|
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Osborne
Lord Johnston
Sir David Edward, Q.C.
|
[2007] CSIH 54
A1304/03
OPINION OF THE COURT
delivered by LORD OSBORNE
in
RECLAIMING MOTION
in the cause
MARILYN LOUISE
McDONALD-GRANT
Pursuer and Respondent;
against
(FIRST) SUTHERLAND &
COMPANY and OTHERS
Defenders and Reclaimers:
_______
|
Act: Mr. Brodie; Lindsays W.S. (for Quantum Compensation
Specialists, Aberdeen)(Pursuer and Respondent)
Alt: Mr. Spencer Kennedy,
Solicitor Advocate; Balfour & Manson
(Defenders and Reclaimers)
30 May 2007
The background
circumstances
[1] In this
action, the pursuer and respondent in this reclaiming motion seeks damages from
the defenders and reclaimers. The
pursuer is the widow of the late William Barclay Grant, who died on 16
July 1998. The defenders are a firm of solicitors, now
dissolved, and the whole surviving partners thereof, who acted on the
instructions of William Barclay Grant.
The basis of the claim for damages is the alleged professional
negligence of the defenders.
[2] The defenders
having stated several preliminary pleas, the action was appointed to the
Procedure Roll on their motion. In due
course, on 1 June 2005, the action came before the Lord
Ordinary, when the submissions of the parties were heard. The Lord Ordinary made avizandum. On 7 November 2006, the Lord Ordinary, having
resumed consideration of the matter (1) allowed to parties a proof before
answer of their respective averments on record, all pleas standing; (2) appointed the proof to proceed on a date
to be fixed; and (3) reserved the
question of expenses. Thereafter the
defenders and reclaimers enrolled a reclaiming motion against the interlocutor
of 7 November 2006.
That interlocutor being one mentioned in Rule of Court 38.3(4), the
defenders were bound to seek early disposal of the reclaiming motion, in
consequence of the provisions of Rule of Court 38.7A, which they did. At the hearing of that motion, the court was
provided with an assessment of the likely duration of the hearing to determine
the reclaiming motion, which, in this case, was one day. Against that background, on 21
November 2006,
the case was sent to the Summar Roll, with a diet of one day; early disposal was ordered.
[3] On 22
March 2007,
the one-day diet for the hearing of the reclaiming motion took place. Argument was heard in part. During the course of that hearing, it came to
be appreciated by counsel for the parties and members of the court that the
diet allotted would prove insufficient.
Accordingly, on that date, the diet was discharged and the case was, of
new, appointed to the Summar Roll for a hearing of three days duration. The case continued to be regarded as suitable
for early disposal.
[4] On 22
May 2007 the
Keeper of the Rolls intimated to the parties a three day diet for the hearing
of the reclaiming motion, that diet being 30 May 2007 and the two following days.
[5] When the case
called before us today, 30 May 2007, our attention was drawn to a motion
enrolled on behalf of the defenders and reclaimers on 28 May
2007 in the
following terms:
" ... to dispense with the period of
intimation of this Single Bill, to discharge the diet set down for Wednesday 30
May, to refuse the reclaiming motion and to allow the pursuer a proof before
answer with eight days being required, to find the expenses of the reclaiming
motion to be expenses in the cause and to reserve the expenses of the Procedure
Roll Debate before Lord Dawson."
At the same time as the enrolment of this motion, those
acting for the defenders and reclaimers intimated to the clerk of court that
the reclaiming motion would not proceed.
The circumstances of
the discharge of the diet
[6] When the case
came before us today, we expressed our extreme dissatisfaction with the
situation which had developed. The court
had been put in a position in which it was, of consent, being asked to
discharge a three day diet so late that the time of the court could not
usefully be used. In consequence, a
waste of court time and thus of scarce public resources was inevitable. In this situation, the court required an
explanation from the defenders' advisers as to why this situation had come
about.
[7] Mr. Kennedy,
on behalf of the defenders, said that the waste of the court's time was
regretted. He had himself conducted the
Procedure Roll debate on behalf of the defenders before the Lord Ordinary,
which had lasted for only a part of one day.
On that basis, when a reclaiming motion had been enrolled on behalf of
the defenders, he had considered that one day would have been sufficient for
that purpose, although that had proved not to be so. During the course of discussion of the
reclaiming motion on 22 March 2007, in the light of certain
observations made by members of the court, he had come to think that the
prospects of having the case dismissed were not as good as he had previously
thought. In consequence, following the
discharge of that diet, Mr. Kennedy had discussed the position of the
defenders with senior counsel, who then acted on their behalf. The view formed was that the defenders
nevertheless had good prospects of success in the reclaiming motion, which was
considered likely to succeed, a view which we readily understand. Following these discussions a report was sent
to the defenders' insurers. The sequel
to that was that Mr. Kennedy was given instructions to accept that there should
be a proof before answer in the case, but only upon the basis that the expenses
of the reclaiming motion were to be expenses in the cause. On receiving these instructions, Mr. Kennedy
wrote to those representing the pursuer on 11 May
2007 setting out the defenders' position.
At that stage, of course, neither party had knowledge of the date of the
present diet which, as already narrated, was intimated on 22
May 2007. However, it was only on 28
May 2007
that agreement was reached, when the present motion was enrolled and intimation
given to the court that the reclaiming motion would not proceed. In the course of the discussion before us, it
was accepted that at no time following upon receipt by Mr. Kennedy of his
instructions from the defenders' insurers had any indication been given to the
Keeper of the Rolls that the reclaiming motion might not proceed. When that point was put to Mr. Kennedy by the
court, he responded by saying that he had, perhaps, expected that a three day
diet would not be available in early course;
also, it was by no means a foregone conclusion that the pursuer would
accept the condition insisted upon by the defenders as regards the expenses of
the reclaiming motion.
[8] In view of
the fact that parties were at one as to the future procedure in this case, we
granted the defenders' motion to discharge the present diet, to refuse the
reclaiming motion and to affirm the interlocutor of the Lord Ordinary. We also found that the expenses of the
reclaiming motion should be expenses in the cause and that the expenses of the
Procedure Roll debate should be reserved.
Some observations of
the court
[9] We feel
compelled to express our dismay at the waste of scarce public resources which
has occurred in this case. The diet of 22
March 2007
was lost because of an erroneous judgment as to the likely duration of the
discussion of the reclaiming motion, a judgment which we find surprising in
view of the obvious legal complexities of this case. However, that pales into insignificance in
comparison with what subsequently occurred.
In our view, those who are professionally involved in litigation in this
court have an indisputable obligation to take reasonable care to avoid
situations where court time will be wasted.
Pursuant to that obligation, we consider that, in the present case, as
soon as it had become clear to the defenders' advisers that there was doubt as
to whether the reclaiming motion would proceed, that state of affairs should
have been communicated to the Keeper of the Rolls. Only by keeping the Keeper of the Rolls
informed about developing circumstances, which may result in a diet not being
required, can situations such as the present one be avoided.
[10] It ought to be
clearly understood that, when early disposal of a reclaiming motion is ordered,
the Keeper of the Rolls may intimate a diet at very short notice. If he is not warned about circumstances which
may render it doubtful whether the reclaiming motion is to proceed or not, it
may be that he will allocate an early diet and then receive information that
the reclaiming motion is not to proceed only so late that other business cannot
be allocated to that diet, as has happened here. On the other hand, if an early warning is
given of circumstances which may result in the reclaiming motion not
proceeding, the Keeper of the Rolls can defer allocation of an early diet until
it is clear that such a diet is in fact required. It should be remembered that, where dates for
an early diet are allocated to one set of litigants, but not used by them,
other litigants, are deprived of the opportunity to be heard on those dates. Only by acceptance of the obligation to keep
the Keeper of the Rolls informed of relevant developments can the system of
early disposal be operated effectively, without waste and in a way that is fair
to litigants in general.
