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Roberts v. Chisholm [2004] ScotCS 188 (30 July 2004)

OUTER HOUSE, COURT OF SESSION

PD292/04

OPINION OF LADY PATON

in the cause

PHILIP RAYMOND ROBERTS

Pursuer;

against

SAMUEL CHISHOLM

Defender:

________________

Pursuer: Middleton, Advocate; Thompsons

Defender: No appearance

30 July 2004

New personal injuries rules: failure to lodge summons for calling within three months and a day after signeting
[1] In this action for damages for personal injuries, the pursuer's agents are experiencing difficulty in tracing the defender and serving the summons on him.

[2] The accident occurred on 8 September 2001. The summons was signeted on 24 February 2004. At the beginning of March 2004, messengers-at-arms were instructed to effect service on the defender at his address at 29 Broomhouse Loan, Edinburgh. However by letter dated 16 March 2004, the messengers-at-arms advised that the defender had sold his flat in 2003, and no longer lived there. They were unable to give a forwarding address.

[3] The pursuer's agents then ascertained that the defender's selling agents had been Conveyancing Direct. By letter dated 29 March 2004, the pursuer's agents requested the selling agents to give information about the defender's whereabouts. There was no reply.

[4] Rule 43.3 of Chapter 43 of the Rules of the Court of Session, as substituted by the Act of Sederunt (Rules of the Court of Session Amendment No.2) (Personal Injuries Actions) 2002 (S.S.I. 2002 No.570), provides:

"(1) Where a summons in an action to which this Chapter applies is to be executed, a copy of the summons which has passed the signet shall be -

served on the defender with a citation in Form 43.3 attached to it; and
intimated to any person named in a warrant for intimation.

(2) Where a summons has not called within three months and a day after the date of signeting, the instance shall fall.

(3) Where a summons cannot be served within the period of notice determined in accordance with rule 13.4 and called before the expiry of the period mentioned in paragraph (2), the court may -

on the application of the pursuer by motion; and
on cause shown

extend that period.

(4) An application under paragraph (3) shall be made before the expiry of the period mentioned in paragraph (2)."

[5] It will be seen that the new personal injuries rules impose a much stricter timetable for lodging the summons for calling than the timetable imposed in ordinary actions. In an ordinary action, the period allowed for lodging the summons for calling begins to run only on service of the summons on the defender (and rule 13.7 permits service at any time within a year and a day of the signeting of the summons); in a personal injuries action, the period begins to run as soon as the summons passes the signet. Further, in an ordinary action, the period allowed for lodging the summons for calling is one year and a day; in a personal injuries action, the period allowed by rule 43.3(2) is three months and a day. Thus, as Temporary Judge J. Gordon Reid, Q.C. observed in Jackson v McDougall, 2004 S.L.T. 770, paragraph [10]:

" ... 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."

[6] Matters are made all the more demanding by rules 13.4 and 13.13 of the Rules of the Court of Session (which are not disapplied to personal injuries actions by rule 43.1(3) as substituted by the Act of Sederunt (Rules of the Court of Session Amendment No.4) (Personal Injuries Actions) 2004 (S.S.I. 2004 No.291). Rules 13.4 and 13.13 in effect provide that a summons cannot be lodged for calling until it has been served on the defender. Accordingly in actions to which the new personal injuries rules apply, the period of three months and one day, triggered by the signeting of the summons, may pass very swiftly while agents attempt to find the defender and to serve the summons upon him.

[7] The new rules recognise that it may prove difficult to serve the summons on a defender. Thus rule 43.3(3) permits a pursuer to enrol a motion "on cause shown" to have the period of three months and a day extended. However rule 43.3(4) provides that such a motion must be enrolled before the expiry of the period of three months and a day.

[8] In the present case, the period of three months and a day expired on 25 May 2004. By that date, the summons had not been lodged for calling, and indeed could not be lodged for calling as service had not been effected on the defender. The pursuer's agents failed timeously to enrol a motion seeking to have the period of three months and a day extended in terms of rule 43.3(3) and (4). Accordingly in terms of rule 43.3(2), the instance fell on 25 May 2004.

Relief in terms of rule 2.1
[9] In June 2004, the pursuer's agents enrolled a motion before calling in the following terms:

"On behalf of the pursuer, in respect that the defender has moved away from the address shown in the instance and his present whereabouts are to the pursuer unknown and, further, in respect that the defender was represented by Conveyancing Direct, Clydeway Skypark, 8 Elliot Place, Glasgow G3 8EP in the sale of his residence at 29 Broomhouse Loan, Edinburgh, to ordain said Conveyancing Direct to provide the pursuer's agents with any information which they have in regard to the defender's current address, all in terms of section 1 of the Administration of Justice (Scotland) Act 1972."

[10] The motion came before the court on 25 June 2004. Mr. Middleton, counsel for the pursuer, explained the circumstances, and advised that in terms of rule 43.3(2) the instance had fallen on 25 May 2004. No motion seeking an extension of the period of three months and a day had been enrolled in terms of rule 43.3(3) and (4). The agents had been so focused on their efforts to trace the defender that they had overlooked the requirements of rule 43.3. In view of that oversight, counsel invited the court to exercise the power of relief in rule 2.1, which provides:

"(1) The court may relieve a party from the consequences of a failure to comply with a provision in these rules shown to be due to mistake, oversight or such other excusable cause on such conditions, if any, as the court thinks fit.

(2) Where the court relieves a party from the consequences of a failure to comply with a provision in these rules under paragraph (1), the court may pronounce such interlocutor as it thinks fit to enable the cause to proceed as if the failure to comply with the provision had not occurred."

[11] In support of his motion, counsel drew attention to McDonald v Kwok, 1999 S.L.T. 593 (Lord Macfadyen); Brogan v O'Rourke Limited, 2004 S.L.T. 774 (Temporary Judge T. G. Coutts, Q.C.); and Jackson v McDougall, 2004 S.L.T. 770, (Temporary Judge J. Gordon Reid, Q.C., a case in which leave to reclaim has been granted). In McDonald and Jackson, the dispensing power had been exercised in personal injuries cases where the instance had fallen. However in Brogan, another personal injuries case, the court had refused to grant relief, on the view that the dispensing power could not competently be invoked where the instance had fallen.

[12] Having considered those authorities, I gratefully adopt the reasoning set out in McDonald and Jackson. Rule 43.3 is part of the new Chapter 43 introduced by the Coulsfield Working Party with the intention of creating an efficient practical procedure for the prompt resolution of personal injuries claims without undue delay or procedural technicalities. The exercise of the power to relieve in terms of rule 2.1 in the present circumstances would in my view be wholly consistent with the aim of the new rules. I am also influenced by the fact that in some cases (although not in the present case) time-bar problems may arise if relief is not granted. Further support for the exercise of the relieving power can be found in recent decisions such as Will v Argyll & Clyde Hospitals NHS Trust, 2004 S.L.T. 368 (Temporary Judge T. A. K. Drummond, Q.C.) and Kilna v De La Salle, March 5, 2004 (Lord McEwan).

[13] I am therefore of the view that it is competent to exercise the relieving power in the present circumstances. I consider the agents' oversight to be understandable and excusable, and I am prepared to exercise my discretion by granting relief in terms of rule 2.1. I shall extend the period within which the summons may be lodged for calling until 7 September 2004, when the triennium expires. However the summons cannot be lodged for calling until it has been served on the defender. Accordingly it is important that the agents succeed in tracing the defender prior to the expiry of the triennium. Alternatively, the defender could be designed as "whereabouts currently unknown", with the period of notice being that set out in rule 13.4(d), or possibly any shortened period of notice granted on application to the court.

Pursuer's motion in terms of section 1 of the Administration of Justice (Scotland) Act 1972
[14] In terms of rule 35.1, a motion such as that enrolled by the pursuer's agents can only be made in a cause which is "depending before the court". A cause is depending from the time it is commenced, namely from the time the summons is served on the defender, or a first order in a petition is granted, all as explained in the commentary on the Rules of the Court of Session by Sheriff N. M. P. Morrison, Q.C., paragraphs 35.1.1 and 35.1.2.

[15] In the present case, where the summons has not yet been served on the defender, any application in terms of section 1 of the Administration of Justice (Scotland) Act 1972 must be by way of a petition.

[16] Thus, although I have granted relief in terms of rule 2.1, and although I have extended the period within which the summons may be lodged for calling, I am unable at present to grant the pursuer's motion. Alternative steps will have to be taken by those advising the pursuer.

[17] As noted above, leave to reclaim has been granted in the case of Jackson v McDougall. An authoritative ruling on the appropriateness of the exercise of the dispensing power under rule 2.1 in relation to an instance falling in terms of rule 43.3 may therefore shortly be available. At this stage, it cannot be said with any certainty which approach to the use of the dispensing power the Inner House will adopt. Accordingly in a case such as the present, where there is as yet no time-bar problem, the pursuer might wish to consider raising a fresh summons designing the defender's current whereabouts as unknown, and thereafter continuing to try to trace the defender by all possible means.