Regular readers of SMIB will recall our previous article (SMIB
Personal Injury Bulletin 15 March 2006) on the matter of striking
out for want of prosecution. As of 12 June 2007, the Inner House of
the Court of Session, in Barrie Tonner v Reiach & Hall,
confirmed that Scottish courts can dismiss actions due to
inexcusable and inordinate delay on the part of the pursuer, albeit
as a last resort.
The Human Rights Act 1996 prohibits public authorities, such as
Scottish courts, from acting in a manner incompatible with the
European Convention of Human Rights. Article 6 of the Convention
entitles a defender to a fair public hearing within a reasonable
time. If a pursuer's conduct would prevent this, a Scottish court
can dismiss his action, the Inner House decided. This is binding on
all Scottish courts, short of the Lords, in contrast with the
previous decisions on the point.
The court decided that Scottish courts have an inherent power to
do what is needed to fully discharge their responsibilities, even
in the absence of a specific Rule of Court.
Although any available remedy against an agent and the
defenders' conduct should be disregarded, and each case must be
decided on its own circumstances, in general there must be
inexcusable and inordinate delay as a necessary start point, and
the consequences of this are also key. An added element of
essential unfairness must then be shown.
Mr Tonner's case is worth a read to see an example in practice,
but it seems inevitable, now that the situation has been made
certain, that many further examples will follow. In the past, we
had to advise insurers either to let sleeping dogs lie and run the
risk of a very ancient case being revived further down the line, or
to grasp the nettle and recall the sist (stay), knowing that the
pursuer might never have done so. We now have a clear means of
protecting defenders in those cases which previously never seemed
to go anywhere, but wouldn't go away.
Which makes this an excellent time to consider a file
review!
Contributed by Lesley Allan