Have you ever wondered what dormant volcanoes and sisted court proceedings have in common?

A common impression of court proceedings may be that they are fast moving with matters concluding 'quickly' with a judgement in one party's favour. It is a principle of Scottish civil procedure that an action should be litigated without interruption to a conclusion (MacPhail, Sheriff Court Practice). However, this is not often the case.

Sometimes actions "fall asleep" or remain dormant without being sisted, where for example parties want to enter out of court settlement discussions or undertake further enquiries. However, some cases remain dormant for long periods of time. There is always a risk that a dormant case could 'erupt' later.

A dormant case may remain inactive until one of the parties enrol a motion for the case to proceed.

If there are cases that have been dormant for a number of years and there has been no meaningful progress to settlement, a defender has one of two options. They can 'sit tight' until a pursuer decides to make progress with their case or they might wish to take action to have the case dismissed due to the long period of delay. Case law and court rules have evolved over the years to recognise these situations.

Evolving case law and court rules

The case of Tonner v Reiach and Hall [2007] CSIH 48 ED concerned an action of professional negligence raised in 1988 against the defenders, a firm of architects in respect of a building contract. The action was immediately sisted (a court order, usually by agreement, temporarily stopping the action) in terms of the pursuers motion. Parties were then in sporadic settlement talks. In 2005 the pursuers recalled the sist (this means they wanted the case to become active again). The architects argued that decree of absolvitor should be granted in their favour for, ‘‘inordinate, unexplained, and inexcusable delay’’ and argued it would be unfairly prejudicial for the action to proceed.

The architects were successful on appeal where the court held that the delay in this case posed a serious risk of prejudice to the architects. Lady Smith's reasoning focused on the factual circumstances insofar as it was not fair or reasonable to suggest that, after such a long delay and no activity for several years, the architect, having retired in 1999, would have held on to his notebooks and papers for such a long period of time.

The defenders in Hepburn v Royal Alexandra Hospital NHS Trust [2010] CSIH 71 1st Division were unsuccessful in persuading the court that they had been prejudiced by the long delay in proceedings. The pursuer raised an action against the first and second defenders in 1998 with the action being sisted very shortly after. The pursuer claimed she had not been fully advised of the risks of a medical procedure by the Consultant doctors. Six years passed and no progress had been made despite the defender's agents making enquiries on numerous occasions. In that period: the pursuers had not attempted to recover hospital records; instructed expert reports; one of the witnesses died; and the pursuers appointed new solicitors. The case became active again in 2007. The defenders were successful at first instance. The pursuer appealed the decision, and the reclaiming motion was granted on the basis that granting decree of dismissal in this case would be denying a fair trial and that the defenders would not be prejudiced if the case proceeded to proof. The court took the conduct of the defenders into account which had included their prior lodging of defences and the availability of one of the consultants who would be a witness.

Tonner and Hepburn were both decided on the common law and the court's inherent jurisdiction to deal with cases even where there are no set rules. Following these cases, new rules were introduced setting out the procedure for applying for decree of dismissal when there is an '…inordinate and inexcusable delay by another party or another party's agent in progressing [an] action, resulting in unfairness'. (Rules 15.7 OCR and 21A.1 Court of Session).

The case of Abram v British International Helicopters Ltd [2014] CSIH 2nd Div proceeds against the background of Rule 21A.1 in the Court of Session, which is similar to Rule 15.7 in the Sheriff Court. This case concerned a personal injury action raised in 1990 when the helicopter carrying the pursuer from an oilring where he worked, ditched in the North Sea. This action was immediately sisted for settlement negotiations. There was no further procedure for 8 years before the action became active again. There were then further years of procedural back and forth but no substantive progress on the factual position. Fast forward to July 2012 the defenders minuted for decree of dismissal and were successful. The pursuer's appealed this decision and the court upheld the decision by stating that when the whole-time span was examined, the delay had been inexcusable and largely caused, by the pursuer or his agents.

The court found that unfairness resulted from the delay as future evidence to be presented was likely to be incomplete and vague in important respects. Therefore, the court’s ability to analyse the evidence would have been compromised and it would be unable to do justice in the cause because of the predicted inadequacies at a proof.

The court also highlighted that their primary focus in determining whether there has been delay is based on what has actually happened in the court process rather than out of court settlement discussions, for example.

Key takeaways from Abram regarding delay and unfairness include: 

  • Delay increases the risk of evidence being lost, destroyed or mislaid
  • Delay can contribute to the impairment of the recollection of potential witnesses.
  • Each case has to depend on its own circumstances. 
  • There is an onus on the defender to press for progress as the raising of an action puts a defender on notice and provides them with an opportunity to make investigations into the facts and to record important material.
  • The incurring of cost and the impact of a case's progress on the court's time is relevant to whether or not an action should be dismissed.

So, should a defender sit tight or take action?

Reflecting on the decided cases and court rules, a good starting point is to consider what prejudice there is to a defender in the action proceeding? It is key that 'unfairness' must exist. The policy objective underlying the introduction of the rules on undue delay link into the Right to a Fair Trial (i.e. that such unfairness creates a substantial risk that a fair trial is no longer possible).

Regard should be had to the quantity and quality of evidence, availability of witnesses and concerns of the witness's ability to recall evidence. A defender should also consider if there are expert reports that can be relied upon. It is also clear that the delay must be substantial in the circumstances of the case. In the cases mentioned there were periods of 6, 9 and 25 years that had elapsed.

Thought should also be had to the defender's actions or lack of action as the court will take this into account.

From a commercial perspective it could be more cost effective to 'sit tight' and wait. The more time that does elapse, the further away the 'loss or, 'breach' happened and there will be a higher risk that evidence is unavailable or incomplete. On the other hand, businesses and individuals may find a looming court action unsettling and want matters to be concluded. 

Brodies advise clients pursuing and defending court actions on a regular basis and can provide advice. Our in-house solicitor advocacy team have wide ranging experience in appearing at courts and representing clients throughout Scotland and beyond.

Contributors

Tony Jones KC

Partner & Solicitor Advocate

Naomi Cornish

Senior Solicitor