Newman Shopfitters v M J Gleeson Group Plc 2003 SLT
(Sheriff Court) 83
Martin McKie & Others v Maureen MacRae & Another
Court of Session 23rd December 2005
Insurers and those acting for them are familiar with those
infuriating cases that remain sisted while the Pursuer's less than
pro-active representatives do nothing towards resolving matters
letting interest and recoverable benefits mount to swell the value
of the claim, occasionally in excess of the sum sued for.
In some such cases the best advice is to "let sleeping dogs
lie". However, this carries the risk that renewed interest in the
litigation, often occasioned by a change in agency, may lead to a
substantial payment being at some indefinite future date.
Until recently, it was understood that the Scottish system did
not allow Defenders the equitable remedy afforded by the English
Courts' power to strike out such causes for want of prosecution.
However, recent decisions in the Court of Session and Sheriff Court
indicate that the Scottish courts have an inherent power to dismiss
actions where unconscionable delay on the part of the Pursuer and
representatives constitutes an abuse of process having the
practical effect of depriving the Defender of the right to a fair
trial within a reasonable time. This right is, of course, enshrined
in Article 6 of the European Convention of Human Rights, which in
these circumstances can be relied upon, rather unusually, to
protect commercial interests.
To date, the issue has only been considered by Courts faced with
motions to recall sists. The refusal of these motions would
undoubtedly have delayed the cases being heard. There are other
circumstances where this issue could be relevant. For example, a
case may "fall from the Rolls" as a result of the Pursuer's failure
to comply with an order of the Court. There is no obligation upon
the Court to instigate investigation into the circumstances
surrounding actions that have departed from the normal timetable as
a result of lack of positive action by either party.
Traditionally, the view of the Court was that the progress or
lack of it was the responsibility of both parties to an action as
either could apply to the Court to recall the sist and proceed with
the action at any time. However, two recent decisions place the
primary obligation to progress an action with the Pursuer and show
that the Pursuer's failure to discharge this obligation will be
penalised by the dismissal of his action in certain exceptional
cases.
In Newman the Pursuers tried to recall a sist imposed almost
seven years earlier for the purposes of an arbitration that never
took place. The Sheriff recalled the sist but granted decree of
absolvitor. His judgment was upheld on appeal as a proper exercise
of the Court's inherent jurisdiction. The Pursuers' agent in
letting the matter lie for such a period of time was regarded as an
abuse of process although it was not in breach of any particular
Court rule.
McKie was a reparation action arising from a fatal road accident
that took place in 1986. The children of the deceased only raised
proceedings in 1996. This delay was attributable to the non-age of
the Pursuers at the time when the triennium would normally have
expired.
The case was sisted almost immediately for the Pursuers to apply
for Legal Aid. Although this Application was granted within a few
months, no action was taken to recall the sist for a further five
years. Again the Court found it was entitled to dismiss this action
on the grounds of the unconscionable delay that had arisen. A delay
of at least twenty years between the material date and the hearing
of evidence entirely precluded the chance of a fair hearing.
The court referred to English dicta to the effect that Defenders
should not be prejudiced by a failure to act where the Pursuer's
delay in progressing the cause becomes extreme. While this decision
will almost certainly be appealed, it does provide the opportunity
to review any longstanding cases where resolution could perhaps be
reached by an application to bring matters back into Court.
A final word of warning - the Court will closely examine the
conduct of the Defenders before dismissing an action. It is
unlikely the court will adopt such an extreme course of action if
anything said or done by the Defenders is construed as causing or
contributing to the delay. In particular, an agreement to sist or
any encouragement offered to the Pursuer in terms of incurring
expense in connection with the prosecution of the action may
prevent the cause being struck out.
Contributed by Paul Wade