Mitchell & Anor v Glasgow City Council (Scotland)

The House considered whether a social landlord owed a duty to warn a neighbour that the landlord had summoned a violent tenant to a meeting at which action towards recovery of possession might be discussed, and whether the landlord had breached article 2 of the European Convention on Human Rights read with section 6(1) of the Human Rights Act 1998. The court held that foreseeability of harm was not by itself sufficient to impose a duty to warn: the imposition of such a duty requires more, for example an assumption of responsibility or other special circumstances bringing the risk within the scope of a legal duty. Applying the Caparo approach, it was not fair, just or reasonable to impose a duty on social landlords to warn neighbours in the circumstances of this case because of the public‑policy consequences and the risk of deterring legitimate intervention. The article 2 claim failed because the averments did not establish that the defenders knew or ought to have known of a "real and immediate" risk to the deceased's life on 31 July 2001 as required by Osman. Consequently the common law claim was irrelevant and the statutory human rights claim was excluded from probation.

Background and parties. The pursuers were the widow and daughter of Mr James Dow Mitchell who died after a violent assault by his neighbour, James Drummond. Both the deceased and Drummond were tenants of Glasgow City Council. The pursuers sued the council in delict/negligence and under section 6(1) of the Human Rights Act 1998 alleging (i) failure to warn the deceased about a meeting on 31 July 2001 at which Drummond was warned about eviction proceedings and (ii) a breach of the deceased's article 2 Convention right to life.

Procedural history. The Lord Ordinary dismissed the action (2005 SLT 1100). An Extra Division (2008 SC 351) recalled that interlocutor and allowed a proof before answer on the common law pleadings (majority) but excluded the article 2/Human Rights Act averments from probation. The council appealed to the House of Lords and the pursuers cross‑appealed the exclusion of the HRA averments.

• Nature of relief sought: damages for death, loss and injury at common law and a declaration/remedy under section 6(1) Human Rights Act 1998 for an alleged article 2 breach.
• Issues framed by the court: (i) whether the defenders owed a duty at common law to warn the deceased such that omission to warn could found liability for the third party's criminal act; (ii) whether article 2 imposed a positive operational obligation upon the council because they knew or ought to have known of a "real and immediate" risk to the deceased's life, and thus acted unlawfully under section 6(1) HRA.
• Court’s reasoning: on the common law claim the House applied established principles that foreseeability alone does not suffice to impose a duty to prevent third‑party wrongdoing and that, in the absence of an assumption of responsibility or other special factor, public authorities (and landlords) are not subject to a general duty to warn. Public‑policy considerations and the statutory housing scheme (including the slow, discretionary nature of recovery of possession under the Housing (Scotland) Act 1987) meant it would be unfair, unjust and unreasonable to impose such a duty. On the HRA claim the House applied the Osman test: the averments failed to show that the council knew or ought to have known of a real and immediate risk to life at the relevant time and so the article 2 positive obligation was not engaged.

Wider context. The court remarked on the rarity and strictness of the article 2 operational duty and on the public‑policy need not to deter authorities from taking legitimate steps to address anti‑social behaviour by imposing a broad duty to warn.

Appeal allowed and cross‑appeal dismissed. The House held that (1) the common law pleadings were irrelevant because foreseeability alone did not give rise to a duty to warn in the absence of an assumption of responsibility or other special factor and it would not be fair, just and reasonable to impose such a duty on a social landlord; and (2) the Human Rights Act claim based on article 2 was irrelevant because the averments did not satisfy the Osman threshold of a "real and immediate" risk that the authorities knew or ought to have known.

Lord Ordinary (Lord Bracadale) dismissed the action: 2005 SLT 1100. Extra Division (Lady Paton, Lord Reed and Lord Penrose) recalled the Lord Ordinary's interlocutor and, by majority, allowed a proof before answer on the common law case but excluded the article 2/HRA averments from probation: 2008 SC 351. Appeal to House of Lords: [2009] UKHL 11.