De-laying down the law: Mannas v Chief Constable of the Police Service for Scotland

01.03.19

In a recent Court of Session case a prolonged delay of 13 years was not sufficient to justify dismissal on the basis that the delay was not found to result in judicial unfairness.


Background


This case arose from a road traffic accident (‘RTA’) in 2001 involving a collision between an emergency police vehicle and a civilian vehicle. The claimant was a passenger in the latter and brought a civil claim against the Police in 2004 for damages in respect of injuries. 


The claimant accepted that her physical injuries were modest; however she alleged that she had sustained lasting psychological damage as a result of the accident. She alleged having suffered depression, agoraphobia, obsessive compulsive disorder, major depressive disorder and fear of contamination by contact with other people. 


The court action was sisted (stayed) in 2004 to allow the claimant to obtain legal aid, which was granted on 11 May 2004. The action remained dormant until 2017 when the Police applied to the court for dismissal.


The law


Rule 21A.1(5) of the Rules of the Court of Session 1994 sets out a two prong test for dismissal of a claim. There must have been (a) an inordinate and inexcusable delay on the part of any party or their agent in progressing the claim; and (b) unfairness specific to the factual circumstances of that claim as a result of the delay. 


Both elements must be established in order to justify dismissal, so the delay must be excessive and without reason, and must result in unfairness. Only then can the court assess whether to use its discretion to dismiss the claim.


Arguments


It was argued on behalf of the Police that due to the claimant’s particular history of having suffered numerous other psychologically distressing incidents over the preceding 21 years, the delay would make it difficult to assess the extent of the injuries arising from the RTA as opposed to a different event. These were alleged to have included assault, miscarriages, medical negligence, bereavements and threatened eviction. It was noted that the claimant had raised proceedings in relation to some of these incidents, which had subsequently been abandoned or dismissed due to delay. The defenders argued that had the claim been pursued expeditiously, no assessment on attribution of injury to the RTA would have been required. 


The claimant in turn argued that these issues did not amount to unfairness as they did not make it impossible for the Police to defend the action. The claimant also argued that the Police would be able to include an argument that they should not be liable for any damages arising from symptoms exacerbated by the delay, or at least not plainly attributable to the accident in question, therefore ensuring they would not be unfairly disadvantaged. Additionally, the claimant argued that the court could take into account that another passenger had successfully brought a civil claim against the Police when deciding whether there was a case to answer. 


Decision


Lord Tyre refused to dismiss the claim on the basis that the power to do so was a draconian measure that should not be used other than “as a last resort”. Therefore, although the delay would inevitably create “difficulties”, there was no “substantial risk that justice cannot be done.”


In taking this view Lord Tyre noted that witness evidence was still available; the factual issues were uncomplicated given that it was a fairly straight-forward RTA; and both parties had expert witnesses to comment on the causal l link between the claimant’s injuries and the accident, and any effect of delay. Lord Tyre was not persuaded that the settled civil claim should be indicative of prospects of success, as such evidence would not be admissible as a rule, and therefore could not have any bearing on his decision regarding the test for dismissal.


Finally Lord Tyre stated that the delay would “likely operate against the pursuer than in her favour” regarding the quantification of damages. Therefore although dismissal was refused, it was accepted that the delay would likely negatively affect the claimant’s case rather than risk unfairness to the defender. 


Conclusion


In Mannas, the strength of available evidence and the relative simplicity of the case meant that the delay, although excessive, had little prejudicial effect against the defender. However, this can be contrasted with the case of Abrahm v British International Helicopters , where a claim for damages following an incident in the North Sea was dismissed under Rule 21A after 14 years of inaction. 


In Abrahm a review of the effect of delay fulfilled the test for dismissal, given there was a lack of documentary evidence from the time of the incident. The court noted that that the evidence would likely “be incomplete and vague in important respects” and therefore lead to “severe doubts” as to its quality. In that case, assessing the claimant’s injury of post-traumatic stress disorder (‘PTSD’) would have proven difficult and resulted in “a very substantial risk that the defenders will not be able to test the evidence”


The main takeaway from Mannas is that the test for dismissal will be exercised strictly and used only as a last resort where there is a substantial risk of unfairness as a result of inordinate delay. Whether a claim has truly become stale therefore depends not only on vintage, but also on quality. 


Defenders who are considering pursuing dismissal will have to carry out a strict assessment of whether they can realistically demonstrate potential unfairness, particularly regarding the quality of any available evidence and the defender’s ability to test that. It seems likely however that the more complex the case, the more pronounced any effect of delay might be and the better chance a defender will have of obtaining dismissal.

 

Written by Louise Kelso, Partner, and Katie Higgins, Trainee