[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McDonald & Anor v Kwok [1998] ScotCS 107 (18 December 1998) URL: http://www.bailii.org/scot/cases/ScotCS/1998/107.html Cite as: [1998] ScotCS 107

[New search] [Help]

This is an action of damages for personal injuries arising out of a road traffic accident which is said to have happened on 21 July 1994. The first pursuer concludes for damages of £200,000 on the basis of the averments of loss set out in article 4 of the condescendence. The second pursuer concludes for damages of £100,000 on the basis of the averments of loss set out in article 5 of the condescendence. The summons was signetted on 17 July 1997, and service was accepted by the defender's solicitors on his behalf on the following day. The summons has never been called, although more than a year and a day has passed since the period of notice expired. Rule 13.13(6) of the Rules of Court provides that in such circumstances the instance shall fall. The pursuers have now enrolled a motion seeking to invoke the dispensing power conferred on the court by Rule 2.1 to enable the summons to call despite the terms of Rule 13.13(6) and the action to proceed thereafter. The defender has opposed that motion as incompetent.

Rule 13.13 provides inter alia as follows:

Rule 2.1 provides as follows:

The rule which is now paragraph (6) of Rule 13.13 of the Rules of the Court of Session 1994 is of very long standing, having had its origin in an Act of Sederunt of 1831. The court's dispensing power now found in Rule 2.1 was first introduced, somewhat differently expressed, in 1934.

The practical context of the present motion is the law of limitation of actions. If Rule 13.13(6) takes effect according to its terms, the pursuers will require to raise a fresh action. Any such action will be time-barred in terms of section 17(2)(a) of the Prescription and Limitation (Scotland) Act 1973, unless the pursuers are able to persuade the court in terms of section 19A of that Act that it is equitable that they should nevertheless be allowed to bring the action. The pursuers make the present motion with a view to avoiding the need to bring a further action in which they would require to rely on section 19A.

Mr Kinroy for the pursuers submitted that the motion was competent. Rule 2.1 was catholic in its scope. It might competently be invoked to relieve a party from the consequences of any failure to comply with any provision of the Rules. The fact that the effect of Rule 13.13(6) was that the instance in the present action has fallen, and the action might therefore be regarded as no longer in existence, did not exclude resort to Rule 2.1. Standing the existence of the power conferred by Rule 2.1, it could not be said that the effect of Rule 13.13(6) in the events which have happened was to render the court functus.

Before examining those submissions, and the authorities on which they were based, more closely, it is convenient to note that there was no dispute between the parties in relation to one aspect of the proper construction of Rule 2.1. As was held in Grier v Wimpey Plant & Transport Limited 1994 SC 385, the use of the phrase "failure to comply" does not restrict the application of the dispensing power to circumstances in which there has been breach of an express obligation placed upon a party by the Rules, but allows it to be invoked also to relieve a party from the consequences of failure to take any step in terms of the Rules which was necessary to make progress in his action.

It is necessary, in approaching the application of Rule 2.1 to Rule 13.13(6), to understand what is meant by the provision that "the instance shall fall". Mr Kinroy referred in that connection to two cases. In McKidd v Manson (1882) 9 R 790 Lord President Inglis said (at 791):

In Cumming v Munro (1833) 12 S 61, the Lord Ordinary (Cringletie) said (at 63†):

In support of his submission that the dispensing power was available even to resuscitate a summons after the instance had fallen, Mr Kinroy relied first on Grier v Wimpey Plant & Transport Limited. That case concerned the scope of the dispensing power afforded to the Sheriff under Rule 1 of the Ordinary Cause Rules, which was in terms similar (but not identical) to Rule 2.1 of the current Rules of the Court of Session. Rule 35(2) of the Ordinary Cause Rules (as they existed at the material date) provided that a cause which had not been tabled, and in which protestation had not been craved, should drop from the roll, but that within three months the sheriff might direct it to be again enrolled for tabling under such conditions as seemed just. It was argued for the pursuer that the sheriff should have exercised his dispensing power to enable a motion to allow the cause to table to be granted outwith the three month period. The defenders maintained that it was incompetent for the sheriff to do so, since the cause had dropped from the roll and thus ceased to exist and, after the expiry of the three months during which a motion for late tabling might have been entertained, the sheriff was functus. The court dealt with the defenders' submission in the following passage from the Opinion of the Court (at 392H-393B):

Mr Kinroy also relied on X v Dumfries and Galloway Regional Council 1994 SC 498. There the appellant had failed to lodge and deliver appeal prints within the 28 day period allowed by Rule 269 of the 1965 Rules of Court, so that his appeal was deemed to be abandoned, and had failed to take timeous advantage of the provision in Rule 272 for reponing within seven days against such deemed abandonment. The respondent relied on Grieve v Batchelor and Buckling 1961 SC 12 in support of a submission that resort to the dispensing power was in the circumstances incompetent. The court (at 501F) distinguished Grieve on the ground that there the incompetency of the exercise of the dispensing power of the Court of Session arose from the fact that by the time the motion invoking the dispensing power was enrolled, the process had been retransmitted to the Sheriff Court. The court followed Grier, and held that the dispensing power could competently be invoked to obtain relief against the deemed abandonment of the appeal. Mr Kinroy also cited Graham v John Tullis & Son (Plastics) Ltd (No.1) 1992 SLT 507 at 509H, and Mains v Uniroyal Engelbert Tyres Ltd (No. 2) 1995 SC 538.

Mr Stephenson for the defenders submitted that the pursuers' motion was incompetent because, the instance of the summons having fallen by virtue of Rule 13.13(6) upon the lapse of a year and a day from the expiry of the period of notice, there was now no process in dependence before the court in which the motion could be entertained. He sought to describe calling as the third of three necessary cumulative steps to be taken to enable a pursuer to bring his action before the court. These steps were (i) signetting of the summons, (ii) service of the summons and (iii) calling of the summons. Until all three steps had been taken, he said, there was no action before the court. He drew attention to Rule 13.14 which regulates protestation for not calling. If that procedure is adopted, it leads to a declarator that the instance has fallen. Between them, Rules 13.13 and 13.14 demonstrate the intention that the instance should, in one way or another, fall if the summons was not called. Those Rules are protective measures designed to shield the defender from having an un-called summons hanging over him indefinitely. In an action of damages for personal injury the long negative prescription does not operate (Prescription and Limitation (Scotland) Act 1973, section 7(2)). If the dispensing power could be invoked to resuscitate an uncalled action in which the instance had fallen, there would be no theoretical end to the period in which such resuscitation might be sought, although it was accepted that a pursuer's prospect of persuading the court to grant relief would diminish with the passage of time. The present action is in a different position from those under consideration in Grier and X v Dumfries and Galloway. In them, there was an action which had at some stage existed. Whether he was right or not in submitting that an uncalled summons did not bring an action before the court, the effect of the instance falling was that the action was in the same position as if it had never existed (McKidd and Cumming). Neither in Grier nor in X v Dumfries and Galloway was that the case. In Grier the fact that the cause dropped from the roll did not mean that it was as if it had never existed, because the possibility of enrolling for late tabling remained for a period of three months. In X v Dumfries and Galloway there had been a live process up to the point when the appeal was deemed to be abandoned. Although those cases supported the conclusion that the dispensing power was available in a wide range of circumstances, they did not support the conclusion that it was available to resuscitate a summons where the instance had fallen for want of calling.

In my view Mr Stephenson was wrong in his submission that calling is the third of three steps which require to be taken to bring an action into existence. Once a summons has been signetted, it may be brought before the court on a motion for interim orders. It is service of the summons which is treated as commencement of the action for the purpose of the law of limitation of actions. It is therefore going too far, in my view, to say that an action has no existence until the summons has been called. I accept, however, that in the original meaning of the concept of the instance falling, its effect was that the summons wholly ceased to exist, so that it was as if it had never existed. The submission that once the instance has fallen there is no action in existence, and therefore no process in which a motion invoking the dispensing power can be brought before the court has therefore an initial attraction. I am not persuaded, however, that it is sound.

It seems to me that the trend of recent authorities has been towards the view that it is always competent to invoke the dispensing power. I do not consider that Mr Stephenson's attempts to distinguish the two cases on which Mr Kinroy principally founded were successful. I see little practical difference between the situation in Grier where the sheriff court action had dropped from the roll and the three month period within which the sheriff might have entertained a motion for late tabling under OCR 35(2) had expired, and the situation in a Court of Session action where the instance has fallen for want of calling. In either case it can reasonably be said that there is, for ordinary purposes, no longer a process before the court. Nevertheless in Grier the court held that the dispensing power remained available. In X v Dumfries and Galloway by the time the motion invoking the dispensing power came before the Court of Session, there was no longer an appeal in dependence before that court, because it was deemed to have been abandoned, yet the dispensing power was held still to be available.

I do not consider that there is compelling force in Mr Stephenson's submission that, if resort to the dispensing power is available in a case where the instance has fallen, that would have the undesirable effect of leaving the defender indefinitely in the position of having hanging over him an action which had ceased to exist but was capable of resuscitation. A defender who wishes to protect himself from that situation has available to him the procedure of protestation. The final stage of that process is the granting of a declarator that the instance has fallen (Rule 13.14(3)(a)), which interlocutor is final and not subject to review (Rule 13.14(4)). Once such a final interlocutor has been pronounced, there can in my view be no question of the dispensing power being invoked. The theoretical spectre of a summons in respect of which the instance has fallen but which is for ever capable of resuscitation therefore arises only where the instance falls under Rule 13.13(6), and its significance should not be exaggerated, since it is plain that with the passage of time the prospect of successful invocation of the dispensing power fades to negligibility.

It seems to me that the correct view of the competence of the motion under Rule 2.1 in the present case is to be inferred from the language of the rule itself. The only question posed by the Rule as a test of competency is simply whether there has been a failure to comply with a provision of the Rules. The second question - whether that failure has been shown to be due to mistake, oversight or other excusable cause - goes to whether the court's discretion to grant relief should be exercise, not to the competency of the motion. The terms of the Rule are wholly unqualified as to the nature of the failure to comply. Equally, there is no restriction to some only of the provisions of the Rules. The remedy which the court may grant is relief from the consequences of the failure. There is nothing to suggest that some consequences of failure are so serious or so extreme as to be incapable of being relieved. The court's power in granting relief is unqualified - it may pronounce such interlocutor as it thinks fit to enable the cause to proceed as if the failure had not occurred. That last aspect of the Rule strikes me as important. Irrespective of the consequences which the Rules otherwise attach to the failure in question, the court is given power to devise a procedure for putting the defaulting party back in the position in which they would have been if the failure to comply had never occurred.

To approach the matter of competency, as the defender does, from the starting point that there is now, by reason of the pursuers' failure to comply with the Rules, no action before the court in which the application for relief may be made, seems to me to set up the very mischief which the Rule is designed to remedy as an obstacle to the provision of that remedy. That approach is in my opinion wrong. The proper starting point, in my opinion, is to ask if there has been a failure to comply with a provision of the Rules. If there has, it is open to the court, if persuaded that the failure flows from an excusable cause and that as a matter of discretion it is appropriate to grant relief, to devise whatever steps are necessary to restore the situation which would have prevailed if the failure had not taken place.

It might be thought that the foregoing approach is destructive of the meaning of the concept of the instance falling, but that is not in my view so. Rule 13.13(6) cannot, in my view, be regarded as unqualified in its terms. Like all the provisions of the Rules which provide for a consequence to follow upon a failure, Rule 13.13(6) must in my view be treated as being subject to the implied qualification: "but that consequence shall not follow if the court grants relief under Rule 2.1".

I therefore hold that the pursuers' motion for relief in respect of their failure to have the summons called within a year and a day after the expiry of the period of notice is competent.

It remains for consideration whether the failure was excusable, and whether as a matter of discretion the relief sought should be granted. I heard submissions on that matter, but it became apparent that it would be preferable to form a view on the competency of the motion first, and thereafter to afford parties an opportunity to lodge in process (i) statements setting out the circumstances on which they seek to rely in support of their submissions for or against the granting of the relief sought, and (ii) any other documentary material on which they wish to rely in that connection. I shall therefore continue consideration of the pursuers' motion, allow parties, if so advised, to lodge such statements and other documents, and put the case out By Order to enable parties to make such further submissions as they wish on the continued motion.