Sheriff Appeal Court dismisses New School Butterstone staff’s appeal in Care Inspectorate damages claim

About this case:

• Citation:
  [2026] SAC (Civ) 56
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff GK Murray

An independent day and boarding school for which both appellants worked was closed in 2018 following allegations of physical mistreatment of pupils. Former head of school William Colley (“the first appellant”) and child protection coordinator Angela Gordon (“the second appellant”) subsequently brought actions for damages against the Care Inspectorate.

Appeals in the cases were heard by Sheriff Principal Gillian Wade KC, Appeal Sheriff Patrick Hughes and Appeal Sheriff Gregor Murray. The first appellant appeared in person and as the authorised lay representative of the second appellant, while Alastair Sloan appeared for the respondent.

Alleged physical mistreatment of pupils

In 2018, a whistleblower delivered a letter to the first appellant alleging physical mistreatment of two pupils at the hands of staff at the New School, Butterstone, which catered for children with special educational needs. After consultation with the second appellant, both appellants resolved that, while the allegations merited investigation, they did not require to be reported to any external agency.

Some weeks later, during the school’s October holidays, the letter’s author reported the allegations to Police Scotland. Subsequently, the respondent threatened to close the school, later sending a report to various public bodies observing a failure on the school’s part to invoke its child protection policy. In due course, the school’s board of governors suspended the first appellant from his post and, after the Witherslack Group withdrew from taking over the school on account of the respondent’s concerns, the school was closed in November 2018.

Alleging that the respondent had made false allegations against the school and themselves, both appellants brought proceedings in delict. Both appellants alleged that the respondent had acted maliciously in seeking to close the school, causing them significant reputational damage and preventing each from working. Such claims were made in spite of an independent review, commissioned by the Scottish government, finding in 2020 that the school had long been “not performing well in the areas of safeguarding” and “child protection processes”. The appellants sought £650,000 and £830,000 in damages respectively on account of their alleged loss.

After both appellants’ claims were dismissed by the sheriff, appeals were made to the Sheriff Appeal Court. In separate judgments (see first here and second here), albeit ones sharing identical or substantially indistinguishable content in numerous passages, the Sheriff Appeal Court addressed each appellant’s submissions as regards the sheriff’s judgment and the substantive allegations against the respondent.

Averments lacking relevancy and specification

Beginning both decisions with general comments on each appellant’s pleadings, Appeal Sheriff Murray observed in the second appellant’s case: “The appellant has been without legal representation throughout the proceedings. Her written pleadings are prolix and repetitious … Material which is essential to her case is not incorporated into her pleadings … Though the respondent incorporates the July 2020 independent review into its pleadings, the appellant does not deny its terms and findings.”

Giving a similarly stringent critique of the sheriff’s respective judgments, he added in the first appellant’s case that: “The sheriff’s judgment is not well constructed and raises further issues. Parts appear to have been copied and pasted from a separate judgment which dismissed parallel proceedings brought by [the second appellant], in which the parties’ averments are materially different. It does not fully take account of the statutory functions of the respondent and other relevant bodies, an issue which bears upon determination of the case … In relation to a key issue, whether the appellant’s actions were informed by a mistaken understanding of the law of assault, it fails to accurately characterise his position on record. Finally, it sustained the respondent’s first plea-in-law, which the respondent concedes was not insisted upon at debate. On no view can the sheriff’s reasoning be supported in its entirety.”

Proceeding to consider the adequacy of the appellants’ submissions in a passage reproduced verbatim in both judgments, he continued: “[The respondent] submitted that the appellant[s’] averments of loss entirely lacked relevancy and specification. That submission was maintained at debate, accepted by the sheriff, as shown in his interlocutor and explained in his judgement. As the grounds of appeal do not challenge those findings, there is no basis for this court to interfere with that part of the sheriff’s decision. The appellant[s] accepted before us that none of the grounds of appeal challenged the sheriff’s decision on the point. Grounds of appeal are an important part of appellate procedure, which give advance notice of the case to be met by the respondent and addressed by the court. Any argument not included in the Note of Appeal therefore falls to be rejected. The appellant[s’] status as [party litigants] does not excuse [their] failure in this respect. As the appellant[s’] averments of loss lack relevancy and specification to the extent that the action must be dismissed, the appeal falls to be refused.”

Examining for the sake of completeness the first appellant’s submission that the respondent was liable to him in negligence, Appeal Sheriff Murray reasoned: “In our view, the duty contended for by the appellant falls to be characterised as novel. It arises from a situation in which the respondent is alleged to have caused pure economic loss through a misstatement. However, unlike the situation in Hedley Byrne v Heller (1964) and the majority of the decisions which have followed thereon, the statement is not one upon which the appellant himself would ever have placed reliance. Rather, the contention is that others placed reliance on it; that it was inaccurate; and that as a result of the reliance by others on this inaccurate statement, the appellant has suffered economic loss. There is no established principle according to which a court can decide whether a duty of care should be owed in such a situation. Therefore, following Caparo [Industries plc v Dickman (1990)], the court must consider the closest analogies in the existing law, as well as the reasons for and against imposing liability in order to decide whether the existence of a duty of care would be just and reasonable.”

In that regard, he concluded that: “[T]he appellant complains … that the respondent has made a false statement about him which has caused him harm. Given that a remedy for such harm already exists in the law of delict, it is unnecessary to infer the duty of care for which the appellant contends. We further consider that there is force in the sheriff’s analysis that … public policy militates against inferring such a duty. Consequently, we do not consider that a duty of care of the nature contended for by the appellant has been relevantly averred as a matter of law.”

Both appeals were accordingly refused.