made during
"Glasgow III". The Glasgow III phase has heard evidence from clinicians, members of the
petitioner's management and estate teams and independent experts. Its focus is, inter alia,
whether the ventilation and water systems in the QEUH are or were unsafe. The evidence
stage of Glasgow III concluded on 13 November 2024 and a submissions hearing for that
tranche is due to take place between 11 and 13 March 2025. It is anticipated that a fourth
phase, Glasgow IV, will be held from the end of April to the end of May 2025 when all
remaining evidence necessary for the Inquiry to address its remit and terms of reference will
be heard.
[4]
To date, the Inquiry has appointed six expert witnesses, all of whom gave evidence
during Glasgow III. The tenor of all six experts was to the effect that the ventilation and
water systems at QEUH posed an increased risk of avoidable infections to patients and
accordingly were "unsafe". Greater Glasgow Health Board, which owns and operates the
QEUH is a designated core participant in the Inquiry. The Board and some of its estates and
management teams have been criticised by witnesses during the evidence in all three
3
tranches of evidence to date. It denies allegations made against it during the Inquiry,
including that there has been an institutional effort to conceal any environmental link with
infections and that organisational reputation has been prioritised over patient safety. Many
members of the Health Board's staff have given detailed witness statements on matters of
fact and been subjected to examination in evidence.
[5]
The present challenge relates to an independent expert report from three individuals,
Professor Hawkey, a Dr Agrawal and a Dr Drumwright. It was instructed by the petitioner
and finalised on 25 July 2024. The report addresses the core issue of the risk of infection
from the water and ventilation systems at the two hospitals. It is accepted in these
proceedings that each of the authors of the report is a recognised expert in their respective
fields which are, in summary, bacteriology, haematology and clinical informatics.
[6]
Greater Glasgow Health Board applied to the Chair of the Inquiry to have the report
by these experts considered as part of the evidence at Glasgow III and for its authors to be
called to give oral evidence. A number of core participants opposed the Board's motion,
which led to a hearing after which the Chair made the decision of 1 August 2024 to refuse it.
The decision under challenge
[7]
The Chair's decision and reasons for refusal of the petitioner's application runs to
22 pages. The introduction sets out some of the background and the terms of the Health
Board's application that the independent expert report be included in the hearing bundles
for Glasgow III and that the three named experts be called to give evidence. Reference is
made to the terms of the letters of instruction sent to the experts and the fact that the
instruction to the first two experts had been requested so that those advising the Health
Board could provide advice in respect of the associated police investigation, the Inquiry, and
4
a defence to civil claims. The contents of the report are summarised between paragraphs 18
and 25 and the submissions made by counsel between paragraphs 26 and 52. The decision
and reasons are set out between paragraphs 53 and 62 in the following terms:
"53.
For inter-related reasons of principle and practicality, I have decided to refuse
Mr Gray's motion and therefore the Inquiry will not consider the GGC Report as part
of the evidence to be led at Glasgow III and will not call the authors of the GGC
Report as witnesses.
54.
I have already described the GGC Report and the circumstances in which it
has come into existence. It should not be inferred from that description or anything I
have to add that I have come to any view whatsoever as to the soundness or
otherwise of its contents and apparent conclusions; I am not in a position to do so
and I have not done so. Nor should it be inferred that I am in any way questioning
the integrity, professionalism or good faith of its authors or those who instructed
them. Mr Gray specifically stated that there was no question as to the impartiality of
the experts instructed by NHS GGC and no question of them having been invited to
adopt any position. For present purposes I accept that. The fact remains that the
authors of the GGC Report were instructed by NHS GGC's legal advisers (CLO) in
order for CLO to provide legal advice to NHS GGC in respect of the Inquiry, and
also in respect of a police investigation and the defence to civil claims. The GGC
Report was therefore a piece of work commissioned on behalf of NHS GGC for NHS
GGC's purposes, entirely legitimate as these purposes may be, but with all the
natural consequences of that. NHS GGC and its advisers had control over choice of
author, scope of the work, the extent of information provided, and the use made of
the eventual product. In short, the GGC Report is an NHS GGC document. In his
submission Mr Gray characterised the terms of GGC Report as being to `restore some
degree of balance' in the face of the criticisms made by the Inquiry's Expert Reports.
That is to confirm its purpose is thus to advance an argument or arguments in favour
of the position taken by NHS GGC in its Positioning Paper, and more generally. The
GGC Report is an advocacy document prepared for a single core participant.
55.
The GGC Report is also a very substantial document. I accept what was said
by Counsel to the Inquiry and the representatives of core participants about what
would be required properly to understand and evaluate it. National Services
Scotland (NSS) have assessed that task as requiring five weeks for a team that is
already assembled. Nothing in what was said about this by the legal representatives
of the other core participants was challenged on behalf of NHS GGC.
56.
At risk of repetition, I imply no criticism of what NHS GGC and its advisers
have done, subject only to the qualification that the GGC Report must be seen for
what it is and treated accordingly. I proceed on the basis that the GGC Report would
be admissible as an expert report in adversarial court proceedings with a view to it
being referred to and the authors led as witnesses by legal representatives acting for
NHS GGC. However, the Inquiry is not a court. Its proceedings are not adversarial.
5
It is not proposed that its authors be led by NHS GGC's legal representatives; that
responsibility is to be left with Counsel to the Inquiry.
57.
In adversarial proceedings, whether civil or criminal, it is for the parties to
determine what evidence goes before the factfinder (the judge or the jury), subject
only to that evidence being relevant to the matters of fact in issue. Moreover, it is for
the parties to protect and advance their respective positions. While the judge has a
duty to attempt to ensure that the procedure adopted is efficient and fair, that duty is
informed by an expectation that parties have a responsibility to look after their own
interests but only a very limited responsibility to look after other parties' interests.
Thus, adversarial proceedings are of the nature of a contest in which all the parties
are entitled to put such relevant evidence before the court as they wish. The court is
bound to hear that competing evidence and make its decision solely on the basis of
that evidence.
58.
As Ms Connelly succinctly explained in her written and oral submissions, the
procedure of inquiries under the 2005 Act, and in particular this Inquiry, is not
intended to be adversarial; it is inquisitorial. Ms Connelly cited what had been said
by Lord Saville in making his opening statement to the Bloody Sunday Inquiry as
illustrating the difference between an inquisitorial approach to be taken in an inquiry
and an adversarial approach such as taken in litigation: `An Inquiry like the present
Inquiry is quite different. Here the Tribunal takes the initiative in trying to ascertain
the truth. Unlike an adversarial contest, it is for the Tribunal to seek all the relevant
material. Its task is not to decide the matter in favour of one party or side or another.
Indeed, from the point of view of the Tribunal, there are no parties or sides. There
will, of course, be those who have material evidence to give or who have a legitimate
interest in challenging such evidence, but the Tribunal will not treat them as sides or
parties in an adversarial contest, but rather as a means of seeking out the truth.
(Volume X, A2.1 Opening Statement of the Tribunal (3rd April 1998) p.45).'
59.
It was Ms Connelly's submission that to admit the GGC Report as part of the
evidence to be considered by the Inquiry would be to make a fundamental change in
the procedure adopted from an inquisitorial method to an adversarial method, with
the consequence that fairness would require that what had been allowed to
NHS GGC should be allowed to other core participants and all that would follow
from that. I understood Ms Watts and Mr Love to associate themselves with
Ms Connelly's submission. I heard nothing to contrary effect.
60.
I accept Ms Connelly's reference to what was said by Lord Saville as entirely
apposite and I accept her submission that to allow the GGC Report to become part of
the evidence to the Inquiry would be to abandon the inquisitorial procedure
controlled by the chair, which the Inquiry has adopted until now, and turn it into
something like an adversarial litigation. I would see that as entirely inconsistent
with my duties in terms of section 17 of the 2005 Act.
61.
While what I require to decide can be resolved at the level of principle, the
inevitable consequences of admitting the GGC Report narrated by Counsel to the
6
Inquiry and the legal representatives of core participants and not disputed by
counsel for NHS GGC and which I accept would arise, underline why it should not
be admitted. Put short, it would mean not being able to conduct a Glasgow III
hearing beginning on 19 August 2024 which met the requirements of procedural
fairness. That is something which should be avoided.
62.
Counsel to the Inquiry and legal representatives of core participants made
criticisms of the conduct of NHS GGC in this matter which Mr Gray was eager to
refute. It is not necessary for my decision to express any view on what was said and
I do not do so. I simply welcome Mr Gray's reaffirmation of NHS GGC's wish to
adopt a wholly collaborative approach in its engagement with the Inquiry."
Submissions for the petitioner
[8]
The decision of 1 August 2024 was irrational et separatim unfair. A declarator to that
effect should be granted and the decision reduced. Any discretion afforded to the Chair of
an Inquiry is subject to the duty of fairness R (Associated Newspapers Limited) v The Right
fairness of any decision in a Public Inquiry was ultimately for the court's
determination R v Lord Saville of Newdigate [2000] 1 WLR 1855 at para [38] and Leveson
supra at paragraph 47. It had been noted in Leveson that a duty of fairness does not exist in a
vacuum and is in that respect like a duty of care. The starting point for any consideration of
a Chair's duty of fairness is the task which he was appointed to perform under his terms of
reference Leveson at para [35].
[9]
The report that had been the subject of the application fell squarely within the terms
of reference, which included an examination of the issues in relation to the adequacy of
ventilation, water contamination and other matters adversely impacting on patient safety
and care arising in the construction and delivery of the QEUH. The terms of reference also
included an examination of what actions have been taken to remedy defects and the extent
to which those have been adequate and effective. The position of Greater Glasgow Health
7
Board was significant. It treats a large number of patients on a daily basis. Its
haemato-oncology wards treat the most clinically vulnerable patients in Scotland. The Royal
Hospital for Children in Glasgow is a national centre for paediatric haemato-oncology
treatment in which world leading experts care for a particularly vulnerable patient cohort. It
is critical that public trust in the relevant hospitals and clinicians is maintained and the duty
of the Health Board to its staff includes ensuring that their version of events was fully heard
together with any relevant supporting (expert) evidence. Public confidence would be
significantly undermined in the event that the Inquiry made any adverse comment about the
safety of the QEUH. It was not just desirable but necessary for the Inquiry to have access to
a range of views before making any such comment or criticism.
[10]
As all of the experts appointed by the Inquiry had been critical of the Health Board,
fairness demanded that where contradictory evidence was available it should be heard.
While the Health Board had provided a detailed critique of all of the Inquiry's expert reports
that was of limited utility without the alternative analysis presented by the three experts
who had prepared the report. In essence, the report concludes, supported by significant
data analysis and comparisons with other Glasgow hospitals, that the QEUH did not create
any additional risk to patients. If the decision of 1 August was allowed to stand, the Inquiry
would not hear highly pertinent evidence in relation to the safety of the hospital, which may
result either in the petitioner receiving significant unjustified criticism or in the Inquiry
Chair being unable to make any proper recommendation.
[11]
It was accepted that in terms of section 17(1) of the Inquiries Act 2005 the procedure
of the Inquiry is such as the Chair may direct. However, that discretion was fettered by an
important provision in section 17(3) providing that the Chair is obliged to act with fairness.
The requirements of natural justice continue to apply to an inquisitorial process. That is
8
supported by the duty embodied in section 17(3). Those requirements were summarised in
this context by the judicial committee of the privy council in Mahon v Air NZ [1984] AC 808.
They include that an Inquiry Chair must listen fairly to any relevant evidence and rational
argument that a person represented at the Inquiry and whose interest may be adversely
affected by its findings may wish to place before him. Such a person must not be left in the
dark as to the risk of an adverse finding being made, as that would deprive that person of an
opportunity to "adduce additional material of probative value which, had it been placed
before the decision maker, might have deterred him from making the finding..." Mahon v
Air NZ at 820. The court was there relying on the decision of the Court of Appeal in Reg v
Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 QB 456.
[12]
The requirement to observe the rules of natural justice applies to both adversarial
and inquisitorial procedure F Hoffmann-La Roche and Co A.G. v Secretary of State for Trade
and Industry [1975] A.C. 295 at 368. Further, fairness is not an invariable or fixed matter and
will be intensely fact dependant R v Secretary of State for the Home Department Ex parte
Doody [1994] 1 AC 531. It was also emphasised in Associated Newspapers v Leveson (at
paragraph 53) that it is of the greatest importance that the Inquiry should be, and should be
seen by the public to be, as thorough and balanced as is practically possible.
[13]
While the Health Board had been afforded an opportunity, albeit limited, to submit
questions to counsel to the Inquiry by way of Rule 9 of the Inquiry's process, those questions
were necessarily in the abstract and of limited utility. The inability to put any alternative
independent analysis to the witnesses such as that in the report, resulted in unfairness. The
questions arising for the Inquiry's determination and which are considered in the report, are
questions of a technical or scientific nature. Accordingly it was essential for the Inquiry to
hear expert or skilled evidence before deciding thereon Walker and Walker on
9
Evidence (5th Ed), at 16.3.19, citing inter alia Connelly v HMA Advocate 1990 JC 349,
The "Nerano" v The "Dromedary" [1895] 22 R 237 and United States Shipping Board v The Ship
St Albans [1931] AC 632. In consequence of the Chair's decision of 1 August 2024, the
Inquiry is faced with matters which require skilled evidence in order to be determined, yet
the only skilled evidence permitted is "all one way", the Inquiry having deliberately
excluded from consideration skilled evidence pointing in another direction. That was
plainly unfair. The ability of the Chair himself, absent a contradictor, to discount the skilled
evidence that has been led would be limited. He could do so only where that evidence
simply did not stand up to rational analysis Honisz v Lothian Health Board 2008 SC 235 at
paragraph 39, or where it was mere ipse dixit or based on an incomplete understanding of
[14]
Many of the authorities relied on by the respondent related to applications to limit
the evidence available to an Inquiry either through anonymity or confidentiality. The
present case was different in that the petitioner did not seek to exclude evidence but to
present an additional independent analysis that would assist the respondent in addressing
the terms of reference. The report utilised comparator data from other hospitals, both
in-patient and out-patient, and reached the conclusion that there was no increased risk of
infection. Such a conclusion went to the heart of the issues of whether the hospital was safe
and whether there was any need for public concern in relation to risk. At the very least it
would be rational to consider that evidence and use it to test the conclusions of the Inquiry's
appointed experts. It was unfair and irrational to exclude it.
[15]
Insofar as the other parties suggest that the decision of 1 August was limited to the
Glasgow III tranche of hearings such that the petition was academic, that position was
plainly flawed. When these proceedings were raised, the petitioner relied on the terms of
10
Inquiry Direction 5, which provided that the respondent intended to issue an interim report
following the Glasgow III hearings, including conclusions and recommendations in respect
of the safety of the hospital. On 25 October 2024 the respondent issued Direction 8, stating
that the Inquiry no longer intended to issue an interim report. Accordingly, as no
recommendation in respect of safety will be made until after the fourth tranche of hearings
the matter was not academic. A plain reading of the decision, in particular at paragraph 61,
indicated that it was based on principle and so amounted to a refusal to admit the report
into evidence at all. The Inquiry Chair could not retract a decision based on principle.
[16]
The circumstances in which the court will refuse to entertain an academic question
were explored in Wightman v Secretary of State for exiting the European Union 2019 SC 111.
There the Lord President (Carloway) explained, at paragraph 21, that the default position
was that "anyone who wishes to do so can apply to the court to determine what the law is in
a given situation" and "the court must issue that determination publicly". Thus the
exception to the general position that the court does not answer academic questions is one of
practicality. Where there is no petitionary conclusion the litigation must be capable of
achieving some practical result. In the present case as the decision was one based on
principle, namely that the proceedings were inquisitorial and admitting the report would
render those proceedings adversarial, there was a live practical question. The decision
should be declared unlawful and reduced.
Submissions for the respondent
[17]
The focus should be on the specific question asked of the respondent and the specific
answer provided. The application made had been to include the expert report in the hearing
bundles for Glasgow III and call its authors to give evidence in that tranche of proceedings.
11
The application had been made less than one month from the start of a 12 week evidential
hearing. The report in question ran to over 200 pages and the application was tantamount to
a demand that it be included and the witnesses called. It was accordingly unsurprising that
as a matter of both principle and practicality the Chair refused the application.
[18]
It was noteworthy that the petitioner's focus had been exclusively on the question of
principle and an effective concession that the petition would not have been raised had the
matter been decided purely as an exercise of the broad discretion available to the
respondent. The decision on practicality still stood and there was nothing to indicate that
the respondent had been in error in that regard. The subsequent issue of Directions 8 and 9
was relevant. Direction 8 provides a complete answer to the petitioner's challenge of
fundamental unfairness on the basis that findings could be made without any opportunity
to challenge the substance. Direction 9 provides that all core participants will be afforded
the opportunity to highlight any issues, alleged gaps in evidence and advance arguments to
challenge any evidence led. It was wrong to contend that findings would be made without
the opportunity for comment or contradiction. Direction 9 also alerts parties that they will
be able to make an application in the context of Glasgow IV to include any evidence they
contend is relevant. It was clear from correspondence that at one stage the petitioner's side
had suggested that the report could just be admitted for Glasgow IV but then without
explanation that was not pursued and these proceedings were raised. What the petitioner
was seeking to do was render this court the primary decision maker in relation to a proposal
made and withdrawn.
[19]
It was accepted that the discretion of the Chair in the application that had been
before him was not unfettered section 17(3) of the 2005 Act and the decisions in Ex Parte
Moore and Mahon v Air NZ. It was clear that a party must be given an opportunity to
12
contradict evidence led. However, those opportunities still exist in the Inquiry such that fair
procedure will be ensured. The respondent had not barred himself in all time coming from
admitting the report under consideration. In any event no submission had been made to
him at the time that it was fundamentally unfair to determine the matter as one of principle.
[20]
While there was no dispute about the application of legal principle, there was a need
to focus on what the Chair had been asked to address and the specific issue under
review Cabinet Office v UK Covid Inquiry [2024] KB 319. That case involved Notices under
section 21 of the 2005 Act seeking to recover the WhatsApp messages of Boris Johnson, as
Prime Minister during the pandemic. The court emphasised that an Inquiry does not
determine issues between parties to a civil or criminal litigation but conducts a thorough
investigation and has to follow leads rather than being bound by the rules of evidence
(para [52]). It was not for parties to dictate to the Chair what is and is not relevant. While
the expert report that had been tendered on behalf of the petitioner was relevant to the task
of the Inquiry and the experts were on the face of it qualified to undertake the task they had
been set, their instructions had come from one core participant. Those instructions were
apparently for the combined purposes of a criminal investigation, civil proceedings and the
Inquiry itself. The point had been made by the respondent in his decision that the report
was effectively an advocacy document. In any event the data set underlying the authors'
conclusions was still missing. There was no attempt to impugn the independence of these
experts but they had been answering questions posed by their clients and not by the Inquiry.
[21]
The petitioner had conceded that the Inquiry Chair had a broad discretion in relation
to applications of the kind under dispute here. It could not be said that the only fair
outcome was to allow the report to be lodged as there were other ways of including any
relevant material. The stage of the Inquiry at which the application had been made was
13
highly relevant. The application had been restricted to the Glasgow III stage and the Inquiry
would be moving to Glasgow IV when any further application could be considered. It
would only be at the end of the Inquiry that a core participant such as the petitioner could
contend that the respondent had failed to "hear the full story" in relation to relevant
evidence.
[22]
Fairness was an all-encompassing concept and the Inquiry Chair had required to
consider the interests of a number of participants. There was nothing new or novel about
the Inquiry instructing its own experts. That was standard practice and supported in the
leading text "The Practical Guide to Public Inquiries" (Hart, 2020, at p 231). It was relatively
rare for core participants to be permitted to instruct their own expert witnesses to give
evidence, although they may be afforded the opportunity to comment on an intended expert
appointment by the Inquiry. Accordingly, it was for the Inquiry Chair to decide what
documents and evidence were to be heard and it was contrary to accepted procedure that
core participants could force any lines of inquiry upon him. Fairness did not require the
type and level of participation rights for which the petitioner contended. Far from being
silenced, the petitioner had taken the opportunity to make trenchant criticisms of the Inquiry
experts. It will have the further opportunity of making submissions on the evidence given
by those experts. It was consistent with Ex parte Moore and Mohan v Air NZ that what a
party must be given is an opportunity to comment or contradict evidence on issues with
which it disagrees. The difference between the parties in this case is that the respondent
contends that the petitioner has and will continue to have such opportunities such that in
the round a fair procedure will have been adopted.
[23]
The decision of the respondent should not be interpreted in the manner suggested on
behalf of the petitioner. At paragraph 53 the reference to "inter-related reasons of principle
14
and practicality" could be taken as meaning that both reasons would have to be wrong
before there could be interference with the decision. While paragraph 61 does state that the
argument can be resolved at the level of principle (that to allow the report to be part of the
evidence would be to abandon the inquisitorial procedure) the respondent had gone on to
deal with the practical reasons to refuse it. Paragraph 61 should be interpreted as the
respondent stating "esto I am wrong on the issue of principle, it would nonetheless be
impracticable to allow the report to be lodged and so I exercise my discretion not to allow
it". Absent a standalone legitimate expectation argument that would be enough to dispose
of the petition.
[24]
The circumstances in which the court might answer questions that may seem
academic was summarised in BBC v Scottish Child Abuse Inquiry Chair 2022 SC 184 at
paras [35] [38]. In the present case the issue came to be one of remedy. In order to
succeed, the petitioner would have to persuade the court that it could not now have a fair
hearing. That could not be so as Direction 9 made clear that the application could be made
of new. It would be sterile to reduce the decision when it was already known that the same
motion could be made. The respondent had lodged the relevant correspondence and
Directions 8 and 9, clarifying that there would be scope for seeking that additional evidence
be led and that no findings in fact would be made until hearings were completed. It had
clearly been the petitioner's original intention to make a fresh application but that had now
been abandoned. As the Chair was open to a fresh application there was no practical
purpose to be served by the petition. It was an attempt to interfere with a decision that had
been made and implemented but where there was scope for a fresh decision. If any new
application was made, the respondent would decide what should happen next in terms of
whether the Inquiry should commission further expert reports, hear from the experts
15
instructed by the petitioner or refuse the application. It was not for the court to micro
manage the inordinately difficult task faced by the Inquiry Chair. The key point was that
there were other ways of resolving the situation.
Submissions for the interested parties
[25]
The interested parties, the "whistle-blowers" who had all worked for the petitioner
were also core participants in the Inquiry. Each gave evidence during Glasgow III. They too
had opposed the petitioner's application to have an expert report included and its authors
called to give evidence. Insofar as the petitioner's approach seemed to be that the
relationship between the petitioner and the respondent was a purely bilateral one that was
wrong. There were others with interests and the petitioner was just one of a number of core
participants. The interested parties contend that the decision made was a reasonable one
and within the exercise of the Chair's discretion. It would have been irrational to receive the
report in question unless the hearings were discharged. That had been the context in which
the application was made. It might have been different had the petitioner made an
application to admit the report and call the witnesses but not under reference to the
Glasgow III phase.
[26]
The present proceedings had been conducted by the petitioner in a leisurely manner.
Even if the argument on their behalf was well founded the remedy should be refused. They
had not sought urgent consideration and the evidential stage of Glasgow III had taken place
prior to the substantive hearing. The case was squarely in the territory of there being no
practical consequences arising from success as outlined in Conway v Secretary of State for
Scotland 1996 SLT 689 at 690. What the petitioner was seeking was effectively a reduction of
an outstanding and undetermined application to admit a report and call witnesses to a
16
tranche of hearings which have come and gone. To the extent that the petitioner also sought
a declarator, the terms of that remained unclear. Accordingly the petition should simply be
refused in the absence of any practical consequences arising from success. If the petitioner
was correct on the issue of principle that there had been an error of law in relation to
whether allowing the report would result in abandonment of the inquisitorial process, the
respondent would have the benefit of the Opinion of the Court in dealing with any
subsequent application.
[27]
It could not possibly be fair to expect the other core participants, such as the
interested parties, to have dealt with the expert report under discussion at hearings that
were about to commence. The report cited many dozens of papers several of which had
been written by the interested parties. The conclusions expressed therein would clearly
affect the interested parties as core participants and they would have to be afforded the
opportunity to take a view on those.
[28]
Under reference to the decision in Ex parte Moore the situation here was analogous. If
the decision of principle was an error of law there was an alternative reason for refusal of
the application that was not tainted by the same error. The situation in Mahon v Air NZ was
different. Their problems had arisen from the piecemeal disclosure of evidence. In the
present case the petitioners have been participants and know the argument against them.
Their position has been that the argument against them is fundamentally flawed and there is
no longer any argument that they have not been given advance notice of evidence. The
absence of the underlying data on which all of the conclusions in the report are based should
be taken into account. While it is said that this data can be immediately produced if the
report is allowed one would need to consider that data in assessing whether it was relevant
and material. It is not yet known whether the refusal to allow the report and associated
17
evidence has resulted in unfairness. The Inquiry experts have not yet had an opportunity to
examine the report and the underlying data. In any event, the petitioner's experts would not
require to rely on their report to challenge or undermine the suggestion that the hospital was
unsafe. Irrational analysis of the evidence led would not require separate expert evidence.
Of course the expert evidence led was complicated but it was for the Chair to decide what
else was required not the experts. The question of fairness extended not just to all
participants but also to the public interest in the time taken with the Inquiry and its cost.
[29]
Notwithstanding the use of the word "underline" in paragraph 61, the practicality
reason was an independent one and was sufficient to allow the decision to stand. If that was
wrong and the court was persuaded that there was a material error on the point of principle,
the fact that there were separate good reasons based on practicality was sufficient to justify
refusal of the introduction of the report at the time and so refusal of this petition.
Decision
[30]
It is important to acknowledge the wide discretion bestowed on the Chair of any
Inquiry operating under the Inquiries Act 2005. The procedure is designed to be flexible and
inquisitorial in nature. The Chair has considerable scope to determine the nature and extent
of the evidence received and witnesses led. He takes the initiative in the search for truth.
The parameters of the Inquiry's work are framed by its terms of reference. The present
dispute is concerned with a decision about evidence relating to a central question for the
Inquiry, namely the safety or otherwise of the Queen Elizabeth University Hospital. When
the decision challenged was made on 1 August 2024, the expectation was that conclusions
on that issue would be made in the Glasgow III phase of the Inquiry.
18
[31]
Standing the wide discretion available to the Chair on procedural and evidential
matters, the parties agree that, had the decision of 1 August been made exclusively in the
proper exercise of discretion, it would be effectively unassailable. However, the dispute
relates to the consequences of the issue of principle described in the decision. That issue was
encapsulated in the submission by counsel for two of the families who are core participants.
It was that to allow the report tendered by the Health Board to become part of the evidence
to the Inquiry "... would be to abandon the inquisitorial procedure controlled by the
chair....and turn it into something like an adversarial litigation". The Chair accepted that
submission and recorded that he was able to resolve the issue before him at the level of
principle. He added that the practical difficulties that would inevitably arise, which would
prevent the Glasgow III hearings commencing on 19 August 2024, underlined the reason for
not admitting the evidence.
[32]
While there is reference in the decision to the report being an "advocacy document",
this related only to the nature of the original instruction. It was no part of the arguments for
the respondent and the interested parties that the authors of the report had failed in their
duties as experts and were advocating for a participant. I have proceeded on the basis that
those authors and proposed witnesses are skilled professionals who are qualified to give
independent opinion evidence that would assist the Inquiry.
[33]
There is no support in the authorities for the proposition that receiving evidence
tendered by a core participant to an Inquiry would alter the form of procedure from
inquisitorial to adversarial. The parties agree that the fundamental principles of natural
justice apply to Inquiry proceedings. Fairness is a substantive requirement applicable to
both adversarial and inquisitorial hearings. It includes the obligation, by those exercising an
investigative jurisdiction, to listen to any relevant argument and evidence that may conflict
19
with a possible or proposed finding, "...that a person represented at the inquiry, whose
interests (including in that terms career or reputation) may be adversely affected, may wish
to place before him" Mahon v Air New Zealand Ltd and Others [1984] AC 808, at 820. The
requirement to hear both sides, traditionally expressed by the maxim audi alteram partem,
requires to be followed by those exercising an investigative jurisdiction, such that principal
parties must be able to contradict any information obtained Reg v Deputy Industrial Injuries'
Commissioner, ex parte Moore [1965] 1 Q.B. 456. In its application to modern statutory
Inquires, fairness demands that they be "and be seen by the public to be, as thorough and
balanced as possible" R (Associated Newspapers Limited) v The Right Hon Lord Justice
evidence on the core issues. Once it is known that there is expert evidence on technical and
scientific matters available, the conclusions of which are contradictory to that led to date by
Inquiry experts, it is difficult to regard its complete exclusion from consideration could be
fair.
[34]
Application of the principle of fairness will not always require allowing an Inquiry
participant to have evidence tendered by them heard. Much depends on the context. It is
not inconsistent with the principle of fairness that norms of procedure will be adopted that
may generally discourage core participants from submitting their own expert evidence.
A challenge of this type cannot be brought on the basis of disagreement with the Chair's
conclusion on such matters - R (on the application of EA) v Chairman of the Manchester Arena
however, the application presented was by a core participant for whom the risks, including
loss of public confidence, are incalculable in a situation where the expert evidence adduced
to date had all been to the same effect. The existence of contradictory expert evidence
20
should have been regarded as a significant development when considering the need for
balance, albeit that it would have caused unpalatable disruption to planned hearings for it to
be heard within Glasgow III, a point to which I will return. It is sufficient to record that,
given the complexity and magnitude of the safety issue, there is considerable force in the
Health Board's position that cross-examination of the Inquiry experts would be an
inadequate method of challenge without a basis in contradictory expert evidence heard by
the respondent.
[35]
I have reached the view that the issue of principle was wrongly decided and
consequently unfair, in breach of section 17(3) of the 2005 Act. The conclusion that receiving
the report would result in abandonment of the inquisitorial procedure was effectively
determinative of the Health Board's application, or at least material. While the general
concept of the safety of a hospital is easy to understand, the evidence relating to it in the
circumstances of the Inquiry's terms of reference is highly complex and has been the subject
already of extensive expert testimony. In getting to the heart of the issue of safety, the
Inquiry has attempted to inform itself by eliciting evidence from no fewer than six expert
witnesses, all of whom have reached the same conclusion. The Health Board, as a core
participant who would indisputably be impacted severely by adverse findings on the
matter, invited the Chair to receive additional expert evidence that reached conclusions
contrary to those reached by the Inquiry experts. The act of doing so would not have the
inevitable result of turning the process into an adversarial one. It is not for this court to
direct the Inquiry as to management of its process. However, receiving the report and
calling the authors to give evidence could all be achieved under the inquisitorial procedure
adopted to date. Counsel for the Inquiry would take responsibility for leading the evidence,
with core participants submitting questions in the usual way. There was no suggestion
21
either to the respondent or to me that the witnesses would be led by one party (the Health
Board) and be cross-examined by all others in a manner that would simulate a court process.
A decision to receive evidence tendered by one participant can be perfectly consistent with a
form of procedure that imposes an obligation on the Chair to do whatever is necessary to
make fully informed findings on the central issues within the terms of reference.
[36]
While it may be relatively unusual for a core participant to tender a document or
witness to the Inquiry and suggest that the witness give evidence, it is competent. The
approach to its inclusion will depend on the context. At the time of the Health Board's
application, as indicated, the Inquiry had only one expert conclusion on the risk to safety
issue, albeit from six different witnesses. Where a different conclusion on matters about
which key findings will require to be made is advanced for consideration, the first question
ought to be whether the evidence is likely to assist determination of those issues. It is not a
question of the process transmuting into an adversarial one, but of assisting the Inquiry
Chair in making robust and defensible findings.
[37]
I reject the submission that the conclusion on the practical obstacles to including the
expert report tendered as part of the Glasgow III phase can amount to a stand-alone
decision. Paragraph 61 of the decision states clearly that the contentious matter of the expert
report can be resolved "at the level of principle". The decision was not to admit the report
on that basis, something the respondent considered was underlined by the practical
considerations. Thus, the practical considerations served to highlight or emphasise a
decision reached by reference to principle. The underscoring of an erroneous decision by
reference to practical considerations cannot rectify it. The suggestion that I should read into
paragraph 61 that the practical considerations were included as a separate or alternative
reason in the event that the respondent was wrong on the issue of principle, is contradicted
22
both by the statement that the issue could be resolved at the level of principle and that the
reasons were "interrelated".
[38]
Counsel for the respondent and the interested parties placed considerable emphasis
on both the fact that the application had been made only in the context of Glasgow III and
the developments that have taken place since August 2024. It is clear from Directions 8
and 9, issued subsequent to the decision of 1 August, that no conclusions are now to be
reached at this stage and that the respondent is open to receive any further application to
receive the expert report and hear from further witnesses. I acknowledge that the
respondent has adopted an entirely responsible approach in an attempt to resolve the
consequences of the decision to exclude this evidence. Circumstances have changed since
the Health Board made the application and there is now time to consider the merits of
receiving the contradictory expert evidence.
[39]
The difficulty is that, as the decision to refuse to receive it in August was, at least
primarily, made as an issue of principle, it would not currently be open to the respondent to
reach a different view. None of the correspondence shown to me impacts on that as there is
no agreement that the decision of principle was wrong. Even if there was, there is no other
mechanism to correct the error. The effect of the decision is to exclude the report and related
evidence from consideration completely. That is sufficient to dispose of the arguments that
the petition is academic and/or premature. The petitioner has required to ask this court to
invoke its supervisory jurisdiction to resolve the current impasse, so the petition has been
capable of achieving a practical result (BBC v Scottish Child Abuse Inquiry Chair 2022 SC 184,
Lord Carloway, at paragraph 36).
[40]
The question then becomes one of appropriate remedy. The Health Board seeks
declarator and reduction, which failing declarator. I have concluded that reduction would
23
be unnecessary and inappropriate given recent developments. Matters have moved on since
the decision under challenge. The evidence stage of Glasgow III has concluded and the
contradictory expert evidence was not led. Procedurally the respondent has made clear that
he would accommodate a further application for this evidence to be included. In the
absence of a declarator from this court in relation to the issue of principle, it seems likely
that those who opposed the previous application as a matter of principle would do so again.
They would be bound to succeed as the respondent has already expressed a view on that
principle. Accordingly, I will sustain the petitioner's plea in law insofar as it seeks
declarator and repel the pleas in law of the respondent and the interested parties. I will
pronounce a declarator that the respondent's decision of 1 August 2024 was wrong in
principle and unfair to the extent that it concluded that receiving the expert report tendered
by a core participant and hearing evidence from the report's authors would result in the
abandonment of the Inquiry's inquisitorial procedure. Quoad ultra I will repel the
petitioner's plea in law. I will make no other orders. Any argument about whether the data
accompanying the report should be produced before any future application is determined
falls within the scope of Inquiry management and will be for the respondent to address.
I will reserve all questions of expenses.
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2025/2025csoh12.html
