Scottish Sheriff Court Decisions

(3) Since time is crucial to the matters debated before me I consider it best to set out the essential elements in relation to the chronology of the action.

(4) In terms of Condescendence 2 the incident giving rise to the proceedings, namely the alleged fall within the Defenders' premises which is said to have resulted in injury occurred on 20 March 1998. A claim was apparently intimated to the Defenders' loss adjusters in April 1999 and proceedings raised by service of a writ in March 2000 against David and Sandra Young trading as the Marquee Nightclub.

(9) On 4 June 2002 an Options Hearing took place before the same Sheriff when a Record was received which designed the Defenders in amended terms shown in the instance hereof.

(10) The case was continued to an Options Hearing on 4 July 2002 and the Defenders' pleas-in-law were reserved meantime.

(12) Mr Boyle referred to correspondence showing that parties continued to communicate with one another up until 19 December 2000.

(18) The Court then had to consider whether to exercise its discretion to override this time limit in terms of Section 19A(1) of the 1973 Act which states:-

"Where a person would be entitled, but for any of the provisions of Section 17.....of this Act, to bring an action, the Court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision."

(19) I was referred to Beaton -v- Strathclyde Buses Ltd, 1993 SLT 931. In that case Lord McCluskey referred to Elliot -v- J & C Finney 1989 SLT 208 and Nicol -v- British Steel Corporation (General Steels) Ltd 1992 SLT 141 when considering the discretion interest in S. 19A of the 1973 Act. At page 932C Lord McCluskey said:-

(21) Mr Boyle invited me to hold that no service had taken place on the parties following the Sheriff's interlocutor of 20 July 2000 esto the action had not commenced timeously and the court's discretion should not be deployed in terms of S. 19A of the 1973 Act in view of the delay which had taken place following the expiry of the time limit on 20 March 2001 and the further procedure which had taken place in the action from 22 April 2002.

(22) Mr Bell referred me to Thompson -v- Wiggins Teape Ltd 1981 SLT 85 where Sheriff, later Sheriff Principal Risk held that the defenders in that case were barred from disputing the validity of the purported citation by their subsequent actings in entering appearance in the proceedings. There had been a failure to serve a copy of the initial writ and only a copy of the pursuer's legal aid memorandum had been served within the triennium.

(23) Similarly in Struthers -v- Magistrates of Kirkintilloch 1981 SLT (Notes) 27 the Inner House held that the omission of a citation form when service of the initial writs had been effected was not a fundamental nullity, Lord President Cooper referred to Rule 13 appended to the Sheriff Courts Act 1907 which is in similar terms to rule 5.10 referred to in paragraph (16) above. His Lordship stated:- "Nothing could be plainer than these comprehensive words, and so far as I am aware there have been no decisions of the court leading to restrict the amplitude of this application."

The simple purpose of citation is to convene a defender before the Court, and once he has in fact been convened and before the Court, it matters not how the appearance is secured."

"It has been suggested that the proper course for a defender who is irregularly cited and does not choose to waive the point by appearing is either to ignore the citation or to return it to the sender and, if the Pursuer proceeds to take decree in absence, to raise a suspension or reduction."

(25) By their actions in purporting to resurrect the proceedings both defenders had effectively accepted service. Since this "service" had occurred outwith the triennium it was a matter of the court exercising its discretionary power under Section 19A of the 1973 Act. The authorities were to the effect that each case ought to be decided on its merits and the Court was given power to override the time limit "if it seems to it equitable to do so".

(26) In the present case a claim had been intimated by April 1999 and the action had been raised timeously well within the 3-year period and thereafter there had been a variation taken in relation to the names of the defenders. No prejudice had arisen to the Defenders in that regard.

(27) The pursuer was not without a remedy in that if these proceedings were time-barred, an action could be raised against the pursuer's solicitors if their fault reached the level of professional negligence. In this case however both parties thought the action had been sisted and it was clear that the proceedings had "come off the rails" in July 2000.

(28) In the other cases which arose in this context there had been no court actings prior to the triennium. In the present case it was clear from the pleadings in condescendence 4 and the correspondence which had been lodged to support it that the pursuers had made repeated requests to the defenders' loss adjusters seeking full details of their clients' designations.

(29) It was Mr Bell's contention that since both parties had mistakenly thought the proceedings had been sisted the circumstances did not amount to a prima facie case of negligence against the pursuer's solicitors and accordingly it would be equitable to allow the pursuer to override the time-bar.

(30) The pursuer might not have another remedy as the fault lay on both sides in these proceedings, albeit the action had been instructed timeously. A balance had to be struck by the Court in deciding whether to exercise the discretion afforded by Section 19A.

(31) While there had inevitably been the passage of time since the date of the alleged incident there was no suggestion of prejudice to the defenders. A claim had been intimated at an early stage and it was clear that the loss adjusters had carried out their enquiries relatively quickly thereafter.

(46) Subheadings (iii) and (v) above can be considered as in the case of Anderson (supra) as aspects of the conduct of the parties. As I have indicated, after the continued Options Hearing on 20 July 2000 parties corresponded until the end of the year but nothing happened thereafter. Since a motion to sist had been specifically refused in July 2000 it was a matter for the Pursuer to regularise the proceedings by serving documents on the parties. Negotiations did continue until the end of 2000 but no formal steps were taken prior to the expiry of the triennium on 20 March 2001. Indeed it was left to the Defenders to bring the action back to court for further procedures.

(47) By contrast the Defenders had been in correspondence with the Pursuers during the second half of 2000 and when no further correspondence was forthcoming were entitled to await the service of documents at some stage prior to the expiry of the triennium.

(48) While it is clear from the terms of Rule 5.10(1) of the Ordinary Cause Rules 1993 referred to at paragraph (16) above and the cases mentioned at paragraphs (22) and (23) above that appearance in a case can remedy all manner of defects in most situations where a Defender has received defective citation, failing to appear may often result in decree being granted and thereafter steps have to be taken for recall etc.

(49) In the present case standing the terms of the interlocutor of 20 July 2000 the ball was entirely in the Pursuer's court and the Defenders did not require to do anything until cited.

(50) I appreciate that new personnel were involved on the Defenders' as well as the Pursuer's side but the motion "to recall the sist of December 2000" seems to have been drafted following the most cursory glance at the earlier papers.

(51) So far as criterion (i) is concerned, prejudice to the Pursuer, undoubtedly if the discretionary power contained in section 19A of the Act of 1973 is not exercised the Pursuer will be prejudiced to the extent that the action is lost. In this case the Pursuer is legally aided and will have no personal liability for any costs arising.

(52) With regard to criterion (iv), prejudice to the Defenders, Mr Boyle fairly indicated that there was no specific prejudice he could point to. Mr Bell had mentioned that the Defenders' loss adjusters had investigated the claim during 1999 and had prepared a report and taken photographs of the locus. Despite the changes in the names of the Defenders there was the continuity of the same set of solicitors throughout and to that extent any prejudice would be minimal. There is however the difficulty that lay witnesses might have in recalling events which had occurred 5 years previously. There would however be prejudice to the Defenders to the extent that they would lose the instant and complete defence to the action afforded them by section 17 of the Act of 1973 if the Court exercised the discretionary power contained in Section 19A, in the Pursuer's favour.

(53) The actual period of delay between the expiry of the triennium and the "raising" of the action against the Defenders as now designed was a period of 13 months. This could not be said to be an oversight and notwithstanding the interlocutor of 20 July 2000 nothing appeared to have happened to the Pursuer's case from December 2000 until the Motion to Recall the purported sist was lodged by the Defenders in April 2002.

(54) Delay in pressing ahead with the action following the service of the summons in March 2000 against the Defenders as originally designed; This aspect takes one back to the interlocutor of 20 June 2000 and the order of the court to serve on parties as now designed which was never done and indeed further procedure in the action came as a result of the Defenders' actings.

(55) There was no indication that any of the delays were attributable to the Pursuer personally as it appeared from correspondence lodged during the debate and the process that the Pursuer had made herself available for medical examinations so that an assessment could be made of her injuries. Although given the passage of time since those examinations in 2000 it would not be unreasonable to expect a pursuer to be asking about progress in the action.

(56) The possible existence of an alternative claim available to the Pursuer against her solicitors. Mr Bell's submission was to the effect that if I found against the Pursuer then any claim against the solicitors would not be without its complexities.

(57) However it is clear that the Pursuer instructed her solicitors to intimate a claim and raise proceedings well within the triennium and made herself available to parties for medical examinations. No explanation was forthcoming from Mr Bell as to why the Pursuer's solicitors had done nothing to progress the case from December 2000 until the case was effectively re-activated by the Defenders in April 2002. Indeed given that the correspondence indicated settlement negotiations had been in contemplation it was possible to conclude, coupled with the grant of legal aid to the Pursuer that there must have been some prospects of success on paper and there would seem to be a clear case for negligence against the Pursuer's solicitors given the delay and the failure to observe the triennium. There are for example well recognised risk management techniques applied throughout the solicitors' profession to ensure appropriate steps are taken before time limits such as trienniums pass. Similarly regular reviews of files ought to avoid a file becoming dormant for more than a year as appeared to have occurred between December 2000 and April 2002.

(58) Mr Bell suggested that since the Anderson (supra) and Wilson (supra) cases, the European Convention on Human Rights had been incorporated into our law and had to be taken into consideration also, so that the Pursuer could have "determination of her civil rights and obligations" in terms of Article 6.

(59) That Article does go on to indicate that "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law"; (my emphasis).

(60) In this context one has to consider whether the case involved such an unreasonable delay that in the absence of a clear explanation, breach of Article 6 was the obvious inference. The starting point must be the statutory framework provided by Sections 17 and 19A of the 1973 Act.

(61) For obvious reasons actions should be raised promptly within the triennium wherever possible. While the Pursuer has a right under Article 6 to a fair and public hearing this is conditional on the matter being dealt with in a reasonable time and to that extent the Defenders have a right to expect a claim made against them to be determined within such a timescale.

(62) Were the action to proceed the earliest a proof could take place would be over 5 years after the alleged incident. Given the difficulties lay witnesses have in recollecting details for evidence after 1-2 years it seems likely that witnesses speaking to facts, other than perhaps the Pursuer, would be challenged to recall relevant details after this lapse of time.

(63) It is apparent from the instance that since the alleged incident the premises have changed name and ownership. It is reasonable to conclude that the décor if not the layout of the premises may have changed in the interim which might make it difficult to adduce suitable evidence and determine the condition of the premises at the relevant place 5 years ago.

(64) In any event no authority was cited by the Pursuer in support of this point. There is, of course, a substantial body of case-law in relation to whether criminal trials are to take place within a reasonable time. Ultimately in this context I have to consider whether it is equitable to exercise the Court's discretion under Section 19A of the 1973 Act. The onus is on the Pursuer here and I am drawn back to considering the lengthy period - far longer than in any of the other cases I was referred to before proceedings could be said to have been raised against the Defenders. Furthermore no explanation was forthcoming for this delay.

(65) In all of the circumstances I have described above I have concluded that it would not be equitable to allow the Pursuer to continue this action. Accordingly I shall sustain the Defenders' second plea-in-law and dismiss the action.

(68) Instead the Defenders sought to recall a purported sist and it took 2 further hearings before the correct preliminary plea was lodged and a diet of debate fixed.

(69) Accordingly, in these circumstances, I have decided that no expenses should be awarded to or due by the Parties.