Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jackson v. McDougall [2004] ScotCS 143 (16 June 2004)
URL: http://www.bailii.org/scot/cases/ScotCS/2004/143.html
Cite as: [2004] ScotCS 143

[New search] [Help]

Jackson v. McDougall [2004] ScotCS 143 (16 June 2004)

OUTER HOUSE, COURT OF SESSION

PD109/03

OPINION OF J. GORDON REID, Q.C.

F.C.I.Arb.

(Sitting as a Temporary Judge)

in the cause

SIMON JOHN JACKSON

Pursuer;

against

ALISTAIR McDOUGALL

Defender:

________________

Act: Grant-Hutchison; Macbeth Currie

Alt: Clancy, Q.C.; Henderson Boyd Jackson, W.S.

16 June 2004

Introduction
[1] The Pursuer sues for damages for personal injuries. Through ignorance, on the part of his solicitor, of one of the new Rules of Court applicable to such actions from 1 April 2003 in terms of the Act of Sederunt (Rules of the Court of Session Amendment No. 2) (Personal Injuries Actions) 2002 SSI 2002 No.570, the summons was not lodged for calling within three months and a day after the date of signeting. As a result of such failure, the instance falls (RC 43.3(2)). The Pursuer has enrolled a motion to allow the summons to be called late and relies upon the dispensing power contained in RC 2.1. The Defender challenges the competency of the motion and argues that, in any event, the Court's discretion should not be exercised in favour of the pursuer. If the motion is refused, a fresh action will, prima facie, be time barred and the Pursuer will require successfully to invoke section 19A of the Prescription and Limitation (Scotland) Act 1973 to enable such an action to proceed.

Factual Background.
[2] The accident upon which the action is based occurred on 12May 2000. The summons was signeted on 9 May 2003. The Defender's solicitor accepted service on the same day. The Pursuer's Edinburgh solicitor, in error, made a diary entry to check the case no later than April 2004 to ensure that the summons was lodged within a year and a day from signeting (and, presumably, service). However, the summons should have been lodged within three months and a day. By letter dated 4 June 2003, the Pursuer's Edinburgh solicitor informed the Defender's solicitor that it was not proposed to lodge the summons for calling until the Pursuer's application for Legal Aid had been determined. There was no reply to this letter. The Pursuer's legal aid application was refused on or about 10 June 2003. The Pursuer's Edinburgh solicitors were unaware of this. It is common practice to seek a review by the Scottish Legal Aid Board (SLAB) of the refusal of Legal Aid. This was done by the Pursuer's local solicitor. Legal Aid, restricted to the Sheriff Court, was eventually granted in December 2003. SLAB intimated the grant to the Defender's Edinburgh solicitors and to the Pursuer's local solicitor. The Pursuer's Edinburgh solicitors did not become aware of the grant until February 2004, following a reminder by them to the local solicitor of the need to lodge the summons for calling by early May. In April, the Pursuer's Edinburgh solicitors attempted to lodge the summons for calling and to have the cause remitted to the Sheriff Court. It was only then that they realised that the summons should have been lodged for calling within three months and a day of the date of signeting, rather than a year and a day after service

Submissions

(a) Competency

[3] Mr Grant-Hutchison for the Pursuer submitted that the motion was competent under reference to McDonald v Kwok 1999 SLT 593 at 595H-L. Ignorance of the rule fell within the scope of the dispensing power (Sutherland v Duncan 1996 SLT 428 at 428 I).

[4] Mr Clancy, for the defender, recognised that he had to persuade me that McDonald and the cases which followed the approach of Lord Macfadyen therein, (such as Kilna v De La Salle 5/3/04, Lord McEwan - where Lord Macfadyen's analysis and reasoning were expressly approved and applied [para 6], and Will v Argyll & Clyde Acute Hospitals NHS Trust 2004 SLT 368) were wrong. His broad submission was that RC 43.3(2) was unique; failure to comply with it brings the action completely to an end so that the Court's dispensing power cannot be invoked. He referred to the opinion of Lord President Inglis in McKidd v Manson (1882) 9R 790 at 791 where his Lordship stated:-

"The rule is that if, after a summons is served, it is not called within a year and a day of the last day of compearance, the summons is at an end- it has no existence whatever."

[5] Mr Clancy submitted that Lord Macfadyen had failed to tackle how his approach could be reconciled with the absolute rule expressed by Lord President Inglis. He also referred to Thomson & Middleton Manual of Court of Session Practice page 71, Robb & Crosby v Forbes 1911 27 Sh Ct Rep 162 noting that the phraseology of the comparable Sheriff Court rule was different by reason of the reference to "dropping from the Roll". He also argued that the issue in the present case was not decided in Grier v Wimpey Plant and Transport Ltd 1994 SC 385 at 393B 1994 SLT 714 at 719 I-J. Protestation was irrelevant. The defender here was in the same position as if he had obtained a declarator under RC 13.14(3)(a). The rule, as expressed in McKidd and subsequently reflected in Rules of Court, is mandatory; any intention to alter the mandatory nature of the rule would have been expressed in the Rules of Court and this has not been done. He argued that failure to observe a Rule of Court had different consequences depending upon the rule. Sometimes, nothing happened until a party seeks to remedy the situation, eg late compliance such as lodging a step in process or a production; failure to enter appearance may render party to liable to decree by default but until an application is made the action is in dependence. He further illustrated the point by reference to the rules relating to Abandonment (RC 29) and reclaiming motions (RC 38.19(4)).

(b) Merits
[6] Initially, Mr Grant-Hutchison sought to dilute the effect of the failure by referring to the Working Party's Report in relation to the then proposed rules for personal injury actions, to the Court of Session Practice Note No 2 of 2003 and to a published Note by Lord Coulsfield about seminars in relation to the New Rules, to show that in none of these documents was the new provision about lodging the summons for calling within three months and a day of signeting highlighted. He submitted that ignorance of a rule could be excused under RC 2.1 (Sutherland v Duncan 1996 SLT 428 at K-L). If the motion is refused, a fresh action will be exposed to a plea of time bar and section 19A will have to be relied upon. While the Pursuer might have a remedy against his solicitors there will be inevitable delays and problems. By contrast, there was no prejudice to the defenders. They had investigated the claim. He referred to a letter dated 12/5/03 in which the Defender's solicitor commented on the merits. This, he said, was a comparatively straightforward action, with only two possible witnesses apart from the parties.

[7] Mr Clancy criticised the pursuer for not being clear as to their position particularly having regard to the terms of the Motion. Was it oversight or mistake? The delay between December 2003 and April 2004 was unexplained. Under the new rules, parties were not allowed to litigate at their own pace. By raising the action almost at the expiry of the triennium, the pursuer was sailing close to the wind. Insofar as the pursuer sought to mitigate the failure, the explanation was "lame". The solicitors could not realistically resist a claim for damages based on professional negligence if the action becomes time barred. The period of non compliance was relatively long and this counts against exercise of the Court's discretion in the Pursuer's favour. The changes to the existing Rules of Court are plainly set out in RC 43.1(3)(f) and RC 43.3(2). The only prejudice which the defender could found upon is the loss of the right to end the action.

DECISION

(a) Competency
[8] The starting point must be the terms of RC 2.1. Its terms appear to be all embracing. No Rule is expressly excluded from its scope. In these circumstances, the motion should be competent. Mr Clancy argues, in effect, that there is something special or fundamental about the rule in question which makes it immune from the operation RC2.1. While such an argument is attractive and was ably presented, it is, in my opinion, unsound. The Rules of the Court of Session are or are intended to be a comprehensive code covering all, or at least most, essential matters of Court of Session practice and procedure. The rule relating to calling of a summons is but one of many rules which impose time limits for the lodging of papers at various stages of the progress of an action. In my opinion, the all embracing nature or RC 2.1 is consistent with the principles and practices which the Court has applied before those principles and practices were codified in comprehensive Rules of Court. The Court has generally been reluctant to sustain technical objections and penalise a party in default in some respect, which flows from unintentional error rather than dilatory tactics. An Act of Sederunt has not precluded the Court, in the past, from granting relief from its terms where it is in the interests of justice to do so.

[9] There are, however, some rules from which it is virtually inconceivable that the Court would authorise a departure under RC 2.1. For example, RC 13.5(1) provides that a summons shall pass the signet. A signeted summons is a pursuer's authority for service on the defender. Suppose a pursuer serves a summons without having it signeted. Can the Court relieve him from the consequences of that failure? In theory, RC 2.1 is wide enough; therefore an application to do so must be competent. On the face of it, this is but a procedural step in the course of raising and proceeding with an action. However, it seems to me to be inconceivable that the Court would ever relieve a party of the consequences of failing to have the summons signeted before serving the summons. Likewise, it is difficult to see how a pursuer could ever be relieved of the consequences of failure to serve a summons by one method or another (unless his opponent accepts or is deemed to have accepted service). Such a procedural step also seems to be fundamental. However, the notion of identifying rules which are fundamental and therefore by their nature excluded from the otherwise all embracing terms of RC 2.1 is a difficult one. It would lead to uncertainty and confusion. If the code embodied in the current Rules of Court intended to classify certain rules as being exempt from the application of RC 2.1 it would have been a simple exercise to specify such rules. This has not been done. In my opinion, the relative importance or fundamental nature and underlying purpose of a rule is a matter to be taken into account when considering whether to relieve a party from the consequences of failure to comply with a provision in the Rules. The vast majority of the Rules of Court will not, however, be so important that the application of RC2.1 in relation to a failure to comply with them is almost inconceivable. In most situations, the Rule under consideration will impose some form of time limit pendent lite. There, it is plain that RC 2.1 may competently be invoked. Whether it will be invoked will depend upon the circumstances of each case. The starting point will be that parties who come to court should abide by the rules, and that a party is entitled to expect that his opponent will do so and that he will not be prejudiced by his opponent's failure to do so.

[10] There are a number rules which require consideration. Under RC13.7(2) where service of a summons is not executed within a year and a day after the date of signeting, the instance shall fall. This rule does not apply to actions of damages for personal injuries (RC 43.1(3)(f)). Under RC 13.13(6) where a summons has not called within a year and a day after the expiry of the period of notice, the instance shall fall. Typically, the period of notice is 21 days from the date of execution of service (see RC 13.4(1)(a)). The equivalent rule under the new rules in personal injury actions is RC 43.3(1). Accordingly, in an ordinary action, the summons may, if service is postponed for almost a year, competently be lodged for calling about two years after the date on which it passes the signet. Under the new rules applicable to personal injury actions, the summons must be lodged for calling within three months and a day after the summons passes the signet. The timeous lodging of the summons for calling is linked to the signeting of the summons, not its service on the defender. In the event of failure, the rule again provides that the instance shall fall (RC 43.3(2)). In the present case, the pursuer seeks to lodge the summons for calling about a year after signeting. In an ordinary action, the timeous combination of service and lodging the summons would enable the summons to be lodge for calling about two years after signeting. In that context, it might be thought that a failure to have a summons called within three months and a day after the date of signeting but within about a year thereof, should not automatically lead to the action being brought to an end if there is an excusable explanation for that failure.

[11] The consequence from which the pursuer seeks relief is that the instance has fallen. What this means is explained in McKidd (above). The rule is set forth in an Act of Sederunt of 1831 and has its origins in practice from earlier times (see e.g. Erskine's Institutes IV. 1.8). The historical basis for the rule is simply administrative convenience of the court and the parties. Its intention seems to have been related to avoiding parties attending court every day while the court was in session until their case was dealt with. If the case was not called in court within a year and a day of the date of the summons, then a fresh summons was required. It is not entirely clear whether time ran from the date of signeting or the date of compearance. The rule, like so many procedural rules, is geared towards the expeditious and economic dispatch of court business. It was and is an administrative expedient to encourage the timeous lodging of court papers. It does not, it seems to me fall into the same category as the rule requiring a summons to pass the signet, although it may be noted that calling does have significance for the purposes of prescription (see Prescription and Limitation (Scotland) Act 1973 section 9(4) and 4(2)(a)). Where a pursuer fails timeously to lodge a summons for calling, the summons does not actually "have no existence whatever". It plainly still has the same reality it had immediately before the expiry of the time limit. By reason of one procedural rule among many in our codified rules, no further step may be taken until another procedural rule is invoked. Whether any further steps are allowed to be taken, depends upon whether the reason for the failure falls within the terms of the Court's dispensing power and the exercise of the Court's discretion. Accordingly, even if I were to accept the consequence of Mr Clancy's submission that RC 2.1 did not apply to some rules, I do not consider that RC 43.3(2) or, for that matter RC 13.13(6), is currently such a rule.

[12] In McDonald the argument which prevailed was that Rule 2.1 may competently be invoked to relieve a party from the consequences of any failure to comply with any provision of the rules. (594E-F; 596B-C). In Kilna, Lord McEwan adopted and applied Lord Macfadyen's analysis and reasoning. In Robb law agents sued for payment of their accounts. The defender pled lis alibi pendens on the basis that, in an earlier action for payment of the same accounts, service had taken place, a note of appearance had been lodged, but the action had not thereafter tabled. The issue was whether the first action was asleep and capable of being wakened. The Sheriff held that, under the Sheriff Court rules, no interlocutor had been pronounced and so Rule 101 (which provided that if no interlocutor is pronounced for a year and a day the cause is held to have fallen asleep) did not apply; the cause had therefore not fallen asleep; Rule 35 (which provided for enrolling for tabling within three months of the cause dropping from the Roll) did not apply as more than three months and more than one year and a day had elapsed. The pursuer could not revive the action so the pursuer was entitled to raise a fresh action; the plea of lis alibi pendens fell to be repelled. In my opinion, this case does not assist the defender simply because no consideration was given to the question of relief from the consequences of the inactivity in the earlier action. The argument was highly technical and it was plainly just and in the interests of expedition and economy that the current action, in which defences had been lodged and progress made, should be allowed to proceed. The defender was not prejudiced by the procedural state of the earlier action, and the court could no doubt have been astute to ensure that the defender did not suffer double jeopardy if the pursuer for some reason sought to revive the earlier action at a later stage.

[13] In Grier, the underlying agenda was also time bar. The pursuer lodged a motion to table the cause outwith the three month period. The motion was made within a year and a day of the service of the initial writ. It was argued that on expiry of the three month period the action came to an end and had no continuing existence. A Full Bench, relying upon the equivalent dispensing powers in the Sheriff Court Rules, was not persuaded that the Sheriff became functus merely because the original action had dropped from the roll (1994 SC at 393B, 1994 SLT at 719 I-J). The Court observed that it was unnecessary to decide whether the Sheriff in Robb was correct to state that once the original action had dropped from the Roll it had no continuing existence. This must be because whatever the status of the action, the position could be rectified by the application of the Court's dispensing power. In these circumstances, I am unable to accept Mr Clancy's submission that Grier did not decide the point at issue in the present case. That statement in Grier is part of the ratio of the decision and I am bound by it. Grier formed part of the Court's reasoning process in McDonald.
[14] I agree with Mr Clancy that the question of Protestation under RC 13.14 (not disapplied by RC 43.1(3)) is irrelevant for present purposes. Protestation can never arise after the lapse of a year and a day after the expiry of the period of notice, because the object of the exercise of protestation, namely a declarator that the instance has fallen, is already achieved under RC 13.13(6). The only difference is that RC2.1 applies to 13.13(6) whereas the grant of a declarator under RC 13.14(3) is a final interlocutor which is not subject to review (13.14(4)). In practice, a defender will rarely invoke the Protestation procedure, will prefer to "let sleeping dogs lie" and, if necessary, resist any attempt to invoke RC 2.1. A defender will no doubt be comforted by the fact that the prospect of a pursuer successfully invoking RC 2.1 more than a year after the service of the summons and possibly more than two years after signeting will fade rapidly with the passage of time (cf McDonald at page 596B). It may be that, in the interests of clarity and certainty, such a prospect should be eliminated by excluding RC 13.13(6) from the ambit of RC 2.1. That is a matter for the Rules Council and other interested parties. Whether RC 43.3(2), where the period is significantly shorter, should also be excluded, is, perhaps more questionable.

Merits
[15] In my opinion, it is in the interests of justice that the motion be granted (cf Semple at 2002 SLT para 10). The Pursuer's solicitor was plainly ignorant of the new rule. There was a system in operation, a safety net, whereby cases that had not been lodged for calling as the deadline approached, would be picked up and dealt with. Unfortunately, the wrong deadline was recorded; such ignorance of the provisions of a Rule normally falls within the ambit of the Court's dispensing power under RC 2.1 (Sutherland above and Grier at 1994 SC 392D and 1994 SLT 719E-F).

[16] While the period of non-compliance is relatively long, this is entirely explicable by and consistent with the nature of the error. In balancing the various factors, it seems to me that it would, in this case, be unjust, if the defender were allowed to benefit from such a procedural mishap by forcing the pursuer to peril his case on the application of section 19A, where the obvious availability of a claim against his solicitor may be an important factor. This may put him in a weak bargaining position in any settlement negotiations with the present defender; the need to raise a fresh action will inevitably cause some delay. The pursuer might wish to change solicitors. He may again have to apply for Legal Aid. On the other hand, the defender appears to have investigated the accident. The passage of time that has elapsed thus far does not appear to have prejudiced him. While balancing prejudice hinc inde may not be the sole criterion in considering the exercise of the Court's dispensing power, it is a relevant consideration (cf Semple at para 11 page 1124 I). Moreover, if the pursuer's action is well founded in fact and law, the granting of this motion will enable his loss to rest with the party truly responsible for it, rather than at the door of his solicitors, whose liability may not be commensurate with the liability of the defender, and may be more difficult to quantify.

[17] Furthermore, the pursuit of stale claims is a matter which should principally be controlled by the substantive law of Prescription and Limitation rather than the Rules of Court, whether directly or indirectly. Procedural rules, being the machinery of the law, should facilitate rather than obstruct legal rights. In all the circumstances, I consider it just that the motion should be granted. The change in the rules has been highlighted by this and another recent case. This will make it increasingly difficult for a pursuer's solicitor successfully to invoke the Court's dispensing power to obtain relief from the consequences of failing timeously to have a summons called in accordance with Chapter 43 of the Rules of Court.

Summary

1 Rule of Court 43.3(2) is not excluded from the scope of Rule of Court 2.1

2 The pursuer has established that his failure to comply with Rule of Court 43.3(2) was due to mistake by reason of his solicitor's ignorance of the terms of that rule and the time limit thereby imposed.

3 The motion is therefore competent and the ground advanced in support of it is relevant.

4 It is in the interests of justice that the pursuer be relieved from the consequences of his failure to comply with the provisions of Rule of Court 43.3(2).

Result
[18] I shall therefore relieve the pursuer from the consequences of his failure to comply with the provisions of RC 43.3(2) and pronounce an interlocutor allowing the summons to call late, thus enabling the cause to proceed as if the failure to comply with that provision had not occurred. I shall reserve meantime, all questions of expenses in relation to this motion.