Scottish Court of Session Decisions

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Will v. Argyll Clyde Acute Hospitals NHS Trust [2004] ScotCS 74 (19 March 2004)
URL: http://www.bailii.org/scot/cases/ScotCS/2004/74.html
Cite as: 2004 SCLR 642, [2004] ScotCS 74

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Will v. Argyll Clyde Acute Hospitals NHS Trust [2004] ScotCS 74 (19 March 2004)

OUTER HOUSE, COURT OF SESSION
A18/02	OPINION OF T A K DRUMMOND, QC Sitting as a Temporary Judge in the cause SUSAN WILL Pursuer; against ARGYLL & CLYDE ACUTE HOSPITALS NHS TRUST Defenders:   ________________

 

 

Pursuer: A Smith, QC; Drummond Miller, WS

Defenders: Arthurson; R F MacDonald, Solicitor to Scottish Health Service

 

19 March 2004

[1]      This is an action for damages for personal injuries resulting from alleged medical negligence. The summons was signetted in January 2002 and was served on the Defenders on 7 January 2002. 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 the Court of Session 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 (first) as being incompetent and (second) in any event the failure to comply with the Rule is not excusable.

[2]      Rule 2.1 provides that the Court may relieve a party from the consequences of a failure to comply with a provision of the rules shown to be due to mistake, oversight or such other excusable cause on such conditions, if any, as the Court thinks fit. Rule 13.13(6) provides that where a summons has not called within a year and a day after expiry of the period of notice the instance shall fall.

[3]      Senior counsel for the Pursuer moved that I should exercise the dispensing power in Rule 2.1, submitting that the failure to lodge the summons for calling was due to an admitted oversight and, in circumstances where it was said that both parties were erroneously under the impression that the cause was sisted.

[4]      Senior counsel referred me to a chronology of events which I do not find it necessary to rehearse in detail. Suffice it to say for the present purposes that the summons was served on 7 January 2002. Due to an oversight on the part on a highly experienced clerkess in the Pursuer's solicitor's office, the agents for both parties proceeded thereafter on the basis that the action had been sisted. On 4 January 2002 the summons was sent by the Pursuer's firm of solicitors to the Central Legal Office with a covering letter stating that "... it would be my intention to enrol a motion seeking to sist the cause for my client's legal aid application to be determined on calling of the Summons." A good deal of work was thereafter undertaken by way of preparation during the intervening period of time.

[5]      The diagnosis which is the subject matter of the action took place on 11 January 1999: the triennium expired on 11 January 2002 without the case having been called: on 8 January 2003 a year and a day expired since service of the summons. It was not until 2 February 2004 that the failure was discovered and immediate steps were taken to remedy the situation by the enrolling of this motion.

[6]      It was submitted that the Pursuer herself is entirely blameless, that the case involves serious allegations of negligence against a doctor; there is a medical report supporting negligence and the solicitors for the Pursuer will entirely accept that the failure was their fault. The clerkess concerned is a highly experienced practitioner who processes some 10-12 summonses per month and in 15 years has never made such an error which could only be explained by her having been momentarily distracted.

[7]      If the motion is refused, the Pursuer will require to go to new solicitors: they will require to re-raise the action in reliance on Section 19A of the Prescription and Limitation (Scotland) Act 1973: they may succeed and matters will be further delayed for up to two years.

[8]      It was submitted that what was being sought to be done was not invoking the dispensing power to override a statutory protection: the rule is there to excuse procedural irregularities which, it was said, is what this is.

[9]      It was said that any prejudice is negligible and presupposes the failure of a motion under Section 19A.

[10]      I was referred to McDonald v Kwok 1999 SLT 593, where Lord Macfadyen's reasoning in respect of the application of Rule of Court 2.1 was adopted in it's entirety. Senior counsel also relied on Fraser v Caledon Shipbuilding A3718/01 and finally Colley v Celtic Pacific Ship Management (Overseas) Limited 6 October 2000 for the proposition that each exercise of discretion turns on its own facts.

[11]      Counsel for the Defender indicated at the outset that the letters referred to in the chronology were not disputed but that others required to be added thereto in order to appreciate the complete picture.

[12]      It was submitted on behalf of the Defender that Lord Macfadyen's reasoning in McDonald v Kwok was in error and in any event it was not binding on me and should not be followed.

[13]      I was referred to McKidd v Morrison 9R 790 where at 791 LP Inglis observed

"It is not disputed that in this court the rule has been fixed from an early period. The rule is that if, after a summons has been 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 whatsoever."

This was submitted to be the correct statement of the law and the approach adopted by Lord Macfadyen in McDonald was new and flawed.

[14]      I was referred also to Cumming v Munro 12 Shaw 61 which pre-dated McKidd. Counsel then examined Lord Macfadyen's reasoning in McDonald by reference to Grier v Wimpey Plant and Transport Limited 1994 SC 385 and X v Dumfries & Galloway Regional Council 1994 SC 498, which were considered in McDonald. To the extent that support was said to be derived from them in McDonald it was submitted that these cases proceeded on an entirely different basis and that further and to the extent that reliance was placed upon the remedy of protestation in terms of Rule of Court 13.14 in McDonald it was said that protestation is not a remedy for the Defender but serves as a reminder to the Pursuer.

[15]      In the present case the diagnosis giving rise to the action was on 11 January 1999: the triennium expired in January 2002: a year and day thereafter brings the relevant date to January 2003. The summons in this case was lodged timeously to meet the triennium and the provision relating to a year and a day gives and extra year for free, as it was put. We are now at February 2004 which is some two years after the expiry of the triennium.

[16]      Defences will be required and it will probably be late 2005 before the matter comes to proof in respect of what is said to be a failure of diagnosis in 1998.

[17]      In terms of Article 6 of the European Convention on Human Rights, parties are entitled to a fair trial within a reasonable time. The lapse of time in this case would not be a reasonable time and the Defender's Convention rights would be breached. Delay cases in terms of ECHR were not argued in McDonald v Kwok which reinforces the Defender's position in the present circumstances.

[18]      Counsel then submitted that the Court was being invited to extend the grant of the dispensing power further than it has ever been taken and Lord Macfadyen recognised in McDonald that it is plain that with the passage of time the prospect of successful invocation of the dispensing power fades to negligibility. Accordingly, esto it was competent to do so, relief should not be granted in the circumstances of this case. I was referred to Fraser v Caledon Shipbuilding and Engineering Company Limited, 19 August 2003 where it was said that the Pursuer was one step ahead of the circumstances of this case in that a calling had been fixed: it was said that in Fraser the motion was unopposed, the Pursuer had lodged the summons for calling, but notwithstanding these facts the unopposed motion was granted "with some considerable hesitation". The Pursuer there was blameless: so too was the Pursuer in this case but is responsible for the acting of her agents.

[19]      Turning to the exercise of the discretion in the present case, it was further submitted that there is real and substantial prejudice to the Defender who will lose an irresistible defence of time bar to the extent that the right to argue time bar will be lost. The Pursuer will require to raise a fresh action and rely upon Section 19A of the Prescription and Limitation (Scotland) Act 1973. In the event of the refusal of a Section 19A motion, she will require to raise an action against her solicitor. The prejudice to her solicitors should not be taken into account.

[20]      It was said that the first the Defender's agents knew that the summons had not been lodged for calling was on receipt of a letter dated 28 January 2004 from the Pursuer's solicitors. I was referred to Donald v Rutherford1984 SLT 70 for the factors which should be taken into account in the exercise of this discretion. Reference was made to the history of that case as set out at page 77 of the report and while Donald was concerned with the operation of Section 19A it is demonstrative of the approach taken by the Inner House in the exercise of discretion and the weighing of the contrasting prejudices.

[21]      In support of the ECHR point I was referred to Karl Construction Limited v Palisade Properties 2002 SLT 312, HMA v R 2003 SLT 4 and Newman Shopfitters Limited v M J Gleeson Group 2003 SLT 83 the last of which, while it was dealing with the application of Rule 16.2(1) of the Ordinary Cause Rules, was obiter but instructive.

[22]      These cases were said to be illustrative of the approach to be adopted in relation to both competency and the exercise of discretion.

[23]      In conclusion, it was submitted that there are two failures by the Pursuer's agents, namely (1) the failure to enrol the motion to sist, which should not be excused, and (2) the summons should have been lodged for calling in January 2002 and the omission is not being addressed until February 2004: the requirement to lodge timeously was said to be a peremptory requirement for which the failure was not excusable and, in any event, would cause prejudice.

[24]      In response, senior counsel for the Pursuer pointed out that there was no dispensing power in existence at the time of the decision in McKidd. It appeared that Rule 2.1 or an equivalent first appeared in 1934.

[25]      Rule 2.1 was said to be a procedural mechanism: the rule is a general provision allowing the rectifying of an excusable error arising from an oversight. Any authority dealing with a question of time bar was not a relevant consideration.

[26]      In modern practice a flexible approach should be adopted. There was no reference to Section 19A before Lord Macfadyen, and Lord Mafadyen had not followed McKidd because there was no provision for relief in earlier rules.

[27]      Mention was made of interlocutors in Docherty v Motherwell Bridge and Lee v Algrade (15 November 2001) where Lord Nimmo Smith and Lady Paton had followed the reasoning of Lord Macfadyen in McDonald.

[28]      Surprise was expressed at the Defender's position in relation to the exercise of discretion since both sets of agents had been under the impression that the action was sisted. Reference was made to the Defender's agent's letter dated 21 October 2003 which was part of the chronology and which confirmed that both sets of agents had through that the action had been sisted since the start of 2002. It was this failure which was characterised as a single failure. It was a misunderstanding under which all parties were labouring. The Defender now says in relation to the Article 6 submission that the delay is outrageous but it is a delay in which they were acquiescing. The opposition to the motion was said to be opportunistic. No support was offered for the proposition that this Court was being asked to go further in the expiry of time than any other Court.

[29]      The Defender's agents were content with the situation while both sides were attending to the factual preparation of the case.

[30]      The Pursuer's solicitor tendered their apologies to the Court and to the Defenders' agents for their omission. The Pursuer, of course, conceded the expenses of the motion and of today's appearance. Counsel for the Defenders invited me to reserve the question of expenses as the concession offered by the Pursuer did not go far enough in relation to the question of expenses.

Decision

[31]      In my opinion the first issue which I require to address is whether there has been a breach of the rules. It was not disputed that there had been.

[32]      I next required to determine whether or not that breach arises from a cause which is excusable. It is not disputed in this case that the situation arises from an oversight on the part of an experienced employee of the Pursuer's solicitors. In addition, that oversight was not one which resulted in sight being lost of the case but, on the contrary, preparation proceeded as if the cause had in fact been sisted. I am satisfied that this was a breach which can be characterised as excusable.

[33]      The lapse of additional time since the expiry of a year and a day was a factor which I required to take into account. In McDonald v Kwok it was said that with the passage of time the successful invocation of the dispensing power fades to negligibility. In the present case it had been submitted that this lapse of time is the longest which a court has been asked to consider.

[34]      That particular observation in McDonald was obiter and in any event is not binding on me. In addition, I do not construe it as meaning other than that the extent of the lapse of time is a factor to be borne in mind when considering the exercise of the discretion conferred by Rule of Court 2.1.

[35]      In the context of delay it was also submitted that the lapse of time in this case resulted in a beach of the Defenders' rights under Article 6 of the European Convention on Human Rights. I accept that the discretion conferred under Rule of Court 2.1 must be exercised in conformity with Article 6. I accept also that the totality of the lapse of time is in that respect a relevant consideration. It is not, however, to be looked at in isolation. In the circumstances here where the parties were actively engaged in the preparation of the case in the mistaken belief that it had been sisted, I am satisfied that there is no breach of the Defenders' Convention rights under Article 6.

[36]      I am also satisfied that the motion is competent, Rule of Court 2.1 being unqualified in its terms, and in the circumstances set forth above, I am prepared to grant the relief sought.

[37]      I accordingly grant the motion.

[38]      I was invited to reserve the question of expenses and I do so.